Opinion by
Wickham, J.,
The plaintiff and four others, including the defendant, on February 10, 1887, gave their joint bond and mortgage to one Valentine Baker to secure the payment of $1,000, on December 5, 1889, with interest on said debt from December 5, 1886. In 1894 judgment was obtained on the mortgage against the plaintiff and three others of the mortgagors and the administrator of the fifth. The real estate mortgaged was then advertised for sale, on levari facias, and on April 5, 1894, the plaintiff, to prevent a sale and sacrifice of said real estate, paid the amount due on the execution. He now seeks, through this action, to compel the defendant to contribute his proportionate share of the money so paid.
The defendant demurs to the plaintiff’s statement of claim for the following reasons: “1. The said statement does not set forth any fact showing a cause of action in the plaintiff against the defendant. 2. There is no averment in the said statement that this defendant was the owner of, or in any wise interested in, [172]*172the land covered by said mortgage, or any part thereof, a.t the date of said payment by the plaintiff. 8. There was no averment that said payment was made in relief of this defendant, or of any property owned by him.”
The statement of claim makes the mortgage part of itself, by due reference thereto. The mortgage very fully recites the bond, and the plaintiff claims to recover, not merely because he paid the mortgage, but for the reason that he paid the debt, for which he and the defendant were jointly liable on both the bond and mortgage. The payment of the latter was ipso facto payment of the former. The plaintiff was therefore entitled to have the bond delivered up to him, and presumably received it. This suit might have been based on the liquidation of the bond alone, and the manner of its payment, namely, the satisfaction of the mortgage, would not need to have been mentioned at all, but might be reserved and used as evidence. The two instruments were security for the same debt, and the plaintiff, having paid one, necessarily paid the other. This is an inference of law resulting from the facts set out in the statement.
The defendant, however, wants us to treat the case as though the plaintiff were only claiming an equity of subrogation to the creditors’ rights under the mortgage. This is a mistaken view of the matter. The action, which is an ordinary one for contribution, is not founded directly on either the bond or mortgag'e, but on the payment which satisfied both. The plaintiff is considered as standing in the creditor’s place and entitled to the benefit of all his rights and securities. The statement substantially shows first, that the indebtedness was secured primarily by the bond given by all the mortgagors and whereon all were liable; second, that the mortgage was given as further security for the same debt; third, that the plaintiff to save himself from loss was forced to pay the whole amount secured by the mortgage, thus in effect paying the debt due from himself and his co-obligors on the bond, and lastly, that by reason of having so paid out his money he is entitled to contribution from the defendant. What more is necessary to evince a demand founded on law and justice ? The bond being overdue, had the plaintiff paid it directly and even without suit, his right to contribution, in the absence of facts set up by the affidavit of defense or plea, to relieve the defendant, would be undeniable. [173]*173What matters it that he satisfied, the bond indirectly by paying the mortgage after it was sued on ? In either case his act resulted in the payment of the defendant’s debt, as well as his own, and his right to reimbursement should follow, the payment of the debt being the broad foundation of that right.
From what has already been said it will appear that the reasons for demurrer are untenable. Instead of its being true that the statement “ does not set forth any facts showing a cause of action,” the facts are amply sufficient to sustain the judgment.
The defendant’s objection, which appears nowhere except in the argument, that no literal copy of the bond accompanies the plaintiff’s statement, should have been specially assigned as a ground of demurrer. The Act of May 25, 1887, P. L. 271, provides that the declaration in an action of assumpsit shall consist of a concise statement of the plaintiff’s demand, which shall be accompanied by copies of the notes, contracts, etc., upon which the claim is founded, and each of these requirements is imperative, if the defendant chooses to insist thereon. As Mr. Chief Justice Stebbett remarks in Acme Mfg. Co. v. Reed, 181 Pa. 382, “without the defendant’s consent,” the averments of the statement cannot be accepted as the legal equivalent of the “ copy ” or “ copies ” required by the act.
But if the statement taken as a whole shows a good cause of action, and the defendant instead of demurring specially or objecting in some other allowable way, to a formal defect, rests his defense exclusively on other matters, he cannot be heard in the appellate court to object to the judgment for such a defect. This old and familiar principle was not abrogated by the act of 1887 and it is as fully applicable to pleadings under the act as it was to pleadings at common law. It was applied in Newbold v. Pennock, 154 Pa. 591 and impliedly recognized in Acme Mfg. Co. v. Reed, supra, as appears by the above brief quotation from the opinion in that case. See also Applegate v. Cohn and Berger, 1 Pa. Superior Ct. 174. Any other rule would promote delays and unfair practices and be out of harmony with reason.
