and one of the legatees has been paid more than his proportion, he may be compelled, after all the debts have been ascertained, to refund and contribute in favor of the unpaid debts; and he is required to do this with a view to an equalization of burdens, either at the instance of creditors, legatees, or the executor himself.25

When land is charged with the payment of a legacy, or an estate with the portion of a posthumous child, every part of the land is bound to make contribution.26

Partners may also be compelled to contribution when one of them has paid more than his share of the partnership debts, and when, upon the winding up of the affairs of the firm, there appears to be a balance in his favor."

When there are part owners of property, tenants in common, joint tenants, or other persons holding property together, and some of them advance more money than their shares for expenses or other purposes touching such property, those who are in advance are entitled to contribution from the others in order to an equalization.28

When one of several sureties has paid the whole debt for which they were jointly bound, he has a right to contribution from the others.

The ground of relief is found in equitable considerations, and exists independently of any implied contract which furnishes the ground for the remedy at law. The ordinary advantages of equitable remedies over the legal, in case of numerous parties with confused and conflicting interests, obtain in cases under the present head,30 and where one surety is insolvent, he will be disregarded in apportioning the contributory shares in equity; or in case of the death of a surety, his representative must contribute; 32 and where there are distinct heads of suretyship with different penalties, contributory shares will be proportioned to the penalties, at least in some cases.

33

31

Contribution takes place in another case. When, in order to save a ship, part of the goods on board are thrown into the sea, then there must be an apportionment of the loss among the ship's freight and the goods which have been saved, to indemnify the owner of those lost in a just proportion; this contribution is called general average. If, in a case of this kind, the unfortunate owner of the goods cast overboard had no remedy but an action at law, he would be compelled to sue each owner of other goods separately for his contri

34

25 Jeremy, Eq. Jur. 364, 518; 1 Story, Eq. Jur. 8 503; Noel v. Robinson, 1 Vern. Ch. 94; Walcott v. Hall, 2 Brown, Ch. 305; Davis v. Davis, 1 Dick. Ch. 32; Jewson v. Grant, 3 Swanst. Ch. 659; Averall v. Wade, Lloyd & G. Ir. Ch. 264, and note. Statutory provisions exist to the same effect in several of the states, giving the executor a remedy at law.

26 Armistead v. Dangerfield, 3 Munf. Va. 29; Stevens v. Cooper, 1 Johns. Ch. N. Y. 425. 272 Story, Eq. Jur. 504; see Waring v. Cam, 1 Pars. Eq. Cas. Penn. 516, 523; Wright v. Hunter, 1 East, 20; 5 Ves. Ch. 792; Sells v. Hubbell, 2 Johns. Ch. N. Y. 397; Niven v. Spickerman, 12 Johns. N. Y. 401; Dunham v. Gillis, 8 Mass. 462.

28

Rogers v. Mackenzie, 4 Ves. Ch. 752; Lingard v. Bramly, 1 Ves. & B. Ir. Ch. 114.

29 White & T. Lead Cas. Eq. 60, n.; Stirling v. Forrester, 3 Bligh, Hou. L. 490; Campbell v. Messier, 4 Johns. Ch. Ñ. Y. 334; Norton v. Coons, 7 N. Y. 33; see Taylor v. Savage,

12 Mass. 98.

So Craythorne v. Swinburne, 14 Ves. Ch. 159; Coope v. Tuynam, 1 Turn. & R. Ch. 426; Hyde v. Tracey, 2 Day, Conn. 422; Ransom v. Keyes, 9 Cow. N. Y. 128; Taylor v. Savage, 12 Mass. 98; Cutter v. Emery, 37 N. H. 567.

That

31 Cowell v. Edwards, 2 Bos. & P. 268; Deering v. Winchelsea, 1 Cox, Ch. 318. this is now the doctrine at law, see Mills v. Hyde, 19 Vt. 59; Henderson v. McDuffee, 5 N. H. 38; Jones v. Blanton, 6 Ired. Eq. No. C. 116.

32 Primrose v. Bromley, 1 Atk. Ch. 89.

83 Deering v. Winchelsea, 1 Cox, Ch. 318; Coope v. Tuynam, 1 Turn. & R. Ch. 426; Story, Eq. Jur. Redfield, ed., 8 497, a. See also before, 1432-1434.

34 Marshall, Ins. B. 1, c. 12, s. 7; Abbott, Shipp. 342; Bouvier, Law Dict. Average.

bution, because one decision would not be conclusive on the others. The amount to be recovered would have to depend in every case on the value of all the interests to be affected, which could scarcely be estimated alike by different juries; besides, some of the parties liable to contribution might be insolvent, and not able to contribute any thing to the general loss.3

35

There are cases where the owners of an estate will be required to make contribution; as, where a judgment has been rendered against a man, and it is binding on a tract of land, afterward the owner divides it into four parts, and sells a part to each of four persons, if one of them, to save his own land, pays the whole debt, he will be entitled to contribution from the others.36

In all these cases a writ of contribution would lie at the common law, or in virtue of the statute of Marlebridge, but the remedy would be very imperfect. On the contrary, a court of equity, having the capacity to bring all the parties before it, and to refer the matter to a master, to take an account, and adjust the whole apportionment at once, grants a sure, safe, commodious and expeditious remedy.

