Wilde J.
delivered the opinion of the Court. Upon the facts disclosed in the bill and the answers of the several defendants, two questions have been submitted, the one relat:ng to the plaintiff’s right to redeem the mortgage, and the other, to his claim for contribution.
The first question is, whether there has been such a neglect or refusal on the part of Justin W. Clark, one of the defendants, to state the account of the sum due on the mortgage, as will authorize the Court to sustain the bill, by virtue-of St. 1821, c. 85, <§> 1, and to decree a redemption.
The second question is, whether the other defendants, or any or either of them, are liable to contribution.
The first question depends on the construction of the statute, in relation to the facts of the case. The defendants’ counsel contend that nothing more is required by the statute, of the mortgagee or those claiming under him, than to state the balance due on the mortgage, without stating any account of the rents and profits and expenses for repairs ; and that even that was not required in this case, because the demand of an account was not made in pursuance of the true intent of the statute, but much exceeded what the plaintiff had a right to demand.
We are, however, of opinion, that the demand was well enough, and that the plaintiff, by the true construction of the statute, had a right to insist on the disclosure of the items of the account demanded. There is an express demand of a true account of the money due on the mortgage ; which is sufficient, if nothing more had been added. A demand was also made for an account of the rents and profits of the mort[54]*54gaged premises, and the expenses for repairs and improvements, if any had been made ; and other demands and proposals were superadded, of which the defendant Clark was not bound to take notice. But this superfluous matter did not vitiate the demand of an account of the money due on the mortgage, which was made in strict conformity to the words of the statute. The defendant Clark was therefore bound to comply with the demand so far as it was made in pursuance of the statute, which we think he failed to do. The plaintiff could not ascertain by the account furnished, what sum was justly due, and it was the intention of the legislature that the mortgagee should, on request, furnish the mortgager, or the person having the right to redeem, with such information as would enable him to tender the sum justly due ; and not to leave him exposed to the danger of tendering more for want of knowledge of the facts. This appears from the preamble of the statute, and is not inconsistent with the words of the enacting clause. The mortgagee, or the persons claiming under him, must “ truly state his or their account of the sum due on the mortgage that is, as we understand the statute to mean, the mortgagee, or those claiming under him, must truly state his or their account, so that the other party may ascertain the sum which may be justly due. This, we think, is a reasonable and by no means a forced construction of the statute, which is to be expounded liberally and beneficially in favor of the party seeking to redeem, so as to remove the mischief intended to be prevented. We consider therefore the account rendered as not sufficiently full and particular, and that the Court is authorized by the statute to sustain the bill, and to decree a redemption, and whatever equity may require.
The remaining question, whether the defendants Cooley and the two Partridges, or any of them, are bound to contribute towards redeeming the mortgage, is a question of greater difficulty, and requires a careful consideration of the respective rights of the parties at the time when the purchase was made by Oliver Cooley, under whom the plaintiff claims. Whatever rights Oliver Cooley then had, have been since transferred to the plaintiff.
The counsel for these defendants deny their liability to con [55]*55tribution as charged in the bill, on the ground that the purchase of the lot which Eli Cooley now holds by White, from whom they derive title, was prior to the conveyance to Oliver Cooley. White purchased of Strong in February 1812, and Oliver Cooley’s purchase was in May next following. And in the answer of Cotton and Samuel Partridge they aver, that at the time they purchased White’s title they had no knowledge of the mortgage to the bank, and that Oliver Cooley, when he purchased the lot which the plaintiff now holds, not only had knowledge of that mortgage, but also of the prior conveyance of the other lot to White. These averments are not controverted by the plaintiff, and it is admitted that the deed from Strong to White contains the usual covenants of seisin and warranty against all incumbrances ; and that Strong has since become and now is insolvent.
On these facts these defendants contend that they are not liable to the plaintiff for contribution ; for as they would not be so liable if Strong had redeemed, it is insisted that they are not so liable to his assignees, who took an assignment with a full knowledge of all the facts. To be sure they would not have been liable to Strong if he had redeemed : nor to his heirs, if he had died and they had redeemed. In Harbert’s case, 3 Co. 11, it is laid down, that if one is seised of three acres under an incumbrance, and enfeoffs A of one acre, and B of another, and the third acre descends to the heir, who discharges the incumbrance, he shall not have contribution, “ for he sits,” as it is said, “ in the seat of his ancestor.” That the principle here laid down is well established law as to the rights of the heirs and purchasers of a mortgager, cannot be doubted. And Chancellor Kent lays down the same principle as to successive purchasers from a mortgager, of different parts of the mortgaged property.
