The Chancellor.
The controversy resolves itself into these two questions:
1st. Whether Chéesebrough and others are bound to contribute towards the payment of the mortgage ?
2dly'. If they are, then what is to be the rule. of contribution ?
1. The weight of testimony is decisive in proof of the agreement and understanding of all the parties to the bond and mortgages, that the payment of the 1,902 dollars and 78 cents, for which the receipt was given by Bacon, and the certificate of discharge by Marvin, was to be applied to the discharge of the second, and not of the first, instalment. This appears from the depositions of Bacon, Cook, and G. Van Schoonhoven, and from the certificate itself. I see no room to doubt of the intention of the parties, or of the validity of the arrangement. It was one which they were competent to make, and it was evidently made in good faith, and for their mutual convenience, without any intention injurious to others. The first mortgage was, therefore, absolutely discharged, and the second mortgage remained binding as a security for the first instalment; and it cannot now be questioned, or denied, to be a subsisting encumbrance, unless the purchaser, under the judgment, can show some equitable right arising out of the circumstances of the case, to be protected from its operation.
I admit, as a principle of equity, that if a creditor has a lien on two different parcels of land, and another creditor has a lien of a younger date on one of those pareéis only, and the prior creditor elects to take his whole demand out of the land on which the junior creditor has a lien, the latter will be entitled, either to have the prior creditor thrown [413]*413upon the other fund, or to have the prior lien assigned to him, and to receive all the aid it can afford him. This is a rule founded in natural justice, and I believe it is recognised in every cultivated system of jurisprudence. In the English law, it is an ordinary case, that if a party has two funds, he shall not, by his election, disappoint another who has one fund only, but the latter shall stand in the place of the former, or compel the former to resort to that fund which can be affected by him only/ ' (Sagitary v. Hyde, 1 Vern. 455. Mills v. Eden, 10 Mod. 488. Attorney General v. Tyndall, Amb. 614. Aldrich v. Cooper, 8 Ves. 388. 391—5. Trimmer v. Bayne, 9 Ves. 209.) The party liable to be affected by this election, is usually protected by means of substitution. Thus, for instance, if the creditor to a bond exacts his whole demand of one of the sureties, that surety is entitled to be substituted in his place, and to a cession of his rights and securities as if he was a purchaser, either against the principal debtor or the co-sureties. This doctrine of substitution, which is familiar to the civil law, (Dig. 46. 1. 17. and 36. Voet, h. t. s. 27, 29. 30.,) and the law of those countries in which that system essentially prevails, (Pothier's Traite des Oblig. n. 275. 280. 427. 519, 520. 522. Kaims’ Equity, vol. 1. 122. 124. Hub. Prælec. Inst. lib. 3. tit. 21. n. 8.,) is equally well known in the English chancery. In the case, ex parte Crisp, (l Atk. 133.,) Lord Eardmcke said, that where the surety paid off a debt, he was entitled to have, from the creditor, an assignment of the security, to enable him to obtain satisfaction for what he had paid beyond his proportion, and in Morgan v. Seymour, (1 Ch. Rep. 64.,) the court decreed that the creditor should assign over his bond to the two sureties, to enable them to help themselves against the principal debtor. To apply, then, the general principle to the present case, if the first mortgage had not been discharged, and the mortgagee had chosen to enforce the payment of the whole first instalment,. from the lands covered [414]*414by the second mortgage, to the loss, perhaps, of the lien of the judgment creditor by the consumption of the subject, that creditor, and, probably, the purchaser under the judgment, would have- been entitled, either to have turned him ' from the path he had taken, or to the aid of the first mortgage, to recover a proportional indemnity from the other lands covered by that mortgage. But, in this case, the first mortgage is cancelled, and no such recourse can be had ; and the question which arises is, whether the second mortgage can, in such case, be enforced ? It appears from some of the authorities to which I have referred, to be well settled, that if the creditor has put it out of his power to make the assignment, he is, in many cases, to be precluded from so much of his demand as the surety, or younger • creditor, might have procured, if the cession could have been made. Repelliiur exceptione cedendarum actionum. And if the judgment creditor, in this case, had given notice to the owner of the first mortgage, before the arrangement and discharge took place, of the equity which he claimed and expected, I might, probably, have been inclined to have stayed, to a certain extent, the operation of the second mortgage. But there is no evidence, or even ground for presumption, that either Marvin or Millard, the owners of the mortgages, knew of the existence of the judgment when the arrangement was made and carried into effect. They were not bound to search for the judgment, and the record was no constructive notice to them ; and as this rule of substitution rests on the basis of mere equity and benevolence, the creditor who has thus disabled himself from making it, is not to be injured thereby, provided he acted without knowledge of the other’s rights, and with good faith and just intention, which is all that equity in such case requires. (Pothier’s Traite des Oblig. No. 520.) “ The other debtors and sureties,” to adopt the observations of Pothier, 61 might, as well as the creditor, have taken care of the right of hypothecation which he has lost: they might summon [415]*415him to interrupt, at their risk, the third purchasers, orto oppose the decrees. It is only in the case in which they may have put the creditor in default, that they may complain that he has lost his hypothecation.”
