Lang v. Cadwell

Harwood, J. It very clearly appears in this case that there is no support for the judgment for recovery of attorney fees in favor of Lang. Such recovery would be allowed if supported by contract or statute. (Bank of Commerce v. Fuqua, 11 Mont. 285; 28 Am. St. Rep. 461; Wortman v. Kleinschmidt, 12 Mont. 316.) But there is no statute or contract shown whereby the cotenant of Lang is obligated to pay attorney fees in an action brought by him to enforce contribution [463] of a portion of the mortgage debt on said land. If Lang had been compelled to pay an attorney fee to relieve said land from a portion of the encumbrance left thereon by the delinquency of his cotenant, he would be entitled to recover such attorney fees in this action for contribution, because the attorney fee would then have become part of the encumbrance which Lang was compelled to pay to relieve the land therefrom; but it appears that Lang only paid the amount of the encumbrance, without attorney fees. It does not follow, because Lang and McIntyre agreed to pay to Browning attorney fees in the event she was obliged to enforce payment of the mortgage debt by suit, that thereby either of the cotenants agreed to pay the other reasonable attorney fees for prosecuting an action to subject his cotenant’s interest in said land to its proportion of the amount required to relieve the common property from the mortgage lien. Therefore, the provision of the judgment for recovery of counsel fees in favor of Lang is unwarranted, and must be struck out. Nor was there any showing of facts to warrant personal judgment against either Laura M. or E. P. Cadwell. The conveyance of said land to Laura M. Cadwell provides simply that said land is conveyed to her subject to said mortgage. This does not support the proposition that either she or her husband personally assumed and agreed to pay one-half of the mortgage debt resting upon said land. (Pendleton v. Cowling, 11 Mont. 38.) And no other facts appear to support the allegation that defendants Cadwell, or either of them, assumed or agreed to pay said debt. Therefore, the provision of the judgment for personal recovery from defendants Cadwell must be eliminated therefrom. The further exceptions urged by appellants relate to the theory on which this action was instituted and prosecuted; appellants contending that payment of the whole mortgage debt to Browning by Lang extinguished the entire debt, and therefore that Lang, one of the mortgagors, could not recover, as assignee of said mortgage and notes, one-half of the sum he paid to relieve the land from the mortgage lien. We see no reason for dwelling upon these peculiarities of the case. There is scarcely any foundation for appellants’ objection in this re [464] spect, even in theory. (3 Pomeroy’s Equity Jurisprudence, 1221 et seq.) However, a judgment does not depend for support on a theory, but 'upon law and facts; and in this case the.law and facts support the judgment in favor of Lang, to the extent of subjecting his eotenant’s interest to its rightful proportion of the common burden which the cotenants had jointly placed upon said property, and which Lang was, of course, obliged to pay in full in order to relieve his half interest therefrom. “Where one tenant in common pays off a lien upon the joint property, he becomes entitled to contribution from his cotenants to the extent of their respective interests; and a court of equity will, in order to secure such contribution, enforce upon the interests of all an equitable lien of the same character as that which has been removed.” (2 Beach’s Equity Jurisprudence, § 885.) The introduction of said mortgage and notes in evidence, with the assignment thereof to respondent, Lang, was proper, as evidence of his payment to Browning of the debt which constituted a lien on the common property, and which supported his action to subject his cotentant’s interest to one-half the common burden. It does not appear that appellants sought any modification of the judgment below, or offered to reimburse the amount paid by Lang to relieve their interest in said property from the mortgage lien, or allow said interest to be subjected to the satisfaction thereof. If appellants had so proceeded, and had then been obliged to appeal to gain a modification of the judgment, we would order costs of appeal taxed to respondent. But the proceedings show that appellants have, by their defense, sought to defeat all relief in favor of respondent, both in the court below and on appeal. Therefore, costs of appeal will not be allowed to appellants. (Quigley v. Birdseye, 11 Mont. 439.) The judgment will therefore be modified by eliminating therefrom the provisions for recovery of counsel fees, and the provision for recovery against defendants Cad-well personally; and with such modification the judgment is affirmed, with costs of appeal taxed against appellants. Pemberton, C. J., and De Witt, J., concur.