In Gill v. Lyon, 1 Johns. Ch. R. 447, the defendant was a purchaser from the mortgager, of a part of the land mortgaged, and had paid the full value of the land, and took a deed in which the grantor covenanted that he was lawfully seised, and that the granted premises were free from all incumbrances. After this conveyance Gill the plaintiff bought the residue of the land mortgaged, at a sale on a judgment against the mortgager ; and it was held that Lyon was not bound to contribute [56]*56towards redeeming the mortgage, because the parties were not on an equal footing in equity. And in Clowes v. Dickenson, 5 Johns. Ch. R. 240, it is laid down as a general principle, that between purchasers in succession of different parts of the equity of redemption of lands mortgaged there is no contribution, as they do not stand in cequali jure. These, and the other cases cited by. the defendants’ counsel, fully maintain the general doctrine on which they rely, to show they are not liable to contribution. But this case is distinguishable from all the cases cited, by a material circumstance. It is admitted by the Partridges, in their answer to tne plaintiff’s amended bill, that when Strong conveyed to While he took back a mortgage to secure the payment of the purchase money, and that this mortgage was unpaid and undischarged at the time Strong conveyed to Oliver Cooley. They say they had understood a part was paid before the latter conveyance. But this does not appear to be the fact, and the fact is not material, except to show the proportion in which the defendants may be liable to contribute.
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Wilde J.
delivered the opinion of the Court. Upon the facts disclosed in the bill and the answers of the several defendants, two questions have been submitted, the one relat:ng to the plaintiff’s right to redeem the mortgage, and the other, to his claim for contribution.
The first question is, whether there has been such a neglect or refusal on the part of Justin W. Clark, one of the defendants, to state the account of the sum due on the mortgage, as will authorize the Court to sustain the bill, by virtue-of St. 1821, c. 85, <§> 1, and to decree a redemption.
The second question is, whether the other defendants, or any or either of them, are liable to contribution.
The first question depends on the construction of the statute, in relation to the facts of the case. The defendants’ counsel contend that nothing more is required by the statute, of the mortgagee or those claiming under him, than to state the balance due on the mortgage, without stating any account of the rents and profits and expenses for repairs ; and that even that was not required in this case, because the demand of an account was not made in pursuance of the true intent of the statute, but much exceeded what the plaintiff had a right to demand.
We are, however, of opinion, that the demand was well enough, and that the plaintiff, by the true construction of the statute, had a right to insist on the disclosure of the items of the account demanded. There is an express demand of a true account of the money due on the mortgage ; which is sufficient, if nothing more had been added. A demand was also made for an account of the rents and profits of the mort[54]*54gaged premises, and the expenses for repairs and improvements, if any had been made ; and other demands and proposals were superadded, of which the defendant Clark was not bound to take notice. But this superfluous matter did not vitiate the demand of an account of the money due on the mortgage, which was made in strict conformity to the words of the statute. The defendant Clark was therefore bound to comply with the demand so far as it was made in pursuance of the statute, which we think he failed to do. The plaintiff could not ascertain by the account furnished, what sum was justly due, and it was the intention of the legislature that the mortgagee should, on request, furnish the mortgager, or the person having the right to redeem, with such information as would enable him to tender the sum justly due ; and not to leave him exposed to the danger of tendering more for want of knowledge of the facts. This appears from the preamble of the statute, and is not inconsistent with the words of the enacting clause. The mortgagee, or the persons claiming under him, must “ truly state his or their account of the sum due on the mortgage that is, as we understand the statute to mean, the mortgagee, or those claiming under him, must truly state his or their account, so that the other party may ascertain the sum which may be justly due. This, we think, is a reasonable and by no means a forced construction of the statute, which is to be expounded liberally and beneficially in favor of the party seeking to redeem, so as to remove the mischief intended to be prevented. We consider therefore the account rendered as not sufficiently full and particular, and that the Court is authorized by the statute to sustain the bill, and to decree a redemption, and whatever equity may require.
The remaining question, whether the defendants Cooley and the two Partridges, or any of them, are bound to contribute towards redeeming the mortgage, is a question of greater difficulty, and requires a careful consideration of the respective rights of the parties at the time when the purchase was made by Oliver Cooley, under whom the plaintiff claims. Whatever rights Oliver Cooley then had, have been since transferred to the plaintiff.
The counsel for these defendants deny their liability to con [55]*55tribution as charged in the bill, on the ground that the purchase of the lot which Eli Cooley now holds by White, from whom they derive title, was prior to the conveyance to Oliver Cooley. White purchased of Strong in February 1812, and Oliver Cooley’s purchase was in May next following. And in the answer of Cotton and Samuel Partridge they aver, that at the time they purchased White’s title they had no knowledge of the mortgage to the bank, and that Oliver Cooley, when he purchased the lot which the plaintiff now holds, not only had knowledge of that mortgage, but also of the prior conveyance of the other lot to White. These averments are not controverted by the plaintiff, and it is admitted that the deed from Strong to White contains the usual covenants of seisin and warranty against all incumbrances ; and that Strong has since become and now is insolvent.
