Schoenewald v. Dieden

Wilson, J. This case was argued and submitted during the last Harch term of the court, and judgment was rendered affirming the decree of the court below. Subsequently a petition for a re-hearing was filed by appellant, which was allowed, and the case has been again submitted upon printed arguments. A careful consideration of the case has brought- us to the same conclusion reached by us at the former hearing. It is alleged by appellant that at the time of the purchase of the property in question, there was an understanding and agree* rnent between Dieden and Schoenewald, Ennis and Heiland, that the latter were each to become the owners of an undivided one-third interest in the land, and that appellant was to be liable for the payment of one third only of the amount of the notes given for the purchase-money, and that his interest in the property was to be chargeable only for his one-third liability. Upon this allegation of fact testimony was heard on both sides, and the court below found that the allegation was not sustained by the proof. We cannot say that the finding is against the preponderance of the evidence. The notes secured by the mortgage were the unconditional joint and several undertakings of the three makers, while the mortgage by its express terms covers the entire .undivided interest of the mortgagors who made the notes. These instruments are presumed to express the real agreement of the parties, and, conceding it to be competent to show that the agreement was otherwise than as expressed in the instruments themselves, the court below, who saw and heard the witnesses, is quite as well qualified to judge as to the weight of the evidence upon which it based its findings, as is an appellate tribunal, looking only upon the record. The burden of proving the alleged agreement rested upon appellant. The question of fact was submitted to and passed upon by the court adversely to appellant. Treating, as we must, the alleged agreement as not proven, appellant’s case is left to stand or fall upon the proposition that one of three makers of a joint and several obligation for the payment of money, secured by their joint mortgage upon land owned by them as tenants in common, may, upon payment by him of one-third of the amount due, compel the mortgagee when he files his bill to foreclose, to first resort to the undivided two-thirds interest of his co-mortgagors to satisfy the unpaid balance-due, before attempting to subject the entire estate covered by the mortgage, to such payment. It will be noticed that the prayer of the cross-bill goes further than this, and asks that the land be partitioned; that Schoenewald’s one-third interest be set off to him in severalty, and that upon the payment by him of the balance of his one-tliird part of the notes, his divided one-third of the lands may be wholly freed and discharged from the lien of the mortgage. We are aware of no rule of law'nor of any adjudicated case upon which either proposition can be maintained. ¡Neither the rule in relation to selling in the inverse order of alienation, nor the doctrine in relation to. principal and surety, has any application to the facts of the present case. ¡No sale was made of a portion of the premises, or of any interest therein, subsequently to the making of the mortgage, except the alleged conveyance by Ennis of his one-third interest to Heiland; but that was a sale to a co-mortgagor, nor is Heiland here making any complaint. But the defendants were joint and several promisors. They were all equally principals. Each was primarily liable to pay the entire sum, and appellee was entitled to receive his whole debt from either. And so when they united as tenants in common in the execution of a joint mortgage for their joint debt, neither one of them had any equity as against the mortgagee to compel him to receive one-third of the debt, and to proceed against the other co-tenant’s interest in the land for the collection of the balance. And this has been held to he the rule, even though a bond of indemnity against ultimate loss be tendered to the mortgagee: Frost v. Bevins, 3 Sanf. 188. The true rule in such cases is to require payment of all or either of the mortgagors, according to their undertakings, and if, as between themselves, either is compelled to pay more than his equitable share, he may be subrogated to the rights of the mortgagee to enforce contribution from his co-obligors. These views are fully sustained by the text in Jones on Mortgages, § 1617, citing Frost v. Bevins, supra. In that case the assistant vice-chancellor says: “Both of these parties are principal debtors, each liable to the complainant for the whole debt secured by the joint mortgage, and he has a right to compel either of them to pay the whole debt. The doctrine of surety is not applicable. They joined in mortgaging the premises, and probably intended by that act to have a sale of the whole, if any sale became necessary. * * If they had intended a different result, they should have given separate mortgages. A mortgagee cannot be driven ,to sell an undivided half part for the payment of half his debt.” This case is decisive of the present, and we know of no case holding a contrary doctrine. We are therefore of the opinion that the action of the court s below in dismissing appellant’s cross-bill was right, and that the relief decreed was proper. Decree affirmed.