The contract of sal© made with Mrs. Boyd was an obligation bn the tenants in common, each to convey her individual share or interest in the land at the time appointed for payment of the purchase money; and the testatrix of the plaintiff and the defendant having both signed by agent a written memorandum of the contract, they were jointly bound- for title to the vendee, one as much as the other, but inter se,. each was bound as a principal to *341convey ber own undivided share, and each was secondarily-bound -asa surety for the performance of the other.
Mrs. Daves, as it appears from the case agreed, executed a deed -to the purchaser conveying her four-ninths of the land, and the same was accepted ,as a performance of the contract to that extent. By force -of this fact she was not then further bound than simply as a surety for the execution of title for the five-ninths of Jane P. Haywood by her ■during her lifetime, and by her heirs and devisees since her death.
In such .situation of the parties in respect to each other no promise could be raised or implied by the law against Mrs. Daves to pay anything towards any costs and charges incurred by the heirs and devisees of Mrs. Haywood, or any of them, in specifically executing the contract of their ancestor, whether incurred through a suit in court or otherwise; for in that case.the expenditure obviously would be-on their own -behalf -and operate' to exonerate Mrs. Daves from her .suretyship as she had a right to demand.
2. Having seen, as -above, that no recovery can be had, if Mrs. Daves be taken to occupy the relation of a surety to Mrs. Haywood in respect to the conveyance of her title, we will next inquire if the plaintiff can make a good cause of action under the doctrine of contribution.
This doctrine of the. right to contribution rests on the idea of equality of burdens and benefits, and in order-to establish such liability, -it is necessary that the plaintiff show that the estate of her testatrix has borne singly a burden common to it and to Mrs. Daves; in other words, it must appear that the suit in New York, and the payments therein decreed made by the -estate of Mrs. Haywood, removed an impediment to a complete title common to both sisters. Adams’ Eq., 267 ; Freeman on Co-Tenancy, § 322.
According to the case agreed, the sisters were seized of several freehold estates undivided in the land contracted to *342fee conveyed, and Mrs. Daves having by satisfactory deed conveyed her four-ninths, the only impediment to the execution of a perfect title consisted in the incapacity of certain infant devisees, under Mrs. Haywood’s will, to join with the adult heirs and devisees in a deed to Mrs. Boyd. This impediment grew out of an omission of the testatrix, after making a contract of sale to Mrs. Boyd, to revoke the devise to the infants, and in such case the burden of all the costs and deductions authorized by the decree of court in New York ought to fall on the estate-of her through whose omission the necessity arose and whose duty it was to convey her interest.
It may be as was argued in this court that the decree pronounced in the New York court in a cause constituted against the infants, Allen Rogers, Sion H. Rogers and Minnie Rogers, without the joinder of a personal representative of Mrs. Haywood, was erroneous, if not irregular; and that the same might be reviewed and reversed, or modified. But if so, it being a decree concerning the execution in specie of Mrs. Haywood’s contract with Mrs Boyd, it is the business, of the plaintiff or some other in the interest of the estate to look after that matter, and no concern of Mrs. Daves.
In our opinion the plaintiff is not entitled to recover a proportionate part of the several sums mentioned in the case agreed, or either of them against the defendant.
There is error. The judgment of the court below is reversed, and it is adjudged in this court that the plaintiff take nothing, and that defendant have judgment for her costs in this behalf expended.
Error. Reversed.