Nor have Cheesehrough and others any peculiar on their part, to entitle them to set up the discharge of the first mortgage as an equitable bar to contribution. They came in as purchasers at the sheriff’s sale long after the discharge had taken place, and with notice of that fact, and of the existence of the second mortgage. They were, .accordingly, duly apprized of the condition of the subject which they purchased, and they had even taken the advice of council, whether the second mortgage was a valid and subsisting encumbrance. And, before the commencement of their suit, they had admitted its validity by offering to contribute to its discharge, and actually tendering in money what they deemed their just proportion. Under all these circumstances, they have no equity as against the second mortgage; and I am of opinion, .on every view of the point, that the mortgage is not discharged, and that the owner of it is entitled to have it satisfied out of the lots which it originally covered.
2.
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The Chancellor.
The controversy resolves itself into these two questions:
1st. Whether Chéesebrough and others are bound to contribute towards the payment of the mortgage ?
2dly'. If they are, then what is to be the rule. of contribution ?
1. The weight of testimony is decisive in proof of the agreement and understanding of all the parties to the bond and mortgages, that the payment of the 1,902 dollars and 78 cents, for which the receipt was given by Bacon, and the certificate of discharge by Marvin, was to be applied to the discharge of the second, and not of the first, instalment. This appears from the depositions of Bacon, Cook, and G. Van Schoonhoven, and from the certificate itself. I see no room to doubt of the intention of the parties, or of the validity of the arrangement. It was one which they were competent to make, and it was evidently made in good faith, and for their mutual convenience, without any intention injurious to others. The first mortgage was, therefore, absolutely discharged, and the second mortgage remained binding as a security for the first instalment; and it cannot now be questioned, or denied, to be a subsisting encumbrance, unless the purchaser, under the judgment, can show some equitable right arising out of the circumstances of the case, to be protected from its operation.
I admit, as a principle of equity, that if a creditor has a lien on two different parcels of land, and another creditor has a lien of a younger date on one of those pareéis only, and the prior creditor elects to take his whole demand out of the land on which the junior creditor has a lien, the latter will be entitled, either to have the prior creditor thrown [413]*413upon the other fund, or to have the prior lien assigned to him, and to receive all the aid it can afford him. This is a rule founded in natural justice, and I believe it is recognised in every cultivated system of jurisprudence. In the English law, it is an ordinary case, that if a party has two funds, he shall not, by his election, disappoint another who has one fund only, but the latter shall stand in the place of the former, or compel the former to resort to that fund which can be affected by him only/ ' (Sagitary v. Hyde, 1 Vern. 455. Mills v. Eden, 10 Mod. 488. Attorney General v. Tyndall, Amb. 614. Aldrich v. Cooper, 8 Ves. 388. 391—5. Trimmer v. Bayne, 9 Ves. 209.) The party liable to be affected by this election, is usually protected by means of substitution. Thus, for instance, if the creditor to a bond exacts his whole demand of one of the sureties, that surety is entitled to be substituted in his place, and to a cession of his rights and securities as if he was a purchaser, either against the principal debtor or the co-sureties. This doctrine of substitution, which is familiar to the civil law, (Dig. 46. 1. 17. and 36. Voet, h. t. s. 27, 29. 30.,) and the law of those countries in which that system essentially prevails, (Pothier's Traite des Oblig. n. 275. 280. 427. 519, 520. 522. Kaims’ Equity, vol. 1. 122. 124. Hub. Prælec. Inst. lib. 3. tit. 21. n. 8.,) is equally well known in the English chancery. In the case, ex parte Crisp, (l Atk. 133.,) Lord Eardmcke said, that where the surety paid off a debt, he was entitled to have, from the creditor, an assignment of the security, to enable him to obtain satisfaction for what he had paid beyond his proportion, and in Morgan v. Seymour, (1 Ch. Rep. 64.,) the court decreed that the creditor should assign over his bond to the two sureties, to enable them to help themselves against the principal debtor. To apply, then, the general principle to the present case, if the first mortgage had not been discharged, and the mortgagee had chosen to enforce the payment of the whole first instalment,. from the lands covered [414]*414by the second mortgage, to the loss, perhaps, of the lien of the judgment creditor by the consumption of the subject, that creditor, and, probably, the purchaser under the judgment, would have- been entitled, either