APPEAL from a judgment of the Superior Court of the County of Maricopa. John P. Clark, Judge. Judgment reversed as to plaintiff and remanded with directions; affirmed as to defendant.
Messrs. Townsend, Jenckes & Wildman, for Appellant and Cross-Appellee.
Mr. D. V. Mulhern and Mr. B. H. Gibbs, for Appellee and Cross-Appellant.
[58 Ariz. 334] ROSS, J.
This is an action by Mary Graves Brown against E. E. Brown, the executor of the estate of E. O. Brown, deceased, upon a verified claim against the estate. The basis for plaintiff's claim is that she and decedent were husband and wife; that during coverture [58 Ariz. 335] she joined with her husband in executing a note for $5,000, bearing interest at 7% per annum, and a mortgage on her separate property to secure the same; that said mortgage was foreclosed and her property taken and sold in execution thereunder in satisfaction of the judgment, which amounted to $6,239.04, including interest, costs and accruing costs, and costs of sale under the execution. The claim, in due form, was on July 6, 1938, presented to the executor and by him rejected.
The defense consists of a general denial and an answer in the nature of a counterclaim for goods, wares and merchandise defendant alleges his intestate furnished plaintiff between December 1, 1929, and November 14, 1936, amounting to $3,228.09.
The case was tried without a jury and judgment was entered that plaintiff take nothing by reason of her complaint, and that defendant recover nothing on his counterclaim, and that each party pay his own costs. Both have appealed from the judgment.
We consider plaintiff's appeal first. Plaintiff and the decedent intermarried June 11, 1928. Both had been married before and each at the time had his separate property, the wife owning a citrus orchard and operating a guest ranch, and the husband owning and operating, in Scottsdale, an ice plant. He owned cotton ranches and cattle ranches, which he operated, and he was interested in the local Scottsdale bank and the light and power company. Among the property owned by the wife at the time were Lots 10, 11 and 12 in Block 1 of the Town of Scottsdale, which lots were vacant and unimproved, of the value of $1,200 to $1,500. During the years 1928 and 1929 the husband constructed on said lots a home, known as the "Green House," at a cost of something like $12,000, and soon thereafter they moved into it and occupied [58 Ariz. 336] if for something less than four years as their home. The only evidence as to the reason the husband built said home is that he had promised to do so.
On August 1, 1931, E. O. Brown and the plaintiff, his wife, executed and delivered to the State Securities Corporation their joint promissory note for the sum of $5,000, with interest at the rate of 7% per annum until paid, and, as security for the payment of such note, executed and delivered a realty mortgage upon said Lots 10, 11 and 12 of Block 1 of the Town of Scottsdale. Subsequently, in due course, the note not having been paid, the mortgage was foreclosed and the property sold as indicated in the claim filed against the estate. The theory upon which the plaintiff presented a claim against the estate of E. O. Brown is that she was a joint maker of the note and that having paid it out of her separate property she is entitled to contribution from such estate.
We think the rule is well settled that, where one of two obligors equally bound pays off and discharges the obligation, he is entitled to recover from the other the proportion that he was obligated to pay. The rule is well stated in 13 American Jurisprudence 6, section 3, as follows:
"The principle of contribution is equality in bearing a common burden. The general rule is that one who is compelled to pay or satisfy the whole or to bear more than his just share of a common burden or obligation, upon which several persons are equally liable or which they are bound to discharge, is entitled to contribution against the others to obtain from them payment of their respective shares. In other words, when any burden ought, from the relationship of the parties or in respect of property held by them, to be equally borne and each party is
in aequali jure, contribution is due if one has been compelled to pay more than his share. The doctrine is founded not upon contract, but upon principles of equity, and assists in the [58 Ariz. 337] fair and just ...