The principal question presented by the facts above stated, is whether the agreement which is the foundation of this action is valid.
The general term of the superior court, in the opinion given on the reversal of the judgment, placed its decision on the ground that it is void; first, because it is against public pol*449icy; and, second, because it is in the nature of a wager, and prohibited by statute.
We cannot concur in this conclusion.
It is fairly inferable, in the absence of proof or even a suggestion to the contrary, that Judge Bonney, at the time of the execution of the mortgage given by him, owned the whole of the property mortgaged, and that when Mr. Coit executed the mortgage in question he had become the owner of the portion thereof covered by it, leaving the title to the residue still in Judge Bonney. That, under settled principles of equity, would have given the plaintiff the equitable right, as admitted by the court below, and as established by the case of Rathbone v. Clark, 9 Paige, 648, to have such residue sold first. See also 2 Story Eq. Jur. 3 ed. § 1233, a.
So too, if the whole of the property had become vested in Mr. Coit, and he had assumed the payment of the first mortgage, the plaintiff would also have had an equitable claim to the interposition of the court, so far as to have compelled Mr. Eoe to have exhausted his remedy against the property not covered by the plaintiff’s mortgage before recourse was had to that which was covered, upon the general principle of equity, that if a claimant has two funds to which he may resort, a person having an interest in one only has a right to compel the former to resort to the other, if that becomes necessary to satisfy both. Willard Eq. Jur. 337, 561, 562; Schryver v. Teller, 9 Paige, 173.
A judgment in accordance with those principles would have been equitable and proper, for the protection of the right of the plaintiff, the party in interest; and the defendant’s contract was, substantially, that such relief would be granted.
There is, therefore, no ground, in my ojfinion, for saying that such an agreement was either against public policy or a wager.
I am aware that it is said by the learned justice giving the opinion referred to, that while it is to be inferred, probably, that Mr. Bonney, when he gave the five thousand dollar mortgage to Eoe, owned all the lots covered by it, it did not appear whether he first aliened the two lots mortgaged to Hawke orv the other lots, but he concedes that it may be inferred that. *450Hawke could not have mortgaged the two lots without having title.
That concession, without proof or even a suggestion that the residue of the property had been sold, warrants the further inference, as already stated, that the title to the residue continued in Judge Bonney.
Presumptions are to be made in favor of the legality, rather than the illegality of the contract; and it was incumbent on the defendant to establish the facts avoiding the obligation entered into, as the admitted facts were, prima facie, át least, sufficient to support its validity.
Assuming, then, the contract to be valid, the evidence offered in relation to the question of damages was properly excluded. The damages (as said in the opinion of the court below), related to a single breach or default; they were entirely uncertain, and were the proper subject of liquidation, by the parties. ' They were so liquidated, and hence not a penalty. Clement v. Cash, 21 N. Y. 253; see also the remarks of Ruggles, J., in Cotheal v. Talmage, 9 N. Y. (5 Seld.) 551, maintaining the same principle.
If the proof offered had been admitted, it could not have altered or in any way affected the rule of damages.
It mity, however, be proper to add, that if the amount mentioned in the contract is to be construed as a pepalty, the defendant was not prejudiced by the exclusion of the evidence.
The plaintiff only claimed and recovered the deficiency due on his bond and mortgage, after the surplus arising from the proceeds of sale had been applied and credited thereon.
That amount he was, in any view of the case, entitled to recover ; and I see no principle on which the claim of the defendant can be sustained, that the plaintiff could not recover without a tender to him by the plaintiff of a reassignment of the bond and mortgage.
It is not necessary here to inquire whether hé could be entitled to such reassignment on payment of the deficiency sued for. He certainly could not demand it without payment or satisfaction of the amount due from him to the plaintiff on his own contract.
It follows from the views above expressed that the judgment *451of reversal should be reversed, and that the original judgment should be affirmed, with costs in both courts.
Order reversed, and judgment for plaintiff on the verdict, with costg.