41 Fla. 210 | Fla. | 1899
We have been unable to discover any principle by which that feature of the decree appealed from can be sustained. By their joint purchase George N. Sarven and Charles B. Walker became tenants in common of the lands conveyed to them by James D. Sarven, each being entitled to> an undivided one-half interest therein. The debt for purchase money was a joint debt for the ..whole of which each was equally bound to James D. Sarven, and the grantor’s lien reserved in the latter’s deed of conveyance was a lien for the whole debt upon the whole property. As between themselves, however, George N. Sarven and Charles B. Walker were each
It is suggested in a brief purporting to have been filed in this court in behalf of Mrs. Mayes that the decree can be sustained by applying the rule that where lands are mortgaged to secure a debt and a part of the lands are subsequently sold and conveyed by the mortgagor, the portion unsold is primarily liable under the mortgage (Ellis v. Fairbanks, 38 Fla. 257, 21 South. Rep. 107), and that the lien reserved by James D. Sarven was a mortgage lien bringing it within the rule. But the rule does not fit the present case. Here we have tenants in common jointly mortgaging the joint property for a joint debt. To say that one of them can by selling and conveying his entire interest in the property thereby charge the whole joint debt primarily on the other’s interest is to assert a proposition so clearly erroneous as to require no argument to refute .it. In the language of Judge Cooley: “There are no authorities which sanction such a doctrine, and if there were any, they could only be regarded as inadvertent departures from reason and justice.” Southworth v. Parker, 41 Mich. 198, 1 N. W. Rep. 944. See, also, Rathbone v. Clark, 9 Paige Chy. 648.
It appears from the record that before this appeal was taken, the decree complained of was. executed by sale of the appellant’s property in accordance with its terms. This fact does not affect this appeal, nor prevent the reversal of the decree appealed from (County Commissioners Polk Co. v. Johnson & Co., 21 Fla. 577; Burrows v. Mickler, 22 Fla. 572; O’Hara v. MacConnell, 93 U. S. 150; Peer v. Cookerow, 14 N. J. Eq. 361), although if the purchaser’s title acquired at such sale is such that a reversal of the decree will not affect it
The decree appealed from, in so far as it provides “that the one undivided half interest of the defendant Charles B. Walker be first sold, and if the proceeds of such interest be not sufficient to satisfy said judgment and interest and the costs of this suit, then the said master will immediately proceed and sell the other one undivided half interest in said lands of the defendant Willie B. Mayes,” is reversed, and in all other respects said decree is affirmed, without prejudice to the right of Mrs. Mayes or appellant to maintain any appropriate proceedings against the other to enforce contribution or any other legal or equitable rights as between themselves.