Coffin v. Parker

Barnard, P. J.

It is difficult to see what grievance the appellants have against this judgment. Fourteen lots of land, each subject to a separate lien by mortgage, were made subject to a general lien by mortgages of $14,000 subsequent thereto. The lots had passed away from the mortgagor, and a title to one. was held by plaintiff, and of three others to defendants, appellants. The plaintiff applied to the defendant Parker, who held the $14,000 mortgage, and who also held the title to eight of the lots by title.acquired subsequent thereto, and which were really subject to its payment, to contribute ratably *101thereto. Parker refused, and this action is brought to compel its payment in that way. The decree provides that the lots shall each bear a definite burden, found by the decree; that there is no priority as to the $14,000 mortgage as between the lots; and that all are equally subject to its payment. There is no point made that the values are incorrect, or that the equality of lien is not just; but the decree provides that the plaintiff may pay the $14,000, and that the holder assign it to him; that each lot then pay its proportion in common with plaintiff’s lot; and that the lot of a defaulting owner may be sold to pay his proportion. The appellants seem to urge, as an injustice and an inequality in the decree, that the plaintiffs are compelled to pay out a large sum of money to take up a mortgage which covers other property than his own lot. The plaintiff does not complain; and, if there is any risk of loss, the plaintiff assumes it. The appellants are required to pay only their fair proportion; and, if they do that, it is immaterial to them whether the others pay or not. These lots are not to be sold except for the amount properly charged upon them severally. It is not a good ground for reversal that the plaintiffs may not take up the mortgage. They have asked to do so, and the right has been accorded to them. The protection of those interested demands that they do so. There is no reason to doubt their good faith. There is no suggestion of such an intent; and, if such a result happens, the remedy is not by alleging error, but for application to be made to the court in view of the fact of such refusal. The judgment should be affirmed with costs.

Pratt, J., concurs.