has been applied to a great variety of circumstances": Brandt on Sureties and Guarantors, 3d ed., sec. 245; Baylies on Sureties and Guarantors, 301.

In 1 Story's Equity Jurisprudence, section 327, it is said: "Sureties, also, are entitled to come into a court of equity, after a debt has become due, to compel the debtor to exonerate them from their liability, by paying the debt."

In the case of Thomas v. St. Paul's M. E. Church, 86 Ala. 138, 5 Souh. 508, this court, recognizing this doctrine, employs this language: "No principle in equity is more familiar, or more firmly established, than that a surety, after the debt for which he is liable has become due, without paying or being called on to pay it, may file a bill in equity to compel the principal debtor to exonerate him from liability by its payment, provided no rights of the creditor are prejudiced thereby." The demurrer so far as it questioned the equity of the bill on 183 this ground was properly overruled. See, also, the case of West v. Chasten, 12 Fla. 315, where many decisions are collated.

2. The respondents pleaded the statute of frauds-that the agreement in said bill alleged and sought to be enforced was ineffective, in that a part of the property agreed to be purchased by respondents, and for which an entire and indivisible consideration was agreed to be paid, consisted of considerable real estate situated in various places in Geneva county; that said agreement was not in writing, nor was any note or memorandum thereof in writing signed by respondents or by anyone thereunto authorized, etc.

The bill alleges, in substance, that while Walden was not a party himself to said contract of sale, except as complainant represented his interest and undertook to dispose of the same, the complainant has placed the respondents in the full possession, ownership and enjoyment of the property and choses in action sold them, and said Walden has affirmed and ratified his said action and is satisfied to look to complainant for his share of the proceeds of the sale of said property; that a portion of the property purchased was real estate, and that an entire and indivisible consideration was to be paid for it, and the real estate was situated in different places in Coffee county; that said agreement was not in writing, signed by complainant; that Walden never executed any written agreement to convey, and that Folmar had no authority in writing Am. St. Rep., Vol. 117-3

in the premises from Walden; that a part of the consideration was then and there paid and respondents put in possession of a part of the land, but not in possession of the entire lands. The bill alleges, as stated, that the purchasers were put in possession of the entire lands.

The language of the prayer of complainant's bill is, after requesting a reference to ascertain and report the sum due said several creditors by the firm of Folmar, Walden & Byrd, which the defendants in the contract bound themselves to pay, that the court would "render a decree, requiring the said Tillis & Byrd to specifically perform their said contract by paying the amounts due 184 each of said creditors respectively, and upon their failure to do so, judgment be entered against the said Richard Tillis and Robert E. Byrd for said amount, and that they be also compelled to refund and repay to your orator the debts already paid by him, for which they are liable under said contract." There was no prayer that the legal title to the lands be devested out of Folmar & Walden and be invested in Tillis & Byrd. Indeed, Walden was not a party to the bill.

"Partnership lands in equity and for partnership purposes are to be treated as personalty: 4 Mayfields' Digest, p. 397, sec. 301. Real estate acquired with partnership funds, or on partnership credit, and for partnership purposes, in a court of equity is esteemed partnership property, subject to the payment of partnership debts, in priority of the separate debts of the several partners, and it is not material whether the legal title resides in the partnership or in the several partners as tenants in common, or in the name of one partner only": 4 Mayfields' Digest, p. 398, sec. 321.

It is said in Browne on the Statute of Frauds, fifth edition, section 259, that "where land is owned by a partnership, each partner, of course, is entitled to his proper share of it. And here must be remarked an important exception (for so it seems we are forced to regard it) to the operation of the statute as it affects interests in land. Where two men are found jointly occupying a piece of land, incurring equal expenditures upon it, and enjoying equal profit from it, the relation which from such facts would be presumed to be existing between them is that of joint tenancy, and, as incident to that joint tenancy, upon the death of either the whole would go to the other by right of survivorship. . . . . But.

when the parties are really partners, and the land has been brought into and actually held and used by the partnership for partnership purposes, the courts have dealt with it as partnership property, although the ownership has not been apparently in all the members of the firm, or, if in all, not apparently as partners, but under some other title. . . . . It seems that the earlier authorities to the effect that real estate used for partnership 185 purposes maintains its character of realty, and goes to the heirs of the partners respectively, have been overruled, and that all property, whether real or personal, involved in a partnership concern, is now, upon. the dissolution of the partnership, distributable as personalty, and generally is to be, for ordinary purposes, regarded as stock in trade," to which the statute of frauds is not applicable.

The contract being entire, and the purchaser having gone into possession of a part of the property, there was such part performance, if that were important, as satisfied the statute of frauds. The effect of the act of taking possession of a part is as applicable to entering into the whole as if the whole had been actually entered upon: Smith v. Underdunck, 1 Sand. 579, 581.

"Possession of a tract of land must generally be, from the nature of the case, a possession of a part only as representing the whole. So long, therefore, as the contract under which possession is claimed to have been taken or delivered is an entire contract, though the land consists of several parcels, it would seem more reasonable to hold that possession of one of such parcels was equivalent to possession of the whole," etc. Browne on Statute of Frauds, 5th ed., sec. 475. The exceptions to the plea of the statute were properly sustained.

Under the facts alleged, Walden was not an indispensable party defendant.

Let the decree be affirmed.

Tyson, Anderson and Denson, JJ., concur.

PROCEEDINGS BY SURETY TO COMPEL PRINCIPAL TO DISCHARGE HIS OBLIGATION.

I. Right to Proceed in Equity After Maturity of Debt, 36.

II. Right to Compel Creditor to Sue Principal, 37.

III. Insolvency of Principal or Surety, 38.

IV. Receivership Against Principal, 38.

V. Right to Compel Payment Out of Principal's Estate, 39. VI. Right to Set Aside Principal's Fraudulent Transfer, 39. VII. Right to Foreclose Indemnity Mortgage, 40.

