260 Mass. 165 | Mass. | 1927
This is an appeal from a decree of the Probate Court disallowing payments made by the appellant, Joseph A. Ratte, administrator of the estate of his wife, Ilda Ratte.
The husband and wife owned a tract of land as tenants in common, which they mortgaged for $2,800. This note and mortgage, as well as all subsequent mortgages, were executed by them as principals. The mortgage for $2,800 was later discharged and a new mortgage executed. Two other parcels of land were subsequently acquired by the husband and wife and held by them as joint tenants. In June, 1909, a mortgage for $10,400 was made, covering the tract owned in common and one of the lots held by them as joint tenants.
The note was signed by the appellant and his wife as principals. The mortgage securing the note covered the land which they held as tenants in common, as well as the land owned by them as joint tenants. On the death of the wife, the husband surviving her, the entire interest in the land held by them as joint tenants belonged to him. See Palmer v. Treasurer & Receiver General, 222 Mass. 263, 264; Marble v. Treasurer & Receiver General, 245 Mass. 504. The right of contribution arises when, and not before, a debt is paid by one debtor for the benefit of all the joint debtors. Wood v. Leland, 1 Met. 387, 388, 389. See Hill v. Fuller, 188 Mass. 195.
When the note and mortgage were paid by the appellant, he owned one half of the land which had been held by the tenants in common, but the land formerly held by the husband and wife as joint tenants was then his sole property. As the mortgage included all the real estate, in paying the
The husband should, however, be allowed by way of contribution for the payments made by him for the benefit of the wife’s share in the land held by them as tenants in common. See Packard v. Nye, 2 Met. 47; Newcomb v. Gibson, 127 Mass. 396. Mrs. Ratte was not a surety for her husband. She was a joint maker of the note and mortgage, and her estate should contribute to the extent to which it was exonerated by the discharge of the mortgage. As the burden was a common one, they were equally hable for the encumbrance on the land held in common. See Ricker v. Ricker, 248 Mass. 549; Bispham, Equity (5th ed.) § 334.
In June, 1909, the mortgage on the land held in common amounted to $4,600. This mortgage was discharged and a new mortgage executed covering this land and one of the tracts acquired by the appellant and his wife as joint tenants; the difference between the amount of the new mortgage and $4,600 being applied to the purchase price of the property in joint tenancy. This proportion continued when the mortgage for $32,000 was given; when this mortgage was reduced by payments there was no application of the payments and
To the $4,600, the amount of the mortgage on the land held in common, there should be added interest from the date of Mrs. Ratte’s death, November 18, 1918, to the date of the payment of the mortgage; and for one half of this total amount the appellant should be allowed in his account.
It follows that the decree must be reversed, and. the case remanded to the Probate Court for a further accounting in accordance with this opinion.
Ordered accordingly.