The defendant insisted in his answer that the bill of sale executed to him for the negroes was intended for his sole benefit, for that James Jones, being indebted to the complainant, went with complainant to Coffield to borrow the sum named in the bill; that Coffield refused it unless the defendant would join in the bond for the repayment of the sum loaned; that James Jones applied to this defendant to join him in the bond, which the defendant refused to do unless said Jones would give him some indemnity, when said Jones agreed to give the bill of sale aforesaid, and that the complainant knew nothing of this; that the complainant had previously signed said bond with said Jones, and without indemnity, and that said bill of sale was executed entirely for the (360) benefit of the defendant, and would not have been taken at all by the complainant. He further answered that the negroes were sold by the executors of Jones, though he forbade the sale and claimed the negroes; that the executors contended that three negroes had been levied on by executions before the date of his bill of sale. The defendant admitted the executors had paid him $800, and agreed to pay him the balance that may be due him on account of the aforesaid suretyship; that the two negroes which were unencumbered by the lien of executions prior to the bill of sale sold for $1,050, and the executors refuse to pay more than that sum.

HENDERSON, J.

Contribution among cosecurities arises not from any contract between them, but from a principle of natural equity — that equality is equity among persons standing in the same situation. And this being now the established and well understood doctrine of a court of equity, it is sufficient to infer an understanding among them of mutual contribution; for men are presumed to act in reference to the laws governing the transaction. Hence it is that a court of law never sustains jurisdiction in cases where one surety seeks contribution from the other; but this principle of equity can only apply in cases where their situations are equal, for equality among persons whose situations are not equal is not equity. If one surety stipulates for a separate indemnity, in this respect his situation is different from that of one who makes no such stipulation; and this indemnity is reached in favor of his cosecurity, upon the ground either that it was intended for the benefit of all or that the taking it was a fraud upon the others. In such case, courts of equity convert him into a trustee, not permitting him to allege his own turpitude or selfishness as a protection; for they enter into the agreement under a belief of perfect equality, trusting apparently to the same laws of indemnity, and to the united exertions of each other, to avoid harm (361) severally; therefore, to take an indemnity is a fraud upon the rest, and more especially as it lessens the ability of the principal to indemnify the others; and if taken without such secrecy, it is presumed to be designed for the benefit of all and an indemnity fairly obtained. And such indemnities may be fair, and which the surety has a right to use exclusively for his own benefit, while he is indemnified; if more than sufficient for that purpose, the excess should be communicated to the other sureties, first, because it gives to the creditor an equitable lien on such indemnity, and the creditor should cede, and in equity is supposed to cede, to a suffering surety all his means and facilities in enforcing and securing payment; and, secondly, from the intimate connection subsisting between them, as being engaged in one common league, we have only to appeal to our own bosoms to ascertain the benevolent feelings excited by such connection, and the dictates of benevolence become duties, when not prejudicial to ourselves; but in observing its dictates, we are not bound to encounter hazard or trouble, and, therefore, where this surplus lien is sacrificed to our good or safety in that transaction, the cosurety has no right to complain.

The facts of this case preclude all idea that the complainant entered into the engagement under a false appearance of equality, and it affords as little evidence that it was designed also for his benefit, for he attested the instrument creating the lien. In truth, this appears to be a fair and explicit transaction. The complainant was willing to become Jones's security without a lien and without the participation of the defendant. Such proffer was made before the defendant was called on. Application was then made to the defendant, not at the instance of the complainant, to aid him in encountering the risk, but the money could not be procured without an additional name on the paper; in this situation, the defendant stipulates for a lien, and this within the knowledge and presence of the complainant, who required none, and negatived all idea that the defendant was acting for their joint benefit by attesting the (362) instrument creating the lien. He has, therefore, no claim, either on the ground of fraud or intention, and the claim to the excess, I think, stands on an equally slender foundation. Had the defendant wantonly or capriciously discharged the excess of the lien, the complainant would have had cause of complaint. But if the defendant, for his own ease and convenience in the transaction, sacrificed it, he has none. All he can ask is that he should have it when it is not longer of any service to the defendant. Good faith as to this is all that equity requires. If by sacrificing the excess he more promptly, and with less trouble and risk, obtained an indemnity, who has a right to complain? On whose rights or labors has he trespassed? Not on the complainant's. But I do not view the transaction at the sale of the negroes by any means as an abandonment; it may be so, but the answer does not admit it. But, as I have said before, that is entirely immaterial. If he did so, it was for his accommodation, to avoid controversy, to make himself perfectly safe. In this he has violated no obligation, at least none which a court of justice recognizes.

PER CURIAM. Bill dismissed with costs.

Cited: Fagan v. Jacocks, 15 N.C. 264; Hall v. Robinson, 30 N.C. 60; Long v. Barnett, 38 N.C. 634; Comrs. v. Nichols, 131 N.C. 505.