VIII. Dissolution of Partnership, 41.

I. Right to Proceed in Equity After Maturity of Debt. When the liability of a surety has attached in consequence of the default of the principal, the surety may apply to a court of equity to compel the principal to relieve him from his liability before he discharges the debt. Or, in other words, a surety, after the debt has become due, without having made payment himself, may come into a court of equity and compel the principal to pay the debt, making the creditor a party, that he may be at hand to receive the money. In such case, the surety stands in the position of an equitable assignee, and may use the remedies of the creditor at his own risk and cost: Moore v. Topliff, 107 Ill. 241. The rule that when the debt has become payable the surety may file a bill in equity to compel payment by the principal before payment of the debt, in order that he may be relieved from liability, is supported by a long line of cases, among which are the following: West v. Chasten, 12 Fla. 315; Roberts v. American Bonding etc. Co., 83 Ill. App. 463; Meador v. Meador, 88 Ky. 247, 10 S. W. 651; Whitridge v. Durkee's Exrs., 2 Md. Ch. 442; Irick v. Black, 17 N. J. Eq. 189; Delaware etc. Co. v. Oxford Iron Co., 38 N. J. Eq. 151; Allen v. Smitherman, 41 N. C. (6 Ired. Eq.) 341; Stamp v. Rogers, 1 Ohio, 533; McConnell v. Scott, 15 Ohio, 401, 45 Am. Dec. 583; Pride v. Boyce, Rice Eq. 275, 33 Am. Dec. 78; Norton v. Reid, 11 S. C. 593; Henell v. Cobb, 2 Cold. 104, 88 Am. Dec. 591; Miller v. Speed, 9 Heisk. 196; Bishop v. Day, 13 Vt. 81, 37 Am. Dec. 582; Harris v. Newell, 42 Wis. 687; Dobie v. Fidelity etc. Co., 95 Wis. 540, 60 Am. St. Rep. 135, 70 N. W. 482. There can be no doubt of the right of a surety, after a debt has become due, to file a bill to compel the principal debtor to pay, whether the surety has himself been sued or not: Whitridge v. Durkee, 2 Md. Ch. 442; Norton v. Reid, 11 S. C. 593. Or a surety against whom and the principal separate judgments have been obtained may come into equity for aid in subjecting the property of the principal to the payment of the debt, without first advancing or paying the money: Stamp v. Rogers, 1 Ohio, 533. And he may invoke such aid to reach credits of the principal although the principal is insolvent: McConnell v. Scott, 15 Ohio, 401, 45 Am. Dec. 583. The only case found in conflict with the above doctrine is an ill-considered case in Michigan, where the court laid down the rule that a surety is presumed to assume his responsibility deliberately, and if his principal fails to meet his own obligations with due diligence, he cannot appeal to a court of equity for protection, but must first perform his

obligation as surety, and may then sue at law for indemnity: McElroy v. Hatheway, 44 Mich. 399, 6 N. E. 867.

The right of the surety to proceed against his principal to compel him to pay his overdue obligation before such surety pays any part of it seems to be purely equitable, as a surety can have no relief at law against his liability, unless he has made some payment on account of it; but he can proceed in equity to compel his principal to make payment and the creditor to receive it: Hannay v. Pell, 3 E. D. Smith, 432; Taylor v. Miller, 62 N. Č. 365.

A surety may apply to a court of equity for protection as soon as he is endangered: Taylor v. Heriot, 4 Desaus. 227; and upon a bill by the surety to compel the payment of the debt by the principal, neither notice to the creditor of the suretyship nor an allegation of irreparable injury, if the surety is compelled to pay the debt, constitute an essential element of the surety's right to equitable relief: Irick v. Black, 17 N. J. Eq. 189. And a bill by a surety to compel the principal to pay the debt need not allege an attempt by the creditor to enforce such liability against the plaintiff: Alley v. Cooley, 53 S. C. 414, 31 S. E. 634.

If a creditor neglects or refuses to enforce his demand by proper legal proceedings, a surety for such demand or debt may come into a court of equity, and bring in both the debtor and the creditor before the court, may have a decree to compel the debtor to make payment, and thus exonerate the surety from liability: Croone v. Bivens, 39 Tenn. (2 Head) 337; Gilliam v. Esselman, 5 Sneed (37 Tenn.), 86, Either with or without making part payment, the surety may, when the debt is due, sue in equity both the creditor and the principal debtor to compel such debtor to pay the debt out of his own property in exoneration of the surety, and may have enforced for his relief any liens which the creditor has on the estate of his principal: Neal v. Buffington, 42 W. Va. 327, 26 S. E. 172.

II. Right to Compel Creditor to Sue Principal.

It may be stated as a general rule, that a surety may resort to equity if he apprehends danger from the creditor's delay, after the maturity of the obligation, and compel such creditor to sue the principal debtor, though he would probably be required to indemnify the creditor against the consequences of risk, delay, and expense: Nunemacher v. Ingle, 20 Ind. 133; Whitridge v. Durkee's Exrs., 2 Md. Ch. 442; Sasscer v. Young, 6 Gill & J. 243; King v. Baldwin, 2 Johns. Ch. 554, 17 Johns. 384, 8 Am. Dec. 415; Hayes v. Ward, 4 Johns. Ch. 123, 8 Am. Dec. 554. But a surety can require the creditor to proceed first against the principal only when his suretyship appears on the face of the instrument, or when he offers to indemnify the creditor in his proceedings against the principal, and to pay whatever the principal fails to pay: In re Babcock, 3 Story, 393, Fed. Cas.