Frost v. Bevins. the jurisdiction in the Kentucky Circuit, relative to lands in Ohio, on the ground of a constructive fraud; Chief Justice Marshall lays down the principle, that in a case of fraud, of trust, or of contract, the jurisdiction of a court of chancery is sustainable, wherever the person be found, although lands not within the jurisdiction of that court may be affected by the decree. The Chancellor recognizes this principle in Mead v. Merritt, (2 Paige, 402,) and Mitchell v. Bunch, (2 ibid. 606;) and it is conclusive in favor of the jurisdiction of the court, upon the case made by the bill. The defendant's objection is therefore overruled, and the cause must be heard on its merits. Order accordingly.(a) FROST V. FROST and BEVINS.(b) Where tenants in common unite in executing a joint mortgage, for a joint and several debt, one of them has no equity to compel the mortgagee to receive half the debt, and to proceed against his co-tenant's moiety for the collection of the other half, although he tender a sufficient bond of indemnity against eventual loss. Nor on a foreclosure against both mortgagors, will a decree be made for a sale of the undivided moieties separately, for the respective half parts of the debt. The doctrine of principal and surety is not applicable, and the creditor is entitled to receive his whole debt, or to have the usual 'decree for a sale of the whole premises. Albany, January 12th, 1846. THIS was a suit to foreclose a mortgage, executed by James Frost Jr. and John L. Bevins, on two small lots of ground at Spraker's Basin, in the county of Montgomery. The mortgagors (a) The suit was brought to a hearing before the Assistant Vice-Chancellor, on the merits, in June, 1846; and on the 24th of July, he dismissed the bill with costs. The hearing occupied five days, but there was no legal question involved, of sufficient interest to be reported. (b) This cause, and several others in this volume, were heard at a special term held at the capitol in the city of Albany, on the 12th day of January, 1846. Frost v. Bevins. owned the premises as tenants in common. On one of the lots a large stone building was erected, sufficiently capacious for two stores, and which by means of a partition had been so occupied. The complainant held a subsequent mortgage given by J. Frost Jr., on his undivided half part, including another house and lot. Before the suit, Bevins offered to pay to the complainant one half of the sum due on the first mortgage, requiring him to foreclose Frost's undivided share of the premises for the collection of the other half, and offering an indemnity against loss. The complainant refused to accept payment of a part of his debt. The cause was heard on the pleadings and proofs as to Bevins who answered, insisting on these facts. J. C. Wright, for the complainant. The only real question is as to selling these premises in parcels; whether one of two mortgagors has a right to insist on a foreclosure against the other, on the former paying to the mortgagee one-half of the amount due. We contend he has no such right; especially where the property mortgaged is indivisible. In a partition, this store would have to be sold entire. A sale in undivided moieties will lessen the amount which should be realized from it, and we as junior mortgagees of one half, have an equity to prevent such a loss. No case can be found for selling indivisible property in halves, or selling undivided half parts on a mortgage of the whole. We were not bound to receive a bond of indemnity as to half the debt, and be turned over to a suit at law on personal security in case of a deficiency. The complainant has nothing to do with the equities between the mortgagors, both of whom are liable to him jointly and severally, and each for the whole. There is no suretyship as to him, or for him; nor is there any between the mortgagors until one of them pays the debt. R. W. Peckham, for the defendant, Bevins. Each of these parties in respect of the other, is a surety for half Frost v. Bevins. the debt. It is not material whether the store can be sold in parcels. What is the objection to selling equal undivided moieties, under the decree? If we pay half of the debt, who is bound to pay the other half? v. Henry, 10 Paige, 314.) Equity requires each to pay half. (Henry A decree may be made between co-defendants, and here there is a prima facie equity for such a decree. (Jones v. Grant, 10 Paige, 348.) The complainant's object in having the whole sold, is not to collect his debt, but to buy the property for less than its value. He wants to sell our half to make Frost's half better. His second mortgage has no bearing on the case. There is no marshalling of assets here. (4 J. C. R. 17; 1 ibid. 415.) THE ASSISTANT VICE-CHANCELLOR, said there can be no sale in divided parcels here. One of the mortgagors has no more right in the east half or the west half of the store, than the other. The complainant as second mortgagee, has no particular equity. He stands in the place of J. Frost Jr. as to Bevins' right, in respect of that mortgage, and cannot force on a sale of B.'s half of the property to pay his first mortgage. On the other hand, both of these parties are principal debtors, each liable to the complainant for the whole debt secured by the