Of course, it is not to be expected that the defendant’s “ consent” shall be formally reduced to writing and filed. It may be inferred from what he does or fails to do. In Newbold v. Pennock, supra, taking defense on the merits alone was held to [174]*174be a waiver of the right to object, after judgment, to a statement that fell short of the requirements of the act of 1887. So in the present case, failure to object by demurrer, suggestion or affidavit of defense, to the absence of a copy of the bond, and resting the defense solely on other matters, is conclusive, at this stage of the proceedings, that the defendant waived his right to object. It would be otherwise if the statement showed no cause of action, were so defective^ as to be open to a general demurrer, or to furnish ground, after verdict, for a motion in arrest of judgment. “ A general demurrer lies only for defects of substance, a special demurrer only for defects of form, and adds to the terms of the general demurrer a specification of the particular ground of exception. Thus if a defective title be alleged, it is a fault in substance for which the party may demur generally, but if a title be defectively stated it is only a fault in form which must be specially assigned for cause of demurrer. And under the statute of 4 and 5 Anne, ch. 16, unless imperfections, omissions, defects and other matter of like nature be specially and particularly set down and shown for cause of demurrer, the court shall give judgment according to the .very right of the cause without regarding the said imperfections,” etc.: Saunders P. & E. p. 950 : Commonwealth v. The Cross Cut Railroad Co., 53 Pa. 62.
The substance of the bond fully appears in the mortgage, which by reference is made part of the statement, and we cannot say that the omission complained of is fatal, as the record stands.
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Opinion by
Wickham, J.,
The plaintiff and four others, including the defendant, on February 10, 1887, gave their joint bond and mortgage to one Valentine Baker to secure the payment of $1,000, on December 5, 1889, with interest on said debt from December 5, 1886. In 1894 judgment was obtained on the mortgage against the plaintiff and three others of the mortgagors and the administrator of the fifth. The real estate mortgaged was then advertised for sale, on levari facias, and on April 5, 1894, the plaintiff, to prevent a sale and sacrifice of said real estate, paid the amount due on the execution. He now seeks, through this action, to compel the defendant to contribute his proportionate share of the money so paid.
The defendant demurs to the plaintiff’s statement of claim for the following reasons: “1. The said statement does not set forth any fact showing a cause of action in the plaintiff against the defendant. 2. There is no averment in the said statement that this defendant was the owner of, or in any wise interested in, [172]*172the land covered by said mortgage, or any part thereof, a.t the date of said payment by the plaintiff. 8. There was no averment that said payment was made in relief of this defendant, or of any property owned by him.”
The statement of claim makes the mortgage part of itself, by due reference thereto. The mortgage very fully recites the bond, and the plaintiff claims to recover, not merely because he paid the mortgage, but for the reason that he paid the debt, for which he and the defendant were jointly liable on both the bond and mortgage. The payment of the latter was ipso facto payment of the former. The plaintiff was therefore entitled to have the bond delivered up to him, and presumably received it. This suit might have been based on the liquidation of the bond alone, and the manner of its payment, namely, the satisfaction of the mortgage, would not need to have been mentioned at all, but might be reserved and used as evidence. The two instruments were security for the same debt, and the plaintiff, having paid one, necessarily paid the other. This is an inference of law resulting from the facts set out in the statement.
The defendant, however, wants us to treat the case as though the plaintiff were only claiming an equity of subrogation to the creditors’ rights under the mortgage. This is a mistaken view of the matter. The action, which is an ordinary one for contribution, is not founded directly on either the bond or mortgag'e, but on the payment which satisfied both. The plaintiff is considered as standing in the creditor’s place and entitled to the benefit of all his rights and securities. The statement substantially shows first, that the indebtedness was secured primarily by the bond given by all the mortgagors and whereon all were liable; second, that the mortgage was given as further security for the same debt; third, that the plaintiff to save himself from loss was forced to pay the whole amount secured by the mortgage, thus in effect paying the debt due from himself and his co-obligors on the bond, and lastly, that by reason of having so paid out his money he is entitled to contribution from the defendant. What more is necessary to evince a demand founded on law and justice ? The bond being overdue, had the plaintiff paid it directly and even without suit, his right to contribution, in the absence of facts set up by the affidavit of defense or plea, to relieve the defendant, would be undeniable. [173]*173What matters it that he satisfied, the bond indirectly by paying the mortgage after it was sued on ? In either case his act resulted in the payment of the defendant’s debt, as well as his own, and his right to reimbursement should follow, the payment of the debt being the broad foundation of that right.
From what has already been said it will appear that the reasons for demurrer are untenable. Instead of its being true that the statement “ does not set forth any facts showing a cause of action,” the facts are amply sufficient to sustain the judgment.
