The complaint is in the nature of a bill quia timet, for the general principles of which see 2 Story on Eq. Juris., Chap. 21, " Bills Quia Timet," and in regard to the present bill, see more particularly Sec. 849 of the same Chap., p. 186; also Sec. 327, vol. 1, p. 353. " Sureties are entitled to come into a Court of Equity after a debt has become due, to compel the debtor to exonerate them from their liability." (See also Sec. 730.)
The plaintiff here stands in the light of a surety of the defendants. They have agreed to pay the debt, and have charged the land with the payment. The debt is due. The security is depreciating. The liability is increasing by the accumulation of interest. The defendants are the principal debtors. If they pay the debt it is absolutely discharged, and there is an end of it. The plaintiff is a surety. If the defendants pay the debt, his liability is at an end. If he pays the debt, he has recourse over against them. He is, as far as they are concerned, a mere surety. (1 Hillman on Mortgages, 236; see, also, Heyer v. Pruyn, 7 Paige Ch. 465; Tice v. Annin, 2 Johns. Ch. 128; Bigelow v. Bush, 6 Paige Ch. 343; Bank of U.S. v. Stewart, 4 Dana, 28; Eddy v. Traver, 6 Paige, 521; Cox v. Wheeler, 7 Paige, 248.)
The defendants objected further that the plaintiff was not entitled to a decree for the sale of the whole premises, but only for an undivided moiety.
In regard to this point, we present three propositions in support of our claim of a lien upon the whole property:
1. That Abell, Stevens, Dennison and Coons, as parties to said deeds, and the other defendants, as parties claiming through them, are estopped by the recital in the deeds to deny that the mortgage is a lien upon the entire premises and cannot be heard in Court to assert in contradiction of said recital that the mortgage was a lien only upon the moiety.
2. That however the fact might have been originally, the said recital amounts to a covenant on the part of the said Dennison and Coons, that the said mortgage should thereafter be a lien upon the entire property.
3. That the said mortgage debt was assumed by said Dennison and Coons as a part of the purchase-money of the said estate, which thereby became an equitable lienupon the estate, of which the notice contained in the deed charges all parties claiming by, through, or under them. (Beals, Adm'r., v. Schwales, Ex'r., Marsh. Ky. R. 475; Bank of Kentucky v. Vance, Adm'r., 4 Litt. 172; Colyer v. Jackson, 3 Mon. 23; 4 Cowen & Hill's Notes to Phil. on Ev. 455.)
As to what is sufficient notice, see 1 Story on Eq. 399 to 400, and Johnson v. McCall, 10 Johns. 376.
JUDGES: Murray, C. J., after stating the facts, delivered the opinion of the Court. Terry, J., concurring.
OPINION
MURRAY, Judge
As to the remedy we are satisfied that the case is one of chancery jurisdiction, and it is not necessary for Abell to first pay the amount of the mortgage to Humphreys, before he can bring his action against Coons and Dennison; in fact, he might be unable to do so, and although primarily liable to Humphreys, still, in this transaction, he is, in fact, a security for Coons and Dennison, as it is evident that he will only be liable to Humphreys in the event of non-payment by them, or the failure of the premises to bring the amount of the mortgage debt.
The first question which naturally suggests itself, is as to the character of the clause in the deeds above quoted. It is to be observed that the mortgage by Abell (he and Stevens holding as joint-tenants), only extended to the undivided one half of the premises. It is now contended that this clause extended the mortgage to the whole premises, and that all the lands became charged, and if such is not the legal effect that it amounts to an undertaking upon the part of the grantees to assume the debt of eight thousand dollars, as a portion of the purchase-money, and that the vendors have a lien on the whole premises, for the amount unpaid.
The words of the deed " assume the payment of the mortgage now existing on the premises," can by no just rule be said to extend the terms, but rather to define and limit the extent of the mortgage. What was the mortgage, then, existing on the premises? It was a mortgage of the undivided one half interest of Abell, and this they assumed.
Let us next inquire, whether the covenant can be considered as raising a vendor's lien. It will be borne in mind that both deeds, that of two thirds to Coons, and the remaining one third to Dennison, contain this provision. Now, can it reasonably be supposed that Dennison, who purchased on the same day with Coons, a one third interest, for which he paid eight thousand dollars, undertook to pay the further sum of eight thousand dollars when the remaining two thirds were sold for sixteen thousand dollars, with the contingent charge of eight thousand more. This would make Dennison's interest, in the event he had to pay the mortgage, cost sixteen thousand dollars; while Coons' two thirds could not cost in any event more than twenty-four thousand dollars, making a difference, as against Dennison, in the price of one third of the land, of four thousand dollars.
The fact that this provision was inserted in both deeds, and that it would work unequally and unjustly in the two cases, if the construction contended for was maintained, is a strong circumstance tending to raise the presumption that the clause was simply designed as a recognition of the mortgage, and not as an individual assumption by each vendee. In this connection it might be asked, if it were an undertaking to pay the eight thousand dollars as part of the purchase-money, whether Coons or Dennison was primarily liable, or could both be compelled to pay the mortgage?
From the foregoing conclusions, we are of opinion that the mortgage from Abell to Humphreys is a charge only upon an undivided half interest of said premises, and the Court below is ordered to modify its decree in conformity with this opinion.