joint mortgage, and he has a right to compel either of them to pay the whole. So the doctrine of surety is not applicable. They joined in mortgaging the premises, and probably by that act, intended to have a sale of the whole, if any sale ever became necessary. This is the more probable, because the legal presumption as well as the proof is, that the property will not sell as well in undivided moieties as the whole would together. If they had intended a different result, they should have given separate mortgages. A mortgagor under the circumstances here disclosed, is entitled to receive his entire money, or to have a sale of the whole premises. He cannot be driven to sell an undivided half part, for the payment of half of his debt. In regard to a decree for Bevins against his co-defendant, the latter is not represented here. He was called upon to answer the bill, and has had no opportunity to answer the claim of Bevins. There must be the usual decree for a sale of the mortgaged New v. Bame. premises, and Bevins must pay the additional costs incurred by the complainant in consequence of his putting in an answer. Decree accordingly. NEW v. BAME. An answer stated the execution and delivery of an assignment in trust for creditors, and referring to the instrument, averred that a copy of it was set forth in a schedule annexed, to which the defendant referred as a part of his answer. The answer then stated the recording of the instrument on the day of its date, and mentioned the book in which it was recorded. The schedule contained the assignment at length, acknowledged before a commissioner of deeds. Held, that the deed might be read at the hearing, under these allegations. THIS was a judgment creditor's suit, which was heard on the pleadings and proofs. The answer, among other things, stated that on, &c., the defendant executed and delivered to W. A. D., an assignment of all his real and personal property, except such as by law was exempt from execution, in trust for the payment of his debts ratably, &c.; "as by reference to the said assignment will more fully and at large appear, a copy whereof is hereunto annexed, marked A., and to which this defendant begs leave to refer; and that the same may be accepted and taken as a part of his answer; and which said assignment was accepted by the said W. A. D., and on the day of its date, was recorded in the office of the clerk of the county of Columbia, in book F. F. of deeds; as by the certificate of the clerk thereon indorsed, will also appear." The complainant objected to the reading of this deed in evidence, under the statement in the answer. The other matters involved, were of no general interest. J. C. Newkirk, for the complainant. K. Miller, for the defendant. King v. McVickar. THE ASSISTANT VICE-CHANCELLOR, decided that the assignment was so far set out, or distinctly referred to, in the answer, as to enable the defendant to read it at the hearing, under the seventy-fifth rule of the court. That the answer and schedule together, stated it as a deed duly acknowledged and recorded. A decree was made for the complainant. KING and others v. McVICKAR, J. L. LAWRENCE, administrator, &c., and others. J. L. LAWRENCE, administrator, &c., v. KING and others. A mortgagor, and one to whom he had subsequently conveyed part of the lots mortgaged, subject to a portion of the debt, applied to a banker to advance money to satisfy the mortgagee. The banker made the advance, on such grantee of part of the lots, agreeing to take an assignment of the mortgage for his benefit and security, as against the lots remaining in the mortgagor; half the sum requisite to satisfy the mortgagee, being furnished at the time, ostensibly by the grantee. Payment was made to the mortgagee, who assigned the mortgage to the grantee; and he soon after cancelled it of record, without the assent or knowledge of the banker. Held, that the transfer for the benefit of the latter was valid, and the subsequent discharge of the same was void, and that he could re-instate the mortgage, and foreclose it against the lots still owned by the mortgagor, and against a second mortgagee of the same, whose lien was prior to the cancelment, but subsequent to the first mentioned mortgage. After the first mortgage was cancelled, the banker to secure his advance, obtained from the grantee who cancelled it, a mortgage on other lands of some value; and subsequently the grantee gave to him another mortgage on those lands, to secure debts due to the banker as trustee. After this he conveyed the lands to the banker in fee, in trust for several persons. It appeared that as between the original mortgagor and such grantee, the latter was liable in respect of his lots formerly subject to the mortgage, to pay a part of such advance. Held, that on the banker's re-instating and enforcing the original mortgage, the second mortgagee stood in the place of a surety for such grantee to the extent of his liability to make good the advance, and was entitled to that extent, to the benefit of the subsequent security taken for the advance, by the banker, from the grantee. Held also, that such equity of the second mortgagee, could not be enforced against the beneficiaries under the conveyance to the banker in trust, until they were made parties to the suit. |