After the execution of the mortgage a piece of the premises, which for convenience we will designate as A, was conveyed to Mary. Subsequently to that conveyance another piece, which we will designate as B, was conveyed to Eliza Baldwin. And after that second conveyance a third piece (supposed to be the residue), and which we will designate as C, was conveyed to Eliza Baldwin and Cornelia Baldwin. It is not disputed that on this foreclosure sale the piece A is in any case to be sold last.
If nothing more had taken place than is above stated it is plain that C would be sold first and B second. But after the last named conveyance Eliza and Cornelia gave their bond charging their separate property to Van Loan, and secured it by a mortgage executed by both of them upon piece 0. The bond and mortgage are now held by-,.
If the conveyance of piece-0 had been to Eliza alone, and if she had given her bond and mortgage thereon to Van Loan, then the case would be plainly one where the plaintiff held security on two pieces of property, B and C, and Van Loan only on one, C, and both the pieces of property belonged to the same person, Eliza, therefore on the familiar principle the plaintiff would have to enforce his debt first out of B, leaving C, if possible, for Van Loan.
If, on the contrary, the conveyance of C had been to Cornelia alone, and she alone had given a bond and mortgage thereon, then that principle would not apply; because the two pieces of property *347would not belong to the same person, but one would belong to Eliza and tbe other to Cornelia. Unless some other equity appeared, therefore, the principle would not apply. And in this case the equity would be (on the facts as they appeared) that which arises from the rule of the inverse order of alienation.
Now, in the present case Eliza and Cornelia have separate estates, though undivided, in the land. Their rights and equities are just the same as to these undivided estates as they would be in respect to divided estates. Let us suppose, then, that instead of -a conveyance of piece C to Eliza and Cornelia, there had been made simultaneously a conveyance of a piece D to Eliza and a piece E to Cornelia, the two pieces D and E together making the residue C, and then that Eliza and Cornelia had mortgaged D and E to Van Loan as in the present case'. Then, as above stated,- the equity would be that piece E belonging to Cornelia should be sold before piece B, and that piece B should be sold before piece D. That is to say, the principle of marshalling assets for the benefit of Van Loan would require that B should be sold before D, while Cornelia’s liability under the rule of the inverse order would require her piece E to be sold before B.
That same principle applies in the piesent case, where the rights of Eliza and Cornelia are undivided interests in piece C, just as it would apply if the rights of Eliza and Cornelia were in divided pieces of land. So that according to equity the undivided half of Cornelia in piece 0 should be sold first; then piece B; then the undivided half of Eliza in piece 0, and lastly piece A.
But it would be a sacrifice of property to sell undivided parts of it where the whole can be sold. And therefore the equity above declared must be worked out by the application of the proceeds of the sale. Both pieces of property, B and C, must be sold, and the order of sale is therefore immaterial, and the application of the avails must be as follows: One-half of the avails of C must be first applied to plaintiff’s mortgage and costs, as representing Cornelia’s share. Next, the avails of B must be so applied, and lastly the other half of the avails of piece C, representing Eliza’s share. Any surplus after the plaintiff’s mortgage and' costs have been paid must be brought into court for the parties entitled thereto, according to the rights above declared.
*348As Eliza and Cornelia are jointly liable on the bond to Yan Loan, some question may arise between them as to their respective rights by the way of contribution. It may result that the property of one will have paid more than her share of the Yan Loan mortgage. Those rights we cannot settle at this time. Possibly they may be adjusted on the distribution of the surplus, but even that we cannot now say. On the question of the allowance of five per •pent, a majority of the court are in favor of affirmance.
The judgment will be modified in accordance with this opinion, .and as modified affirmed, without costs to either party.
Present — Learned, P. L, Rumsey and Osborn, J J.Judgment modified in accordance with opinion, and as modified •affirmed, without costs to either party.