Stenger v. Stenger

Headnote

The provision that plaintiff be exonerated from the lien of the mortgage by the executors of his deceased father, so far as his undivided half of the property is concerned, is undoubtedly correct; but if the property in the estate be not sufficient and it is necessary to have recourse against the defendants individually, according to the provisions of the judgment, then as the plaintiff has received the same share of the estate of his father and mother as has each of the brothers and sisters who are defendants, they should be compelled to exonerate the plaintiff only as to five-sixths of the claim, and not as to the whole thereof as provided by the judgment. Defendant Andrew Stenger has not asked for any relief in the complaint, and the provision supposed to be in his favor, from which, however, he has appealed, being paragraph 4 of the judgment, should be reversed. There is nothing in the findings of fact, or admitted by the pleadings, which justifies any judgment interfering in any way with the power of defendant Andrew Stenger to dispose of his property as he sees

fit, or to proceed with his action of partition. The judgment is modified accordingly, and as modified affirmed, without costs.