This is a suit in equity whereby it is sought to have applied in payment of the plaintiff’s claim the excess of money in the hands of a mortgagee arising from foreclosure and remaining after satisfying the debt secured. It is alleged in the bill that before the foreclosure, the plaintiffs were employed by the defendant Frank Lammi “in the presence, with the knowledge and approval of the defendant Ida Lammi” to make repairs upon the building on the land covered by the mortgage, that the plaintiffs recovered a judgment in the Superior Court against the defendant Frank Lammi for the amount due for such repairs *577which is unsatisfied, that at the time of the recovery of the judgment the plaintiffs were ignorant of the interest of Ida in the real estate on which the repairs were made, that Frank and Ida were in fact owners as tenants in common of the equity of redemption therein subject to the mortgage and that the work performed and materials furnished at their request were for their mutual benefit.
Final decree was entered sustaining the demurrer of the defendant Ida Lammi and dismissing the bill as to her. The plaintiffs’ appeal brings the case here properly. Reynolds v. Missouri, Kansas & Texas Railroad, 224 Mass. 253. Hutchins v. Nickerson, 212 Mass. 118.
The demurrer was rightly sustained for several reasons. The bill sets out no contract between the plaintiffs and the defendant Ida Lammi. There is no allegation that the agreement of the plaintiffs was made with her. On the contrary the express averment is that the plaintiffs were employed by the defendant Frank Lammi. It is not alleged that Frank was the agent of Ida or acted in her behalf in employing the plaintiffs. The marital relation (if it be assumed to exist) is not enough alone to show agency. Harvey v. Squire, 217 Mass. 411, 414. No agency arises by implication out of a tenancy in common. That is not a partnership but simply a kind of joint ownership.. If agency exists it must be alleged and proved. Thorndike v. DeWolf, 6 Pick. 120. Williams v. Knibbs, 213 Mass. 534.
If it be assumed, but without so deciding, that the allegations of the bill are adequate to show an original joint indebtedness to the plaintiffs by Frank and Ida Lammi, the same result follows. The bill alleges that the plaintiffs have recovered judgment for the debt here in issue against the defendant Frank Lammi in a court of competent jurisdiction. This being alleged as a fact in the bill, its force and effect upon the rights of the parties may be raised by demurrer. In order to have recovered that judgment, the plaintiffs must have proved that Frank Lammi alone was responsible for this account. They cannot recover on their original debt. They have elected to hold Frank Lammi by taking judgment against him alone. Ward v. Johnson, 13 Mass. 148. Kingsley v. Davis, 104 Mass. 178. Weil v. Raymond, 142 Mass. 206, 213.
*578They cannot recover in this suit on the original debt, because that has been merged in the judgment and under the circumstances here disclosed that defence is open on demurrer. Cowley v. Patch, 120 Mass. 137. Frost v. Thompson, 219 Mass. 360, 367. The plaintiffs cannot recover against Ida Lammi on the judgment because she is not a party to it.
Decree affirmed with costs of appeal.