Wagenseller v. Prettyman.

The bill charges that on the 11th day of July, 1871, the said Gideon II. Rupert, sold and conveyed the undivided half of said premises to one John D. McIntire, for nine thousand dollars, and loaned the proceeds of said sale at eight per cent. interest, which interest has been regularly collected by Rupert during his life-time, and by his executors since his decease, and that the interest thus collected, together with the principal, amounts to the sum of eighteen thousand dollars: and that at the time of said sale, said Gideon II. Rupert leased the other half of said property to said McIntire, and collected the rents therefrom, amounting to one thousand dollars per year, until the 16th day of February, 1877, when he died, leaving a last will and testament appointing said Joshua Wagenseller and Asa H. Danforth his executors, with full power to sell and dispose of his estate.

That said exucutors continued to collect said rent from said McIntire until the day of-- -1877, when they sold said undivided half of said premises to McIntire for five thousand dollars, and that the rents collected by the executors. amounted to six thousand dollars.

Also

That all of said moneys are still in the hands of said executors, in trust, for the use of said sureties on said bonds. charges that suits were brought and judgment rendered on said bonds, for large sums, of which Gideon H. Rupert in his life-time paid twelve thousand dollars, and Prettyman three thousand five hundred, and that Prettyman also paid out one. thousand dollars in defending said suits, which was for the benefit of all the sureties in the bonds.

Claims that there is in the hands of the executors the sum of twenty-five thousand dollars, rightfully belonging to said sureties, and prays that the executors be decreed to pay to complainants and other securities, the money so advanced and paid by them.

The executors answer the bill, denying most of the material allegations of the same; they expressly deny that the nine thousand dollars, or any part thereof, was ever paid by McIntire to Rupert in his life-time, or to them since his death.

Admit that they sold one-half of the property for five-thou

Wagenseller v. Prettyman.

sand dollars, but deny the payment thereof, except one thousand dollars.

The court, by its decree, charged the executors with nine thousand dollars, and interest thereon at eight per cent. per annum from July 11, 1871, for the undivided half of the distillery property, sold by Gideon H. Rupert, in his life-time, to McIntire, and with five thousand dollars and ten per cent. interest thereon from the 15th day of June, 1878, for the undivided half sold by the executors to McIntire, making in all, including interest, $20,759.15.

The decree also finds that Gideon II. Rupert had paid to the United States as one of the sureties on said distillery bonds, $13,101.61, and that Prettyman had paid, for expenses in defending suits brought on the bonds, $1,000, and also by the sale of his property, on a judgment rendered on one of the bonds, $3,500.

To these sums so paid by Rupert and Prettyman, interest was added, and a decree rendered requiring the executors to pay to Prettyman the sum of $4,795.24.

The government of the United States recovered judgment. against Prettyman and others, as the sureties of C. J. D. Rupert on his distillery bonds, and the land of Prettyman was sold by the marshal on an execution issued on one of these judgments, and purchased by the plaintiff in execution for $3,500.

Appellants now insist that Prettyman had no title to the premises so sold, and that the court below erred in allowing him a credit against his co-sureties for the amount of such sale.

We find no evidence in the record to show that Prettyman was not the owner of some interest in the land subject to sale on execution.

The land was levied upon and sold as Prettyman's property, and whatever interest he had in it passed to the purchaser, and so long as the purchaser makes no complaint of want of title, none can be heard from others.

The liability of the co-sureties of Prettyman to the govern

Wagenseller v. Prettyman.

ment was lessened to the extent of the bid, and the result is the same to them as if Prettyman had paid the money.

It is next insisted that the court erred in allowing Prettyman $1,000 for money expended by him in defending the suits brought in the Federal court against the sureties on C. J. D. Rupert's distillery bond.

A surety may recover contribution from his co-surety for the costs and expenses of defending a suit against him for the debt, if the defense was made under such circumstances as to be regarded as prudent. Brandt on Suretyship, Sec. 274; Fletcher v. Jackson, 23 Vt. 581; Marsh, adm'r, v. Harrington, 18 Vt. 150; American notes to Deering v. Winchelsea; White and Tudor's Leading Cases in Equity.

The evidence in this case leaves no doubt that it was prudent and for the interest of the sureties that said causes should be defended; and as the proof shows that Pretty man actually paid out in the defense of said suits the amount allowed him by the decree, we think the court committed no error in allowing the same.

A careful examination of the evidence leaves no doubt that G. H. Rupert advanced the money paid to the United States at the time of the sale to procure the title to the distillery property, and that no other money was paid by any of the paties for that purpose.

The agreement of the trustees was to account for the net proceeds of the trust property, and as he advanced the $2,000 to procure the title to the property in the first instance, the same should have been allowed to his executors, with interest thereon.

We think the court erred in charging appellants with the whole amount for which the property was sold, without deducting therefrom the $2,000 paid by the trustees to procure the title to the trust property.

As this case must be remanded for further proceedings, we think it proper to say that there is an entire want of evidence in the record to support the case made by the bi.

The bill charges that the distillery property was sold for cash, and that the money is in the hands of the executors as a

Wagenseller v. Prettyman.

trust fund, and asks to have the same applied to the purposes of the trust. These allegations are denied by the answer.

There is no proof in the record, either by deposition, by certificate, by the master's report, or by recitals or findings of the decree, tending to sustain these allegations of the bill. On the contrary, McIntire, the purchaser, and the only witness upon this point, testifies that with the exception of $1,000 paid down, notes were given for the property, and except a portion of the interest, they have not been paid. What has become of these notes, or why they have not been collected does not appear.

If they are still in the hands of the executor, and McIntire is solvent, no reason is perceived why they should not be collected, either by the executor or a receiver to be appointed. for that purpose, and the proceeds applied as required by the terms of the trust.

If it is contended that G. H. Rupert was guilty of a breach of trust, and thereby rendered himself liable for the full value of the trust property, then the bill should set out the particular acts or omissions of duty relied upon to charge him, so that an issue could be formed and the evidence taken with reference thereto.

No such issue has been made by the pleadings or tried by the court in this cause.

The allegations and proof must correspond, and a complainant will not be entitled to relief, although the evidence may establish a clear case in his favor, unless there are averments in the bill to support the case made by the proof. Heath v. Hall et al. 60 Ill. 344.

The decree is reversed and the cause remanded.

Reversed and remanded.

Vanarsdale v. Andrews.

JAMES H. VANARSDALE ET AL.

V.

JACOB ANDREWS.

PRACTICE BILL OF EXCEPTIONS.-There being no proper bill of exceptions filed in this case, the judgment is affirmed.

APPEAL from the Circuit Court of Greene county; the Hon. A. G. BURR, Judge, presiding. Opinion filed September 29, 1880.

M. JAMES W. ENGLISH, for appellants.

Mr. W. M. WARD, for appellee.

PER CURIAM. The record in this case is in such condition, that we cannot reach the merits of the controversy.

It appears from the transcript that the court regularly convened on the day fixed by law for the commencement of the term, but aside from this we cannot learn on what day of the month or of the term the judgment was rendered, only from the recital in the appeal bond. Forty days were given in which to file a bill of exceptions. There appears in the transcript a paper purporting to be a bill of exceptions, but it bears neither date nor file-mark, nor is there any recital of the clerk that it ever was filed, and the same is without the seal of the judge who tried the case.

There being no proper bill of exceptions in the record the judgment is affirmed. Judgment affirmed.