The defendant’s objection, which appears nowhere except in the argument, that no literal copy of the bond accompanies the plaintiff’s statement, should have been specially assigned as a ground of demurrer. The Act of May 25, 1887, P. L. 271, provides that the declaration in an action of assumpsit shall consist of a concise statement of the plaintiff’s demand, which shall be accompanied by copies of the notes, contracts, etc., upon which the claim is founded, and each of these requirements is imperative, if the defendant chooses to insist thereon. As Mr. Chief Justice Stebbett remarks in Acme Mfg. Co. v. Reed, 181 Pa. 382, “without the defendant’s consent,” the averments of the statement cannot be accepted as the legal equivalent of the “ copy ” or “ copies ” required by the act.
But if the statement taken as a whole shows a good cause of action, and the defendant instead of demurring specially or objecting in some other allowable way, to a formal defect, rests his defense exclusively on other matters, he cannot be heard in the appellate court to object to the judgment for such a defect. This old and familiar principle was not abrogated by the act of 1887 and it is as fully applicable to pleadings under the act as it was to pleadings at common law. It was applied in Newbold v. Pennock, 154 Pa. 591 and impliedly recognized in Acme Mfg. Co. v. Reed, supra, as appears by the above brief quotation from the opinion in that case. See also Applegate v. Cohn and Berger, 1 Pa. Superior Ct. 174. Any other rule would promote delays and unfair practices and be out of harmony with reason.
Of course, it is not to be expected that the defendant’s “ consent” shall be formally reduced to writing and filed. It may be inferred from what he does or fails to do. In Newbold v. Pennock, supra, taking defense on the merits alone was held to [174]*174be a waiver of the right to object, after judgment, to a statement that fell short of the requirements of the act of 1887. So in the present case, failure to object by demurrer, suggestion or affidavit of defense, to the absence of a copy of the bond, and resting the defense solely on other matters, is conclusive, at this stage of the proceedings, that the defendant waived his right to object. It would be otherwise if the statement showed no cause of action, were so defective^ as to be open to a general demurrer, or to furnish ground, after verdict, for a motion in arrest of judgment. “ A general demurrer lies only for defects of substance, a special demurrer only for defects of form, and adds to the terms of the general demurrer a specification of the particular ground of exception. Thus if a defective title be alleged, it is a fault in substance for which the party may demur generally, but if a title be defectively stated it is only a fault in form which must be specially assigned for cause of demurrer. And under the statute of 4 and 5 Anne, ch. 16, unless imperfections, omissions, defects and other matter of like nature be specially and particularly set down and shown for cause of demurrer, the court shall give judgment according to the .very right of the cause without regarding the said imperfections,” etc.: Saunders P. & E. p. 950 : Commonwealth v. The Cross Cut Railroad Co., 53 Pa. 62.
The substance of the bond fully appears in the mortgage, which by reference is made part of the statement, and we cannot say that the omission complained of is fatal, as the record stands. What was intended for a general demurrer alleges, that the statement “ does not set forth anjr facts showing a cause of action in the plaintiff against the defendant.” The truth is that the statement, while it may fail to comply with one of the formal provisions of the act of 1887, and therefore perhaps was open to objection at the right time, alleges as said before, every material fact necessary to establish the defendant’s liability. It would be undoubtedly sufficient on motion in arrest of judgment, and it is good on a demurrer, which fails to specifically object to the omission now complained of in the argument, admitting that a copy of the bond is required at all, in an action of this kind.
The learned counsel for the defendant, in arguing that there should be no recovery, because the defendant did not ask the [175]*175plaintiff to pay the common creditor and that the plaintiff’s main motive in paying the money was to save himself from loss, overlook the principle on which the right to contribution rests. The plaintiff’s liability for the whole debt, and not the defendant’s wishes in the matter, created the right and the duty to pay it. If there were any circumstances of peculiar hardship to the plaintiff, resulting from the creditor’s election of remedy, as it is alleged in the statement there were, these would certainly not detract from the plaintiff’s equities. It illy becomes his indifferent co-obligor to set up as a defense the fact, that the plaintiff was forced to pay the debt of both, in order to save his, the plaintiff’s, real estate from being sacrificed at a judicial sale.
We are asked in behalf of the defendant to assume, because there is no express averment in the statement on the subject, that he had no interest in the real estate which he joined in mortgaging, and that the payment of the mortgage was not in his relief. The natural and reasonable presumption in a case like the present is that each mortgagor has an interest in the land, which continues until the contrary appears or is at least alleged. If he has none, why should he join in the conveyance ? We are also of the opinion that prima facie the payment of the mortgage debt by one of several mortgagors is for the benefit of all. These related presumptions are in accord with common sense, the well known business methods of mankind and the ordinary results of human action, and they should stand until facts are averred which render them inapplicable. If in the present case they were displaced by circumstances, the defendant could and should have set up such circumstances in an affidavit of defense. His choosing not to do so may be deemed as conclusive that they did not exist.
Seeing no error in the record, the judgment is affirmed.