Cook v. Hinsdale , 58 Mass. 134 ( 1849 )

Shaw, C. J.

Two tracts of land, held by Daniel S. Workman and Sidney S. Workman, as tenants in common, were mortgaged to the Massachusetts Hospital Life Insurance Company to secure the payment of the separate note of Daniel S. Workman. All the estate of Sidney subsequently came to the defendant, Hinsdale, subject, of course, to this mortgage, and to some other incumbrances not mentioned. Daniel S. Workman having become insolvent, all his interest in the two parcels of land were conveyed to one Gilbert Green, who paid the interest on the note at least one year. Green and Hinsdale made partition of the lots to hold, in severalty. Both parcels were of course subject to the mortgage above named to the insurance company, but for the same debt, and prima facie the separate debt of Daniel S Workman.

Cook, the demandant, having become the assignee of this mortgage, brought two actions to foreclose, one against Green for the parcel which was held by him, and the other against Hinsdale for the parcel held by him. Whilst the suits were in court, Green paid the whole amount of the mortgage, and had the suit against him discharged. The other, which is the present suit, is now, by the consent of the nominal plaintiff, prosecuted for the benefit of Green, to enable him, for his own use, to charge the parcel of land held by the tenant for one half of the mortgage debt, which he has paid to the nominal plaintiff.

This claim on the part of Green is purely equitable, in the nature of an equitable assignment; and if he cannot maintain it on this ground, he cannot maintain it at all. K the payment made by Green was strictly speaking a “ payment ” of the whole mortgage, it would be a bar to both actions, both being brought to recover payment of one and the same debt. But supposing it intended to be a payment of one half, and a purchase of the plaintiff’s right to the other half, the court are of opinion that Green has no equity. He took Daniel S. Workman’s right only, and that right was to redeem the estate upon the full payment of Daniel S. Workman’s debt. Sidney S. Workman’s estate, which came to the defendant, was liable for it in law, but it was in the nature of a suretyship. If the suit had been brought against Green alone, to charge the whole mortgage debt on the estate held by him, we think he would have had no claim for contribution from the tenant in this case. In paying the whole mortgage, he in effect paid the debt for which his estate was primarily bound, to the exemption of the estate of the tenant; and he was in effect paying his own debt; he had no right in equity therefore to prosecute this suit for his own benefit in the name of the nominal plaintiff. Allen v. Clark, 17 Pick. 47; Brown v. Worcester Bank, 8 Met. 47. When Green paid into court the amount of the mortgage, the demandant was not bound to take it and discharge his action, without a tender of the costs in both actions, both suits being rightfully brought, and pending for one and the same debt. Whipple v. Newton, 17 Pick. 168.

Judgment for the defendant.