37

3941. When treating of divisible and indivisible agreements, we may remember that it was stated that when a debt is due and payable by one person to another, although susceptible of division by its nature, it must be executed between the parties as if it could not be divided. In other words, when the contract is entire it cannot, in general, be apportioned. Annua nec debitum judex non separat ipsum is an applicable maxim in such cases.

Though courts of equity will not, in general, apportion an entire contract, yet, when equitable circumstances connected with the case give it another aspect, they will grant relief, and redress the wrong which would arise from a strict legal construction; for example, when an apprentice gave a fee to his master to teach him his business, and after a considerable time had elapsed he was discharged from the indentures of apprenticeship in consequence of the misconduct of the master, it was decreed that the indenture should be given up and part of the apprentice fee paid back.88

In another place the rule with regard to the apportionment of rents among the different owners of the fee, and for various spaces of time, has been considered. This will abridge our further examination of the subject.

39

There are many cases where the liabilities will be apportioned among the owners of an estate, and equity will entertain a bill for that purpose. Take, for example, the case of a mortgage over different parcels of land, afterward sold to different persons, each holding in fee in severalty the portion he has purchased. In this case, each is bound to contribute to the common burden in the proportion which his land bears to the whole, which is subject to the mortgage.10 A court of equity in this case, having the power to call all the parties before it, can alone render ample justice.

35 Hallet v. Buisefield, 18 Ves. Ch. 190; Cope v. Doherty, 4 Kay & J. Ch. 367. 36 Harbert's Case, 3 Coke, 12.

37 Before, 694, 698.

38 Lockley v. Eldridge, Cas. temp. Finch, 128; Savin v. Bowdin, Cas. temp. Finch, 396; see Hale v. Webb, 2 Brown, Ch. 80; Thurman v. Abell, 2 Vern. Ch. 64, but this is decided on a different principle.

39 Before, 697.

40 Harbert's Case, 3 Coke, 12, 14; Harris v. Ingledew, 3 P. Will. Ch. 98; Cheeseborough v. Millard, 1 Johns. Ch. N. Y. 409; Stevens v. Cooper, 1 Johns. N. Y. 425; Skeel v. Spraker, 8 Paige, Ch. N. Y. 182.

A question of some importance has arisen in such a case as this, where the subsequent purchasers or incumbrancers have taken at different times as to the proportion of the burden chargeable upon each part of the estate. In some jurisdictions it is held that as between the purchasers they are to be charged in the reverse order of the time of purchase, the last purchased first to its full value, and so on. Cowden's Estate, 1 Penn. St. 267;

A court of equity alone has the capacity to do complete justice where different persons have an interest in an estate under mortgage; as, for instance, tenants for life or in tail, remainder-men, tenants in dower, tenants by the curtesy, or for a term of years. When the mortgage is to be redeemed or paid, they must contribute in certain proportions, and the interest must also be kept down in the same proportion. The remedy at law would be very imperfect, because all the persons having an interest could not be made parties to the action. In equity, on the contrary, the court can call all the parties before it and administer exact justice to them all."

3942. In cases of liens or pledges, it is not unfrequently necessary to have an account in order to ascertain what are the rights of the owner and of the creditor; these can be adjusted by a court of equity.

Other cases involving accounts arise either from privity of contract, or relation, or from adverse or conflicting interests; such are accounts between landlord and tenant, where there have been receipts and expenditures for a great length of time.

In the case of waste, where the wrong-doer has made a profit, he may be called to an account in equity; as, where a tenant had opened new mines and made a profit out of them and a discovery was required, a court of equity could compel the wrong-doer to make an account.

Upon an examination of these cases, it will be found that the court generally assumes jurisdiction on some equitable ground, such as fraud, accident, or mistake; or the want of a discovery; or because there is some impediment at law, and for this reason justice cannot be obtained there; or that there exists some constructive trust; or that the interference of the court is required to prevent a multiplicity of suits; these being the grounds upon which courts of equity assume a jurisdiction.

3943. Dower may be recovered in courts of law, and in the United States great facilities have been given for its recovery, so that recourse is seldom had to courts of equity; besides, the simplicity of our titles enables courts of law in general to do complete justice. Courts of equity, however, have concurrent jurisdiction, particularly when a bill of discovery is required in order to obtain a just account of the rents and profits of the estate; as, when the title-deeds of dowable lands are kept from the widow.

