Opinion
No. 70-590
Decided August 17, 1971. Rehearing denied August 31, 1971. Certiorari granted October 4, 1971.
Widow satisfied judgment entered on a note which note had been joint and several obligation of widow and decedent. From allowance of her claim against decedent's estate for one-half amount of judgment, heirs appealed.
Affirmed
1. CONTRIBUTION — Joint and Several Obligation — Obligor Pays Judgment — May Recover — Co-Obligor. Where a creditor recovers a judgment on a contractual obligation for which there are two or more co-obligors jointly and severally liable, an obligor who is compelled to pay the whole or more than his share of such judgment may recover contribution from his co-debtors.
2. EXECUTORS AND ADMINISTRATORS — Joint and Several Judgment — Widow and Executor — Widow Paid — May Recover — Estate. Widow, when compelled to pay the whole of a joint and several judgment entered against her and decedent's executor, was entitled to recover from the estate one-half of the amount she paid the judgment creditor.
Appeal from the District Court of Morgan County, Honorable Roy M. Briggs, Judge.
John A. Kintzele, for plaintiffs-appellants.
Sherman E. Walrod, Francis A. Benedetti, for defendants-appellees.
This appeal involves proceedings in the Estate of Henry Linker, Deceased, which occurred subsequent to the decisions of this court in Linker v. Linker, 28 Colo. App. 136, 470 P.2d 882, and Linker v. Linker, 28 Colo. App. 131, 470 P.2d 921. After those cases were decided, the trial court allowed a claim filed against the estate by Gretta Linker, widow of the decedent, for one-half of the amount paid by Mrs. Linker to satisfy a judgment obtained by the payee of a note which was the joint and several obligation of Mrs. Linker and the decedent. Henry L. Linker and Clarence Linker, who are heirs and beneficiaries of the estate, seek to reverse the allowance of this claim.
The facts on which the claim is based are not in dispute. Gretta Linker and the decedent were married in December of 1960. On January 22, 1961, they acquired title as joint tenants to certain real property in Fort Morgan, Colorado. On September 5, 1961, Mrs. Linker and the decedent executed a note by which they jointly and severally promised to pay to the order of the Commercial Savings Bank of Sterling, Colorado, the sum of $8,307. This note was secured by a deed of trust on the real estate which they owned as joint tenants. After Henry Linker's death on July 10, 1965, the bank filed a claim against his estate for the unpaid balance of the note. The claim was not pursued, and the bank, with leave of court, brought an action in the district court against Henry L. Linker, Executor of decedent's estate, and Gretta Linker. In that action a judgment was entered against Gretta Linker and Henry L. Linker as executor of the Estate of Henry Linker, Deceased, jointly and severally, in the amount of $11,060. The court also decreed that the property be sold on foreclosure. Subsequently, Gretta Linker satisfied the judgment, redeemed the property, and sold it. She then filed her claim for contribution against the estate, claiming one-half of the amount of the judgment which she had paid.
[1] It is the general rule that where two or more co-obligors are jointly and severally liable on a contractual obligation and a creditor recovers judgment thereon, an obligor who is compelled to pay the whole or more than his share of such judgment may recover contribution from his co-debtors. Galligan v. McLean, 78 Colo. 468, 242 P. 74; 18 Am. Jur. 2d Contribution § 58.
In applying this rule, the courts, in a majority of jurisdictions, have held that a surviving spouse is entitled to contribution out of the estate of the deceased spouse in reimbursement of the payment by the surviving spouse of more than his share of the joint obligation, even though the debt is secured by real property, title to which devolved upon the survivor by operation of law. Re Keil, 51 Del. 351, 145 A.2d 563, 76 A.L.R.2d 996; and see cases collected in Annot., 76 A.L.R.2d 1004.
The rationale of the majority rule, as stated in Re Keil, supra, is that the right of contribution flows from the debt, not from the mortgage lien. The incidental existence of collateral in the hands of the creditor is regarded as immaterial in enforcing this right. The debt is a joint and several obligation and, as between the obligors, each of them is liable for one-half of the debt.
[2] In accordance with the majority view, we hold that Gretta Linker, when compelled to pay the whole of the joint and several judgment entered against her and decedent's executor, was entitled to recover from the estate one-half of the amount she paid to the judgment creditor. Further, in satisfying her claim for contribution, the amount of her claim cannot be reduced by application of any portion of the proceeds received from the sale of the security.
The judgment is affirmed.
JUDGE COYTE and JUDGE DUFFORD concur.