CHARLES B. WALKER, APPELLANT,

v.

JAMES D. SARVEN, APPELLEE

Carter, J.:

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 equitably bound to discharge one-half of the joint debt, and if either voluntarily or under compulsion of law paid more than one-half, he was entitled to contribution from the other for the excess. Wiley J. Embry purchased the undivided interest of' George N. Sarven, with knowledge that the whole property was charged with the grantor’s lien for the entire purchase price due by George N. Sarven and Charles B. Walker, and subsequently sold the same interest subject to the same incumbrance to Willie B. Mayes, a purchaser with like notice. By this purchase Willie B. Mayes became a tenant in common with Charles B. Walker of an estate charged with the prior incumbrance. While Mrs. Mayes may not have become personally bound for the debt due to James D. Sarven, her interest in the land was in her hands subject to the whole of that debt so far as James D. Sarven was concerned, though as between her and Charles B. Walker her co-tenant the respective interests of each were equitably bound for one- • half of the purchase money debt. In proceedings to foreclose this prior incumbrance upon the joint estate, neither co-tenant was entitled to have the decree charge the other’s interest with the entire debt, nor could either insist that the decree charge the interest of each with one-half or any other particular part of the debt, for the simple reason that the whole estate was equally liable, so far as James D. Sarven was concerned for the entire debt, and the decree should, therefore, have directed the sale of so much of the entire estate as would be sufficient to satisfy the debt and costs. Frost v. Frost, 3 Sandf. Chy. 188; Schoenewald v. Dieden, 8 Ill. App. 389; Perre v. Castro, 14 Cal. 519, S. C. 76 Am. Dec. 444; Hubbard v. Ascutney Mill Dam Co., 20 Vt. 402, S. C. 50 Am. Dec. 41; Southworth v. Parker, 41 Mich. 198, 1 N.

W. Rep.

944. If either party had paid more than his just share of the joint debt he could have maintained a suit for contribution against his co-tenant, and enforced his right to contribution as against his co-tenant’s interest in the land. Gee v. Gee, 2 Sneed (Tenn.), 395; Furman v. McMillian, 2 Lea (Tenn.), 121; Newbold v. Smart, 67 Ala.

326. It maybe questioned whether under any circumstances a suit to foreclose the joint lien can be converted into-a proceeding for settling the equities between tenants in common growing out of their right to contribution, and for securing an adjustment of these rights by moulding the decree of foreclosure so as to-protect them. These are matters of no concern to the lien holder, and it would seem unjust to require him to await the result of litigation between co-defendants, in which he is not interested, before obtaining the relief to which his lien entitles him, regardless of the result of the litigation between the co-defendants. Such equities certainly can not be adjusted in the absence of proper allegations in the bill of foreclosure putting in issue the question of contribution, or a cross-bill by the defendant claiming such equities to which the defendant against whom they are claimed is a party. Inglehart v. Crane, 42 Ill.

261. In this case no cross-bill was filed, the bill did not put in issue any question of contribution between the co-defendants, nor did the answer of any of the defendants claim contribution nor insist that any particular interest in the joint property be first subjected to the appellee’s debt, nor state any facts to justify any such decree. The answer of Mrs. Mayes did not even show that she or her predecessors in interest had paid one-half of the original debt with interest, but, on the contrary, the payments so made aggregated less than one-half of the entire debt. The decree, therefore, charged Walker’s interest not only with his one-half of the joint debt, but with-a portion of the other half which, as between him and Mrs. Mayes was equitably chargable upon her half interest in the land exclusively.

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 under previous decisions of this court (Garvin v. Watkins, 29 Fla. 151, 10 South. Rep. 818), then the appellant will be left to his remedies for restitution. Upon remand of the cause the Circuit Court may upon proper proceedings make such orders as to restitution and to subject Mrs. Mayes’ interest in the land to payment of its just proportion of the purchase money debt as may be proper, without prejudice to the right of appellant or Mrs. Mayes to maintain any appropriate proceedings against the other to enforce contribution, or any other legal or equitable rights as between themselves.

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.