to have turned him ' from the path he had taken, or to the aid of the first mortgage, to recover a proportional indemnity from the other lands covered by that mortgage. But, in this case, the first mortgage is cancelled, and no such recourse can be had ; and the question which arises is, whether the second mortgage can, in such case, be enforced ? It appears from some of the authorities to which I have referred, to be well settled, that if the creditor has put it out of his power to make the assignment, he is, in many cases, to be precluded from so much of his demand as the surety, or younger • creditor, might have procured, if the cession could have been made. Repelliiur exceptione cedendarum actionum. And if the judgment creditor, in this case, had given notice to the owner of the first mortgage, before the arrangement and discharge took place, of the equity which he claimed and expected, I might, probably, have been inclined to have stayed, to a certain extent, the operation of the second mortgage. But there is no evidence, or even ground for presumption, that either Marvin or Millard, the owners of the mortgages, knew of the existence of the judgment when the arrangement was made and carried into effect. They were not bound to search for the judgment, and the record was no constructive notice to them ; and as this rule of substitution rests on the basis of mere equity and benevolence, the creditor who has thus disabled himself from making it, is not to be injured thereby, provided he acted without knowledge of the other’s rights, and with good faith and just intention, which is all that equity in such case requires. (Pothier’s Traite des Oblig. No. 520.) “ The other debtors and sureties,” to adopt the observations of Pothier, 61 might, as well as the creditor, have taken care of the right of hypothecation which he has lost: they might summon [415]*415him to interrupt, at their risk, the third purchasers, orto oppose the decrees. It is only in the case in which they may have put the creditor in default, that they may complain that he has lost his hypothecation.”
Nor have Cheesehrough and others any peculiar on their part, to entitle them to set up the discharge of the first mortgage as an equitable bar to contribution. They came in as purchasers at the sheriff’s sale long after the discharge had taken place, and with notice of that fact, and of the existence of the second mortgage. They were, .accordingly, duly apprized of the condition of the subject which they purchased, and they had even taken the advice of council, whether the second mortgage was a valid and subsisting encumbrance. And, before the commencement of their suit, they had admitted its validity by offering to contribute to its discharge, and actually tendering in money what they deemed their just proportion. Under all these circumstances, they have no equity as against the second mortgage; and I am of opinion, .on every view of the point, that the mortgage is not discharged, and that the owner of it is entitled to have it satisfied out of the lots which it originally covered.
2. The rule of contribution between the parties, as owners of the different lots, must be the actual relative value of the lots, and this value is to be ascertained by the testimony of witnesses, in preference to estimating it by the price at which they were respectively purchased at the sheriff’s sale. Such sales are by no means a sure and certain test of value; and I see no good reason why we should depart from the better standard, and adopt this precarious one, which is liable to constant variation, and must depend, in a great measure, upon contingencies. The object of the principle of contribution is equality in the support of a common burden, and the law upon this point, as Lord Coke observed in Sir Wm, HarlerPs case, is “ grounded upon great equityand equity has a regard to the true value, and not one depending upon [416]*416contingencyand speculation. The rumour prevailing at the sale, that the lots might be affected by some voluntary conveyances of the original mortgagor, has been urged as a reason for taking, in this instance, the auction price ; I do not perceive the force of the argument. The rumour, it is to be presumed, affected, in equal proportion, the price of all the lots, and leaves the general rule just as applicable as before. I shall, accordingly, as the best evidence of value, adopt the relative valuations made by the witnesses, J. Van Schoonhoven and Mandeville, and which is as follows, viz:
Lot No. 133 $700
134 2,500
135 300
138 550
139 400
140 300
A reference must, therefore, be made to a master, to compute the sum due from the plaintiffs, Cheesebrough and, others, as purchasers of lots No. 134. and 139., on this ratio of contribution towards satisfaction of the principal and interest due on the first. instalment of the bond, and also the costs of advertising under the power contained in the said mortgage. The question of costs, in these suits, is reserved until the coming in of that report.
Decree accordingly.