The opinion of the court was delivered by
Williams, Ch. J.From the several deeds and the decree in chancery, which were in evidence, it is evident, that, although Ward was not a party to the decree of foreclosure obtained by Herrick and his wife against the plaintiffs in this suit, so as to be affected by that decree, yet that the land, which was deeded to him by Zilpha Ann Haskins, and which he mortgaged to her by the name of Zilpha Ann Herrick, was the same land which he deeded to Barnet with covenants of warranty, and which Barnet quitclaimed to McIntyre, one of the plaintiffs. In the deed from Zilpha Ann to the defendant, of December 8,1832, it is called No. 40; yet it is also described as an estate, which she derived from her father, — which it now appears was lot No, 39, and not No. 40. The defendant neither shows, nor claims, any other title, than what he took from her. It' is also evident, that it was his duty to pay the amount due on the mortgage he executed to her on the twenty ninth of December, 1832; he executed the notes, it was his debt to pay, and was not excepted in his deed to Barnet; and moreover he repeatedly promised the plaintiffs to pay the same, before they paid the amount of the decree.
The plaintiffs, when they paid the amount of the decree made in the case of Herrick and wife against them, paid the debt of the defendant, and which he ought to repay to them. It was money paid for his benefit, and for which this is the proper and appropriate action, unless there are some legal obstacles in the way of a recovery.
In the first place, the payment cannot be considered as purely voluntary. By the decree in chancery it became necessary for these plaintiffs, or one of them, to pay the decree founded on the mortgage, or the estate would have become absolute in Herrick and his wife, and they would have lost all their interest therein.
In the second place, this defendant had himself promised the *439plaintiffs to pay and settle this very’debt; and they having paid the debt of the defendant, which he promised to do himself, it cannot be considered as a voluntary payment, but rather as paid at his request.
In the third place, these plaintiffs were so situated, that it was a matter of prudqnce for them to join in the payment of the decree founded on the mortgage. The title had not absolutely passed from McIntyre to the other plaintiff, Kingsbury. Both had an interest to have the title clear, and the mortgage satisfied ; and if both united to pay the defendant’s debt, it is not for him to say they may not unitedly and jointly maintain -an action therefor, if there are no other impediments in the way of'their maintaining this action.
But, in the fourth place, it is most strongly urged, that the plaintiffs cannot have this action, but must resort to an action of covenant in the name of one or the other of these plaintiffs. In answer to this we say, that it is not certain, that these plaintiffs, or either of them, have any such action against the defendant. He deeded to Barnet by deed with the usual covenants. As there was an incumbrance on the land, the covenant was broken at the time, and did not pass to the plaintiff McIntyre by Barnet’s deed. Barnet, never having extinguished the incumbrance, could only recover nominal damages, unless we could say, that the payment, which these plaintiffs made in satisfaction of the decree, was a payment made by him, — a fiction not supported by the facts, or the law, and to which it is unnecessary to resort, to defeat this action.
The' covenant of warranty, contained in the defendant’s deed toBarnet, which alone has passed to McIntyre, has not been broken. The payment made by the plaintiffs upon the mortgage was to prevent an eviction. We do not see that the plaintiffs, or either of them, have or can maintain any action of ejectment against the defendants ; and we are not disposed to turn them over to a doubtful remedy in the name of another, when we think they have a remedy in this action. By a bill in equity the plaintiffs might undoubtedly have compelled the defendant to do what he promised them he would do, that is, pay his debt to Zilpha Ann Herrick, and thus release the estate from that incumbrance, or might now compel him to refund to them what they have paid for him. This, however, would have rested on the same ground as that on which they attempt to *440charge the defendant in this action, viz., that it was his duty to pay the incumbrance; and on this ground the remedy in this action is as effectual and complete.
The plaintiffs, who have jointly paid the debt of the defendant, under the circumstances detailed in the case, are entitled to recover in this action. The decision of the county court, adverse to their recovery, was incorrect.
How much the defendant is under obligation to pay, whether he is bound by the decree, to which he was not a party, but of which he had notice, and what is to be the effect of his promise to settle the debt, or whether the whole amount decreed was actually due on the mortgage, are questions which will arise on the assessment of damages.
The judgment of the county court is reversed.
Redfield, J., dissenting.