Evarts v. Woods , 25 N.Y. St. Rep. 498 ( 1889 )

Barnard, P. J.

The plaintiff, as between him and his deceased mother, ought to pay the mortgage held by the defendant Jenks. The mortgage was given to obtain a loan for the plaintiff, and upon his agreement with his mother “that he would pay the principal of the said mortgage, and the interest thereon.” The plaintiff has now applied to partition or sell the land covered by the mortgage, and to divide the proceeds between his brother and sisters. The plaintiff should pay his debt in this action so far as his share in the land will do so. This is'equity and justice, and there must be some controlling reason for an equal division of the proceeds, and thus to make all the heirs pay the plaintiff’s debt. The only one assigned is that no individual brother or sister can assert a claim that plaintiff should pay his own debt. It is true that none of them can bring an action against the plaintiff to enforce the payment of tills mortgage by plaintiff as he agreed to do. This is no reason why a court of equity should decree a sale of land at the plaintiff’s instance, and divide the moneys unjustly. The plaintiff, to obtain equity, must do equity. The probability that the administrator of his mother may sue the plaintiff to recover this sum to pay debts ought not to be considered. He makes the probability by his default, and the property of his brother and sisters should.not be applied to pay his debt because he has failed to pay it himself. The judgment, also, should be paid out of the plaintiff’s share. The plaintiff’s neglect was the basis of the j udgment. The plaintiff unskillf ully made an excavation in building a factory in August, 1882. The title to the lot then stood in the name of plaintiff’s mother. In October, 1882, the plaintiff took the title in his own name from her. If Mrs. Evarts merely held the title for the plaintiff, the plaintiff ought to pay the judgment as between him and.his mother. If she is to be deemed the owner, a judgment against her for her son’s negligence creates a good ground of recovery by her against the plaintiff. Village of Port Jervis v. Bank, 96 N. Y. 550; City of Rochester v. Montgomery, 72 N. Y. 67. The judgment should therefore be reversed, and a new trial granted at spring term, with costs to abide event. All concur.