Stroud v. Casey

The opinion of the court was delivered by Lewis, C. J. Edward Waggoner and John R. Casey, being severally in possession of two houses and lots of about equal value, executed a joint mortgage on the two lots, to secure a debt to the corporation of St. Martin’s Church. The mortgage is not set forth at length in the paper-book, nor are we furnished with the bond secured by the mortgage. The possession of the property by the mortgagors at the execution of the mortgage, and the act of joining in that instrument, justify the inference that they were equal owners of the mortgaged premises. The subsequent con [473] veyance by Waggoner to Casey, for tbe consideration of one dollar, of the premises occupied by the latter before, seems to be nothing more than the conveyance of the mere legal title, in acr cordance with the pre-existing equitable right. There is nothing on this record to support the allegation that Casey was only surety for Waggoner. On the contrary, the presumption, as the evidence stands on the record, is that the mortgage was given to secure a joint debt of the mortgagors. By the sheriff’s sale on a judgment against Waggoner, entered after the mortgage, Stroud became entitled to Waggoner’s interest, subject to the lien of the mortgage. He was, therefore, no volunteer in paying off the mortgage. He was compelled to do so, to save his property from sale. Under these circumstances, Stroud was entitled to recover one-half of the money so paid, with interest from the time of the payment. The court fell into error in denying him this measure of justice. Judgment reversed and venire facias de novo awarded.