13 Ind. 141 | Ind. | 1859
In 1853, Abijah W. Pitcher and eight other persons became sureties of Robert L. Browning in the sum of about 6,000 dollars. To indemnify those sureties, Browning executed to them, jointly, a mortgage on the furniture in the Madison hotel. The mortgage was duly recorded. The sureties paid, in nearly equal sums severally, the 6,000 dollars owed by Browning. Browning seems subsequently to have abandoned the hotel, leaving the furniture in it, and the hotel proprietors leased the same to Culver Woodburn. A part of the mortgagees of the furniture were proprietors of the hotel building, and did not desire to proceed, at the time this suit was commenced, to sell the furniture to reimburse themselves the
There are cases where creditors may obtain priority of lien and payment by priority in institution of suit. But these are where no lien has been, or can be, acquired at law. Hubbs v. Bancroft, 4 Ind. R. 388.—Butler v. Jaffray, 12 id. 504. The case at bar is not such an one. Here a lien had been acquired at law by express contract. A mortgage had been taken and put upon record. There is nothing showing an abandonment, a waiver, or a forfeiture of that lien. How could the parties holding be deprived of it?
The amounts paid by the co-sureties were not paid out of a common fund, but each raised money to pay his proportion; and the amounts they thus severally paid, became separate demands against Browning, for which several suits could, and perhaps should, have been brought, 1 Swann’s Pr., p. 41, and note 41. And each surety had a vested interest in the mortgage, to the amount of his payment. How could he be deprived of this for the benefit of a co-surety ?
Whether the judgment ordering the sale of the whole property on the application of a part of the mortgagees, instead of their interest in it, was right, we need not inquire. It was acquiesced in by the other mortgagees, and they simply asked to receive, out of the proceeds of the
The judgment is reversed with costs. Cause remanded, &c.