(dissenting). The opinion of the majority rests entirely upon the joint and several obligations of the husband and wife to the mortgagee. The majority say that the liability of both continued after the death of the husband and his obligation became a debt of the estate; that the payment of an indebtedness by one or more co-obligors is for the benefit of all and that the one making the payment is therefore entitled to contribution from the other. The majority further hold that the fact that the mortgaged property passed to the wife as surviving tenant by the entireties, and did not therefore constitute one of the assets of the estate, is, as between the co-obligors, immaterial. With the latter conclusion I disagree.
I do not think that the existence of a joint and several obligation in this case is necessarily controlling or that the fact that the property is held by husband and wife as tenants by the entireties is of no importance. As I view the opinion of the majority it ignores completely the fact that the property upon which the mortgage was placed was held by husband and wife as tenants by the entireties; the fact that the property was given as security or collateral for the obligation; the fact that the pro*359ceeds of the mortgage were used for the improvement of the property; the fact that by reason of a contribution from the estate of the husband of one-half of the amount due under the mortgage the widow would receive a windfall or unjust enrichment, to which she would not he equitably entitled.
As between joint debtors a joint obligation establishes nothing beyond showing a joint liability on the part of the debtors to the creditor. The question as to what portion of the debt each defendant should pay, or the right to contribution at all, is a matter resting entirely between the joint debtors; it is not in any respect adjudicated by the responsibility of the debtors to the creditor. See 13 Am. Jur., Contribution, Section 60, p. 55.
The right of contribution is a personal obligation entirely distinguished from and independent of the original contract. Its underlying principle is that parties having a common interest in a subject matter shall bear equally any burden affecting it and that no one shall bear a common burden in ease of the rest. Eliason v. Eliason, 3 Del. Ch. 260, 263. It is founded not upon contract but upon principles of equity and fundamental justice. See 13 Am. Jur., Contribution, p. 9. It can never he used to enforce an unjust and inequitable demand. Hedges v. Mehring, 76 Ind. App. 496, 130 N. E. 423; Pasquinelli v. Reed, 101 Pittsb. Leg. J. 220, affirmed 174 Pa. Super. 566, 102 A. 2d 219. See 18 C. J. S. Contribution § 2, p. 4. The debt here is a joint and several obligation. In this State husband and wife hold property as tenants by the entireties per tout and not per my, that is, each holds a fee simple title to the whole property subject to being divested by his or her death prior to the death of the survivor. Upon the death of the husband his interest ceased, leaving the widow as the sole owner in fee simple under the original conveyance. In re Cochran’s Real Estate, 31 Del. Ch. 545, 66 A. 2d 497.
At the time of the creation of the obligation the property subject to the mortgage was owned by both the widow and deceased as tenants by the entireties. Upon the death of the hus*360band, his interest thereby being extinguished, the wife became the sole owner subject to the mortgage. A situation thus arose where, although the property given as collateral for the payment of the bond and mortgage then became the sole property of the widow, the obligation of the estate of the deceased husband and the widow to the mortgagee remained.
I think that it would be inequitable to permit the widow under such circumstances to require the estate of her deceased husband to contribute an equal share of the amount due under the mortgage. In the first place, she would thereby receive a windfall or unjust enrichment, to which she would not be equitably entitled. Prior to the death of her husband each cotenant as one of the tenants by the entireties owned the property in question subject to a mortgage of $8,000. Assuming that the property was worth $20,000, there was an equity of $12,000. If the widow now should pay off the full amount of the mortgage, as I think she should, the amount of the equity would remain unchanged. However, if she should be permitted to compel the estate of her deceased husband to pay off one-half the amount due under the mortgage, or $4,000, she would then own the property subject only to a lien of $4,000, giving her an equity of $16,000 instead of $12,000. Under such circumstances the widow is claiming contribution in a case where she has sustained no detriment against one who no longer has any interest in the property mortgaged as security for the payment of the obligation, as to which there is no common burden because of the passage of title to the surviving spouse. This is neither equitable nor just. Ratte v. Ratte, 260 Mass. 165, 156 N. E. 870; Lopez v. Lopez, Fla., 90 So. 2d 456; Geldart v. Bank of New York & Trust Co., 209 App. Div. 581, 205 N. Y. S. 238. See also 13 Pittsb. L. Rev. 760; 25 Temple Law Quarterly 521; 3 Hastings L. Jour. 161.
Secondly, before the widow may recover contribution against the estate of her deceased husband, she must apply the collateral — the value of the equity in the projjerty — to the payment of the obligation. Since it is conceded that the property is *361well worth any amount which might be due under the mortgage, the widow would actually have no claim to contribution.
