Sawyer v. Lyon — 10 Johns. 32

Majority

p. 32

Sawyer against Lyon.

ALBANY,

Jan. 1813.

Headnote

Where two Chase"8 sepaoftBa iotl<of8 l^mortglged" and one of ivavds, 3pays share 'of" the mortgage mo-portion to the owned by° cáu’ontiie1^ ther for eontribution of his aliquot partTof'' it" as paid -b'but not for any part him "ess than tion, ^though ttoid°nothing8

THIS was an action of assumpsit. The declaration contained the common money counts. The defendant gave a cognovit actionem, subject to the opinion of the court, on the following case:

^ I°t °f land, containing 160 acres, was mortgaged by Pease, the owner, to the people of the state, on the 3d of October, 1797, for securing the payment of 561 dollars and 81 cents.' Subsequent to the mortgage the plaintiff purchased of Pease 60 acres, pai¡|. 0f the lot; and the defendant also purchased of Pease 53 acres, part of the same lot. The defendant, at 'the time of the purchase, gave Pease a bond to indemnify him against the payment of a portion of the mortgage money, equal to the part of the \0t purchased by the defendant, 1

The plaintiff, at different times* paid 168 dollars and 20 cents on the mortgage, and the defendant paid 23 dollars, which pay-ments were applied to the whole Iot mortgaged. The payments by the plaintiff were voluntary, and without any request on the part of the defendant, or promise by him to refund his proportion^

The present suit was brought to recover of the defendant his ProPortional part of the amount so paid by the plaintiff. It was agreed, that if the court should be of opinion that the plaintiff was not entitled to recover, a judgment of nonsuit should be en

p. 33

rered; otherwse, a judgment was to be entered for the plaintiff, on the cognovit.

It does not appear from the case, that the plain. tiff has even paid his proportional share of the debt, cbarged upon the lot; and, therefore, he has not shown a right to recover from the defendant any proportional part of the money he has paid. Had the plaintiff paid more than his just proportion, he would then, no doubt, have been entitled to have called upon the defendant for contribution of his aliquot share, or such part of it as had been paid; and this, upon a clear principle of equity, which is Sully illustrated in the books, and was well known, and quite familiar, as Lord Coke admits, to the judges and sages of the common law. (Sir William Herbert's Case, 3 Co. 11. b. Fitz. N. B. tit. Writ of Contribution. Bro. Ab. tit. Suite and Contribution, pl. 18. and tit. Contribution, A. pl. 1. Deering v. Earl of Winchelsea, 2 Bos. & Pull. 270.) Upon this case, as it stands, the defendant is entitled to judgment; but, according to the stipulation in the case, judgment of nonsuit is to be entered.

Judgment of nonsuit.