On these facts these defendants contend that they are not liable to the plaintiff for contribution ; for as they would not be so liable if Strong had redeemed, it is insisted that they are not so liable to his assignees, who took an assignment with a full knowledge of all the facts. To be sure they would not have been liable to Strong if he had redeemed : nor to his heirs, if he had died and they had redeemed. In Harbert’s case, 3 Co. 11, it is laid down, that if one is seised of three acres under an incumbrance, and enfeoffs A of one acre, and B of another, and the third acre descends to the heir, who discharges the incumbrance, he shall not have contribution, “ for he sits,” as it is said, “ in the seat of his ancestor.” That the principle here laid down is well established law as to the rights of the heirs and purchasers of a mortgager, cannot be doubted. And Chancellor Kent lays down the same principle as to successive purchasers from a mortgager, of different parts of the mortgaged property.
In Gill v. Lyon, 1 Johns. Ch. R. 447, the defendant was a purchaser from the mortgager, of a part of the land mortgaged, and had paid the full value of the land, and took a deed in which the grantor covenanted that he was lawfully seised, and that the granted premises were free from all incumbrances. After this conveyance Gill the plaintiff bought the residue of the land mortgaged, at a sale on a judgment against the mortgager ; and it was held that Lyon was not bound to contribute [56]*56towards redeeming the mortgage, because the parties were not on an equal footing in equity. And in Clowes v. Dickenson, 5 Johns. Ch. R. 240, it is laid down as a general principle, that between purchasers in succession of different parts of the equity of redemption of lands mortgaged there is no contribution, as they do not stand in cequali jure. These, and the other cases cited by. the defendants’ counsel, fully maintain the general doctrine on which they rely, to show they are not liable to contribution. But this case is distinguishable from all the cases cited, by a material circumstance. It is admitted by the Partridges, in their answer to tne plaintiff’s amended bill, that when Strong conveyed to While he took back a mortgage to secure the payment of the purchase money, and that this mortgage was unpaid and undischarged at the time Strong conveyed to Oliver Cooley. They say they had understood a part was paid before the latter conveyance. But this does not appear to be the fact, and the fact is not material, except to show the proportion in which the defendants may be liable to contribute. At the time therefore when Oliver purchased, the legal estate was still in Strong, subject to the mortgage to the bank, which could only be defeated by White by payment of the purchase-money. And White was secure, as he could sue Strong on his covenants if Strong should sue him on his notes, and the judgments might be set off. Or if Strong should enter on the mortgaged premises for condition broken, he could attach his right, and in that manner secure himself. These circumstances considered, we think the knowledge of Oliver Cooley at the time of his purchase, of the mortgage to the bank and the conveyance to White, is not material, as Strong had the legal estate in both tracts, subject to the mortgage to the bank, and as White could not be injured by the sale to Oliver Cooley. Oliver Cooley and White had each the right to compel Strong to redeem the mortgage to the bank, or to pay the sum due thereon ; they therefore stood in cequali jure, or if there was any difference in their respective situations, that of White’s was the most favorable, for he might have secured himself against the mortgage to the bank, after Strong’s insolvency, and it does not appear that Oliver Cooley could-But at the time Clark took an assignment from the bank, the [57]*57situations of the respective owners of the two lots were in all respects equal, as they still are. Neither can hold his estate without redeeming both lots, and it would be manifestly against justice and equity that either party should gain an advantage by procuring an assignment of the mortgage, and thereby throw the whole of a common burden on the other party. The foundation of contribution is a principle of justice and equity, and when there is equal equity, and there is an incumbrance on land belonging to different parties, they ought each to contribute towards removing it.
We therefore entertain no doubt, taking into consideration the relative situation and rights of the parties, with all the circumstances of the case, that the two Partridges are bound to contribute ; and the only question is, whether the Court, in this suit, are authorized to decree a contribution peremptorily, and to issue execution against them for their ratable proportion. It has been denied that the Court has any such authority under Si. 1798, c. 77, or any other statute. But it is not necessary to decide upon that objection, as we think the course pursued in the case of Gibson v. Crehore, will furnish the plaintiff with reasonable security, and will make it for the interest of the Partridges to contribute voluntarily : or if they should refuse, and Eli Cooley should contribute, he would have his legal remedy against them on their covenants. We think therefore the plaintiff must pay the whole sum due on the mortgage in the first instance, and he will be entitled to a writ of possession against Eli Cooley, and will be entitled to take the rents and profits of the lot he holds until he shall be reimbursed to the amount of the ratable proportion due from Eli Cooley, or the Partridges, unless they should agree to contribute. If Clark had purchased the mortgage for the Partridges, and held it in trust for them, the form of the decree might be different, and the plaintiff might be let in to redeem on payment of his ratable proportion of the mortgage debt. But there was no declaration of trust in writing, and the administrator of Clark is entitled to receive the whole sum due on the mortgage. If that sum can be ascertained without a reference to a master, a final decree may be now entered.