Dennis v. Gillespie

24 Miss. 581

• Court: Court of Appeals of Mississippi
• Decided: October 15, 1852
• Status: Published

Opinion

Mr. Justice Fisher

delivered the opinion of the court.

The complainant, as administrator of the estate of Stephen Granberry, deceased, filed his bill in the superior court of chancery against the defendant in error, alleging .that in 1838, the intestate and Gillespie became joint securities on a note made by 'R. and E. D. Kent for $2,535.97, to Nelson, Carleton & Co., upon which judgment was recovered against all the signers in the circuit court of Hinds county, and that the money due thereon has been wholly paid by the complainant as Gran-berry’s administrator. The bill is filed against Gillespie, to compel him to contribute as a co-surety a moiety of the sum paid by complainant.

Gillespie’s answer, cross-bill, and proof, make this case a defence to the bill: that in 1838, a valuable tract of land belonging to E. D. Kent, one of the principals in the note, and a son-in-law of Granberry, was sold by the marshal under execution, when Granberry, in pursuance of an arrangement between himself and Kent, became the purchaser; that Kent furnished the sum of $2,810, with which to pay in part Gran-berry’s bid at this sale. It also appears that Kent, at the sale, used his influence with his friends and others, to induce them not to bid against Granberry, as he (Kent) was interested in the purchase.

The facts very clearly show, that the purchase was fraudulent as to Kent’s creditors, and that Nelson, Carleton & Co. could, if necessary, have subjected the land, as the property of Kent, to the payment of their debt. One of two propositions is certainly established. The land was either purchased by Gran-berry for the benefit of Kent, or he became Kent’s debtor to the amount of $2,810; a sum at that time exceeding the amount of the note of Nelson, Carleton & Co. It is, therefore, wholly immaterial in what light the transaction may be viewed, the same result follows; and we are bound to believe that the tract of land was purchased by Granberry at a price greatly below its value, from the direct testimony on the subject, as well as from the fact that Kent, the owner, exerted his influence at the sale to stifle competition amongst the bidders, or those who otherwise might have been bidders. To suppose that he was not interested in the purchase by his father-in-law, is not only to make his conduct obnoxious to the plainest principles of law and equity, but, at the same time, to deny to him ordinary common sense. He comes forward himself as a witness, and testifies to the fact, that he was anxious to prevent competition at the sale, and also that he advanced the sum named, as part of the purchase-money. We cannot suppose, that in his embarrassed condition, he intended to make his father-in-law a present of this money, because a man must be just before he shall be generous. Neither can we suppose, for the same reason, that the father-in-law intended to receive it as a present. But we must suppose that Kent was the real party to be benefited by the purchase, and that Granberry’s name was used because the law would not sanction the purchase in the name of Kent.

We do not, however, deem it at all necessary to offer any special reasons, to sustain a proposition which all must admit. Under no view of the question is the complainant entitled to relief. The right of contribution amongst sureties rests not in contract, but in natural equity, on the ground of burden and benefit. If a party base his right to recover upon principles of natural equity, the defendant may appeal to the same principles in his defence. The complainant has shown as his equity the payment of the whole debt of the principal, by the estate of Granberry, and thus makes out a primd facie case to relief; while the defendant on his part has shown, that Granberry received a sum of money exceeding the amount of the debt, before it was due, from the principal, besides purchasing in part with the money thus received, a valuable tract of land at a reduced price. To state the case, is to decide it.

Decree affirmed.