Koboliska v. Swehla

Ladd, J. 1 The appellee insists that, by filing the amendment to the petition, the appellant waived the error, if any, of the court in sustaining the first demurrer. Doubtless a motion to strike the part of the amenment to which the second demurrer was interposed, if filed, would have been sustained, because it simply repeated the allegations of the petition already held -insufficient. The defendant, instead of availing himself of that remedy, however, filed another demurrer in substantially the same language, and from the ruling on this the appeal was taken. If there was any'waiver, the appellee, by not moving to strike, and in demurring a second time, waived the right to claim the amendment was a re-statement of the petition. 2 II. Attention is called to the fact that dates of payments and the rates of interest thereon are not stated in the petition. A motion for more specific statement, and not a demurrer, is the remedy in such a case. It is also suggested that the petition shows these parties to have been co-partners. This is based upon the fact that it appears from the copy of the deed, attached to the petition, that the land was conveyed to “Swehla & Koboliska.” The petition does not allege a partnership relation, and this will not be inferred, in a matter of pleading, from the mere fact that the names of the grantees are written in an exhibit attached thereto, as partnership titles usually are. The petition very clearly alleges that the plaintiff and defendant were tenants in common, in possession, and that the plaintiff paid the sum of six hundred dollars with interest, at the defend 127 ant’s request, to protect the interest of both in the land, and to remove a lien. 3 III. That the plaintiff was not entitled to be subrogated to the rights of the mortgagee, and have the' mortgage foreclosed, appears from Leach v. Hall, 95 Iowa, 619. In that case, however, the grantee of the heir who had discharged an incumbrance created by the ancestor was awarded contribution from the other heirs, and a lien therefor established on their interest' in the land. Though subrogation was alleged in the case at bar, and foreclosure of the mortgage asked, the petition also prayed that the defendant’s share of the incumbrance paid by the plaintiff be established as a lien on the former’s interest in the land. That the plaintiff was entitled to contribution cannot be doubted. Freeman Co-Tenancy, sections 322, 512; 2 Jones Mortgages, section 1314; Leach v. Hall, supra; Carter v. Penn, 99 Ill. 390; Rider v. Clark, 54 Iowa, 299; Oliver v. Montgomery, 39 Iowa, 604; Sears v. Sellew, 28 Iowa, 508; Fallon v. Chidester, 46 Iowa, 588. In Oliver v. Montgomery, 42 Iowa, 37, it was held that, where one tenant in common paid all the taxes, the share of a co-tenant for which judgment was entered should be made' a lien on his interest in the land. We discover no reason for adopting a different rule where an incumbrance in form of mortgage is satisfied. It is certainly quite as important, for the protection of the estate, that such a lien be discharged as that for taxes. We think that the plaintiff, under the allegations of his petition, was not only entitled to judgment for the defendant’s share of the mortgage paid by his co-tenant, but also to have this established as a lien on his interest in the land. This appears from Leach's Case, and, through subrogation or otherwise, is the relief usually granted. Newbold v. Smart, 67 Ala. 326; Titsworth v. Stout, 49 Ill. 78; Furman v. McMillian, 2 Lea. 121; 1 Jones Mortgages, section 878; 24 Am. & Eng. Enc. Law, 236. — Reversed.