In some cases, indeed, the remedy at law is very imperfect. For example, when the widow dies after judgment and before the damages are assessed, her personal representatives lose their damages; and if the tenant dies during the same period, she cannot recover. On the contrary, if at the time of filing a bill the plaintiff's legal right to damages is not gone, the court will decree an account of the rents and profits to their respective representatives.13

Holden v. Pike, 24 Me. 427; Wikoff v. Davis, 3 Green, Ch. N. J. 24; Bradley v. George, 2 All. Mass. 392; George v. Kent, 7 id. 16; Gaskill v. Line, 2 Beasl. Ch. N. J. 400; Schuyser, v. Teller, 9 Paige, Ch. N. Y. 173; Green v. Ramage, 18 Ohio, St. 428; Lyman v. Lyman, 32 Vt. 79; Carter v. Neal, 24 Ga. 346; and this appears to be the sounder doctrine. It has, however, been held that the incumbrance should be borne rateably according to the values of the estates. Barnes v. Rackster, 1 Younge & C. Ch. 401; Brigden v. Bignold, 2 id. 377; Averall v. Wade, Lloyd & G. Ir. Ch. 252; Dickey v. Thompson, 8 B. Monr. Ky. 312; Life Ins. Co. v. Cutter, 3 Sandf. N. Y. 176.

411 Story, Eq. Jur. ?? 485, 487, 488; 1 Powell, Mortg. 311; White v. White, 4 Ves. Ch. 33; Allan v. Backhouse, 2 Ves. & B. Ch. Ir. 70; Penryn v. Hughes, 5 Ves. Ch. 107; 1 Fonblanque, Eq. B. 1, c. 5, 9, and note. A tenant for life of an equity of redemption is bound to pay the interest on a mortgage of the premises, although he cannot be required to pay the principal. Saville v. Saville, 2 Atk. Ch. 463; Shrewsbury v. Shrewsbury, i Ves.

Ch. 233.

42 See White v. Parnther, 1 Knapp, Priv. Coun. 226.

43 Park, Dower, 330, 339; Jeremy, Eq. Jur. 306; 1 Story, Eq. Jur. 8 624; Curtis v. Curtis, 2 Brown, Ch. 632.

3944. The third remedy in particular cases, where courts of law and courts of equity have concurrent jurisdiction, is partition. The latter courts interfere only because the remedy at law is inadequate and imperfect; and, without the aid of a court of equity to promote a discovery, or to remove some obstruction at law to the right of recovery, or to grant some other equitable redress, justice could not be done;" or to prevent a multiplicity of suits."

Another reason why a court of equity should interfere is that such a court, with a view of making a more convenient and perfect partition of the premises, may decree a pecuniary compensation, in order to equalize them, to one of the parties for owelty of partition. At law there is no authority to give owelty, the jury being required to make partition of the premises between the parties, regard being had to their true value."

Agar v. Fairfax, 17 Ves. Ch. 551; Mitford, Eq. Pl. 110; Jeremy, Eq. Jur. 303; 1 Fonblanque, Eq. B. 1, c. 1, 3, note (ƒ).

45 Mitford, Eq. Pl. 110, n.

46 Coke, Litt. 169, a; 1 Whart. Penn. 292; 1 Watts, Penn. 265; Hughes, Abr. Partition & Partner, & 2, n. 8; Calmody v. Calmody, 2 Ves. Ch. 570; Wilkin v. Wilkin, 1 Johns. Ch. N. Y. 116.

47 Coke, Litt. 167, b.

533

CHAPTER VII.

THE EXCLUSIVE JURISDICTION OF COURTS OF EQUITY.

3946-3971. Trusts.

3947-3950. Assignments.

3947. General assignments.

3949. Particular or special assignments.

3950. The assignment of trust property.
3951. Marriage settlements.

3952. Mortgages.

3953-3957. Trusts created by will.

3954. When no trustee has been appointed.

3955. When the trustee refuses to execute the trust.

3956. When the persons who are to take, and the property given, are uncertain.

3958-3970. Implied trusts.

3959-3967. Trusts implied from the intention of the parties.

3960. Resulting trusts.

3962-3966. Equitable liens.

3963. Liens for the purchase money.

3964. Liens for repairs and improvements.

3967. Cases where property is purchased subject to a charge. 3968-3970. Implied trusts created without the intention of the parties. 3969. The payment of money by mistake.

3970. How far trust funds may be traced.

3971. Foreign trusts.

3972. Election.

3978. Satisfaction.

3980-3989. Charities.

3981. The history of charities.

3982. The jurisdiction of charitable uses.

3983. The form of charitable gifts.

3984. The construction of charitable gifts.

3986. Void charities,

3990-3994. Infants.

3991. The appointment and removal of guardians.

3993. When an infant is considered a ward of chancery.

3994. The maintenance of infants.

3995-4012. Married women.

3996. The condition of the wife during coverture.

3997-3998. Contracts between husband and wife.

3997. Contracts made before marriage.

3998. Contracts made after marriage.

3999-4010. The separate estate of the wife.

4000. What is the wife's separate estate.

4002. How a married woman acquires separate property.

4004. How far a wife's separate property can be bound during coverture. 4005-4009. The wife's equity to have a settlement out of her own property. 4005. Nature of the wife's equity, and how enforced.

4009. Wife's equity, how abandoned or lost.