Ramsey v. Lewis

By the Court, T. R. Strong, J. The defendant, as co-surety with the plaintiff in the bond to the sheriff, had an equitable interest in the chattel mortgage of the 19 th of April, 1856, so [415] far as it was security to the plaintiff as such surety; and to the extent the defendant has been injured by the relinquishment by the plaintiff of that security without his assent—■ knowing as the plaintiff did at the time that the defendant was co-surety with him—aside from any question of pleading, it is a defense to the plaintiff's claim against him for contribution. [Monroe General Term, December 5, 1859. The equitable interest of the defendant in the mortgage, I think, only entitled him to have the proceeds of the mortgaged property, on a sale, applied ratably to all the debts and liabilities provided for, as well those to accrue as those then existing, The mortgage expressed that future liabilities were to be incurred by the plaintiff, and was in terms to he security for them; and no legal reason is perceived for a distinction between them and existing liabilities, as to the disposition of the avails of the property. (Truscott v. King, 2 Selden, 147.) This view, as to the legal rule for the application of the proceeds of the property, will not affect the result of this case, as I am satisfied from the evidence that the property mortgaged was ample to pay all the debts and liabilities intended to he secured, including the future liabilities. I think the answer sufficient to allow of the defense. The mortgage is set forth, and a claim to the benefit of it, in respect to the liability on the bond, asserted. Proof was given of the mortgage by the defendant, when the plaintiff showed he had canceled it. The defendant could not therefore have what he claimed, in terms, hut he might have the same thing in substance, by this defense. Mo surprise can he pretended; there is no substantial difference between the relief sought and that obtained. I think the judgment should he affirmed. Judgment affirmed. T. S, Strong, Welles and Johnson, Justices.]