It is a fundamental rule of equity that when one of two joint obligors claim contribution from the other he is bound to share the proceeds of any security which he may have redeemed by discharging the debt. Cochran v. Walker, 82 Ky. 220, 56 Am. Rep. 891; Labbe v. Bernard, 196 Mass. 551, 82 N. E. 688, 14 L. R. A., N. S., 457; Vandiver v. Pollak, 107 Ala. 547,19 So. 180; Chappell v. John, 45 Colo. 45, 99 P. 44; Restatement of the Law (Restitution), Sec. 85, p. 377. When one cotenant pays off a debt for himself and one or more others as a necessary incident thereto, he has protected the interest of the other co-obligors. It is for this reason that he is allowed contribution. In the case of property of tenants held by the entireties, however, upon the death of one cotenant his interest in the property ceases and there is no interest — at least as far as the property is concerned — to protect. It is true that the bond is indeed an indebtedness against the estate but in my opinion that amounts only to a secondary obligation after the collateral — the equity in the property — has been applied to the payment of the bond and mortgage. It seems inequitable and contrary to the principles of fundamental justice to require the estate of a deceased tenant by the entireties to contribute toward paying off an incumbrance on the property of another.
In other similar situations, where a co-obligor has an interest in the property subject to the mortgage, he would not — as between him and the other co-obligors — be primarily liable for the payment of the mortgage; his liability would arise only after the collateral in which he no longer had an interest was applied to the payment of the obligation. Suppose a case of a joint tenant co-mortgagor who sells his interest to his cotenant. Although formerly an owner and primarily liable, he now has no interest in the property. As between the owner and the grantor-mortgagor the land is the primary fund out of which the mortgage should be paid; the owner cannot claim that the mortgagor should pay off the mortgage and thus exonerate the land al*362though the mortgagor remains personally liable for any deficiency. See Equitable Trust Co. v. Shaw, 22 Del. Ch. 47, 194 A. 24. See also Pomeroy’s Equity Jurisprudence, § 1205, p. 613, notes 16 and 17. I think that the equitable principle enunciated in the cases referred to in Pomeroy are applicable here.
I am unable to accept as a sound principle of law appellants’ contention that because the transfer in this case arose by reason of the death of one tenant by the entireties and not by purchase the same principle of law should not apply.
For the reasons above set forth it is my opinion that the right of the widow to contribution should be denied and that the judgment of the Orphans’ Court should be affirmed.
(November 25, 1958.)
1. Appeal and Error.
A point mentioned in the brief but expressly abandoned at the argument cannot be raised on reargument.
2. Parties.
Party having no interest in property involved in suit is not entitled to intervene.
Southerland, C. J., and Wolcott and Bramhall, J. J., sitting.
Charles L. Paruszewski for appellant.
Stewart Lynch for St. Francis Hospital, Inc., appellee; Blaine T. Phillips for Delaware Hospital, Incorporated, appellee; Robert H. Richards, Jr., and Stephen E. Hamilton, Jr., (of Richards, Layton and Finger) for Wilmington General Hospital Association, Inc., and Homeopathic Hospital Association of Delaware, appellees; H. Albert Young and Bruce M. Stargatt for Ladies Bichor Cholem Moshev Zekenim Society and Hachnosas Orchim, appellee.
Supreme Court of the State of Delaware,
No. 16, 1958.
Petitions for reargument and for intervention. Petitions denied.
*363Southerland, C. J.:On Petition for Reargument
Counsel for certain of the legatees takes exception to the following statement in our opinion of October 30, 1958, 145 A. 2d 563:
“The payment of the debt by the survivor is certainly a benefit to the estate because it discharges a liability of the estate.”
It is said that this statement is incorrect, because the estate in in this case now has no liability for the debt. Of course the only pertinency of this suggestion is to show that the debt has not been paid by the estate and will not be paid. Although the point was mentioned in the brief it was expressly abandoned at the argument. As we said in the opinion, the parties agreed that the executor was entitled to instructions, and we therefore did not consider or pass upon the necessity of payment as a prerequisite to contribution. It is now too late for the legatees to raise this question.
The petition for reargument is denied.
Petition to Intervene
In our opinion of October 30, 1958, we referred to the case of Carpenter v. Webb, now pending in the Court of Chancery, ......A. 2d....... The plaintiff in that case now petitions to intervene in this Court for the purpose of reargument.
Since the petitioner has no interest in the property involved in the suit before us, she is not entitled to intervene. 67 C. J. S. Parties § 57, p. 981. If the petition is treated as one for leave to appear as amicus curiae on reargument, it is unavailing since reargument has been denied.
The petition for leave to intervene is denied.
Bramhall, J., although adhering to his opinion upon the merits of the case, concurs in the foregoing opinion.