The three plaintiffs allege that they paid in full a deficiency judgment entered against them and six other persons after a mortgage foreclosure sale. They bring the present action against the executrix of the estate of one-of said six judgment debtors to recover his proportionate part of the debt paid by plaintiffs. Defendant executrix prosecutes this appeal from a judgment that she is liable in the sum of $4,026.09 for one-fourth of the deficiency judgment.
The deficiency judgment was entered on August 23, 1932. On July 22, 1933, the plaintiffs herein paid to the judgment creditor $5,816.61, and delivered to her a promissory note and deed of trust for $11,000 executed by plaintiff Frank W. Barnes and his wife. On said date the judgment creditor executed and delivered an assignment of the judgment to Will H. Winston, the nominee of plaintiffs. The total of the cash paid and the principal sum of the $11,000 note equal the *430 full amount of the deficiency judgment, with interest from the date of judgment and costs.
Almost a year later, on July 19, 1934, Winston executed an acknowledgment of satisfaction of the judgment which was filed for record.' On the same date the plaintiffs filed a notice of payment and claim to contribution under section 709, Code of Civil Procedure. Under the provisions of said section a joint judgment debtor who pays more than his proportion of a debt “is entitled to the benefit of the judgment to enforce contribution or repayment, if, within ten days after his payment, he file with the clerk of the court where the judgment was rendered, notice of his payment and claim to contribution or repayment”.
In the instant case no payment of any sort took place on July 19, 1934. The only payment made was on July 22, 1933, at which time plaintiffs took an assignment of the judgment in the name of Will IT. Winston, their attorney. Plaintiffs were not authorized under section 709, Code of Civil. Procedure, to file a notice of claim for contribution within ten days of July 19, 1934, and the filing of said claim was a nullity.
The remedy provided by said section, however, is not exclusive, but cumulative. Instead of proceeding thereunder the debtor upon paying the judgment may take an assignment thereof from the judgment creditor.
(Williams
v.
Riehl,
But where the judgment debtor neither takes an assignment nor proceeds under section 709, Code of Civil Procedure, payment to the creditor constitutes satisfaction not only as to him, but also as between the judgment debtor making payment and his co-obligors.
(National Bank
v.
Los Angeles etc. Co.,
In the instant case the action is brought in time if the five-year period of limitations dating from entry of the deficiency judgment applies, but too late if the two-year period from date of payment to the creditor (July 22, 1933) is controlling. Defendant contends that the two-year period governs for the reason that plaintiffs caused their nominee, Will II. Winston, to execute and file a satisfaction of judgment on July 19, 1934. Said satisfaction of judgment and also the notice of claim for contribution under section 709, Code of Civil Procedure, were filed on that date under mistake. No payment of any sort took place on July 19, 1934, and the filing of the claim under section 709, Code of Civil Procedure, within ten days of that date was unauthorized. Plaintiffs should not lose their rights under the assignment of July 22, 1933, by reason of the abortive filing of said instruments of July 19, 1934. (See
Merchants Nat. Bank
v.
Great Falls Opera House,
23 Mont.. 33, 34 [
*432 The complaint is framed on the theory that plaintiffs are proceeding under section 709, Code of Civil Procedure. The judgment in any -event must be reversed for the reason that defendant is not liable for so large a proportion as one-fourth of the deficiency judgment. Plaintiffs’ remedy, although on the original judgment, is not, in the circumstances of this case, under section 709, but by virtue of the assignment of the judgment to them. Before retrial to determine the extent of defendant’s liability plaintiffs should amend their complaint.
In the instant case payment to the judgment creditor was in part by means of the promissory note of plaintiff Barnes and his wife, secured by deed of trust. Payment by the debtor’s personal note to the creditor gives rise to a right of contribution if accepted by the creditor in satisfaction of the debt.
(Ralston
v.
Wood,
The original note upon which the deficiency judgment was based was given for the purchase price of land. As to the payee of said note, plaintiffs and their comakers, including the defendant’s testate, were primarily liable for the entire debt. But as between themselves, each maker was primarily liable for his proportion of the debt, and a surety for his co-obligors as to the balance.
(Chipman
v.
Morrill,
By the judgment of the court below defendant is held liable to contribute one-fourth of the amount of the deficiency judgment to the three plaintiffs who paid said deficiency.
*433
This is erroneous. In an action against one co-obligor for contribution he may not be held for more than his just proportion of the debt in the absence of a showing of insolvency of the other co-obligors. The liability
inter se
of the comakers of a note given for the purchase price of land is presumptively proportionate to their interest in the land.
(Chipman
v.
Morrill, supra; Clark
v.
Austin, supra; Weed
v.
Calkins, supra;
see, also, note, 64 A. L. R. 216;
In the instant case it cannot be ascertained from the record whether liability on the deficiency judgment should be apportioned (according to interest) between all ten purchasers, or only nine. The deficiency judgment is against only nine. Whether the tenth person did not sign the note, or whether notwithstanding he signed the note he was not made a party to the deficiency judgment does not appear. If said purchaser did not sign the note for the reason that he had paid in cash upon the purchase an amount commensurate to his interest in the land, the liability upon the purchase price note and deficiency judgment should then be divided between the other nine purchasers. But if such tenth purchaser, as between himself and his co-obligors, should justly bear a portion of the debt, the rule of apportionment as between all ten purchasers is not affected by the circumstance that the creditor did not take judgment against him on said debt. A creditor by suing less than all of those jointly liable to him cannot deprive a debtor paying him of the right to hold each of his coobligors for their proportion of the debt.
(Richter
v.
Henningsan,
If contribution cannot be obtained from any joint debtor by reason of his insolvency, the loss arising therefrom
*434
is borne proportionately by the solvent co-obligors.
(Lorimer
v.
Julius Knack Coal Co., supra; Hutson’s Adm.
v.
Combs,
The judgment is reversed.
Shenk, J., Langdon, J., Curtis, J., Waste, C. J., and Edmonds, J., concurred.