McDowell v. Jacobs
Before: Baldwin
Synopsis
Where thirteen persons made a joint and several promissory note, payable to three of their number, and all joined in the execution of a mortgage to secure the payment of the note, (the plaintiffs being both payors and payees in the note, mortgagors and mortgagees in the mortgage,) and, subsequently, the payees of the note brought suit against the other makers, and for a foreclosure of the mortgage : Held, thac the suit was properly brought) and plaintiffs were entitled to a judgment of foreclosure.
The note and mortgage executed by the whole of the associates.in this joint enterprise, to three of them, is equivalent to a note and mortgage executed by the defendants to the plaintiffs for an amount less by the proportion of the number of the plaintiffs to the defendants—that is, to three-thirteenths of the sum—and may be enforced in like manner as if so executed.
Baldwin, J. delivered the opinion of the Court Terry, C. J.,
We think the points taken by the appellants in this case can not be maintained. The note and mortgage executed by the whole of the associates in this joint enterprise, to three of them, the plaintiffs below, is equivalent, we think, to a note and mortgage executed by the defendants to the plaintiffs, for an amount less by the proportion of the number of plaintiffs to the defendants—that is, to three-thirteenths of the sum therein mentioned —and may be enforced in equity in like manner as if so executed. If any of the defendants prove insolvent, a.right of contribution may be enforced by the defendants paying more than their share of the common debt, in the usual form, against the plaintiffs, for their proportion of the amount so due. As the case stands now, the plaintiffs have deducted—which is equivalent to paying—their proportion of the common debt, leaving the defendants to pay their proportion. There is no allegation of the insolvency of any of the defendants, and we have no reason to presume that they are not able to pay the balance that may remain after applying the proceeds of the mortgage. If we were to adopt the suggestion of the counsel for appellants, and direct [390]a several decree for the amounts due from the defendants, on the hypothesis that each was only liable for his respective share of the debt, the consequence would he that if some were unable to pay, the proportions would have again to be adjusted, and the whole matter would be thrown into confusion.
We have arrived at this result with some hesitation, and certainly the question is not free from difficulty; but we think, on the whole, that this is the most satisfactory mode of settling this controversy.
ETo account is necessary. This debt seems, from the record, to he the only matter between these parties, and we can not go out of the case to imagine other transactions, which would render the statement of an account necessary.
Decree affirmed.
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