
    Charles M. Evarts, Resp’t, v. Caroline E. Woods et al., App’lts.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed June 28, 1889.)
    
    Partition—When share of one tenant in common charged with .PAYMENT OF LIEN.
    In an action in partition, and also to require the payment of two debts out of the land, one being a mortgage and the other a judgment, the tformer was given to obtain a loan for plaintiff, by his deceased mother, the common ancestor of the parties, upon his agreement that he would pay it. The plaintiff’s negligence was the basis of the judgment. Held, that although none of plaintiff’s co-heirs can compel the payment of the liens out of the land by action against plaintiff, the latter having invoked the aid of a court of equity, his share should be charged with the payment of the liens.
    Appeal from a judgment entered upon the report of a referee.
    , This is an action in equity for the partition of certain real estate owned by the parties to this action as tenants in common, which descended to them from their common ancestor, Jane Evarts.
    The plaintiff not only asks for partition or sale, of the premises, but demands that the respective interests of the ■parties be adjudicated, and that a certain mortgage for $3,000, held by the defendant Jenks, and a judgment for $329.01, in favor of defendant McArdle, be paid out of the common fund.
    The defendants allege that both the mortgage and judgment are liens which, in equity, the plaintiff is bound to •discharge, and that he has no right to demand a judgment of this court, that they be paid out of the common fund, and they demand that the share of the plaintiff be charged with the payment of these liens.
    
      One of the defendants is an infant and entitled to the special protection of the court.
    
      George Wilcox, for app’lts; Ira L. Bamberger, for resp’.
   Barnard, P. J.

The plaintiff, as between him and his-deceased mother, ought to pay the mortgage held by the-defendant Jenks. The mortgage was given to obtain a loan for the plaintiff, and upon his agreement with his. mother “that he would pay the principal of the said mortgage and the interest thereon.” The plaintiff has now applied to partition or sell the land covered by the mortgage, and to divide the proceeds between his brother and sisters. The plaintiff should pay his debt in this action so far as his-share in the land will do so. This is equity and justice, and there must be some controlling reason for an equal division of the proceeds, and thus to make all the heirs pay the-plaintiff’s debt. The only one assigned is that no individual brother or sister can assert a claim that plaintiff should pay his own debt. It is true that none of them can bring an action against the plaintiff to enforce the payment of this mortgage by plaintiff as he agreed to do. This is no reason why a court of equity should decide a sale of land at the plaintiff’s instance and divide the moneys unjustly.

The plaintiff, to obtain equity, must do equity. The probability that the administrator of his mother may sue the plaintiff to recover this sum to pay debts ought not to be considered. He makes the probability by his default, and the property of his brother and sisters should not be-applied to pay his debt because he has failed to pay it himself. The judgment also should be paid out of the plaintiff’s share. The plaintiff’s neglect was the basis of the judgment. The plaintiff unskiUfully made an excavation, in building a factory in August, 1882. The title to the lot then stood in the name of plaintiff’s mother. In October, 1882, the plaintiff took the title in his own name from her. If this Evarts merely held the title for the plaintiff, the plaintiff ought to pay the judgment as between him and his mother. If she is to be deemed the owner, a judgment against her for her son’s negligence creates a good ground of recovery by her against the plaintiff. Village of Port Jervis v. First National Bank of Port Jervis, 96 N.Y., 550; City of Rochester v. Montgomery, 72 id., 67.

The judgment should, therefore, be reversed and a new trial granted at spring term, with costs to abide event.

All concur.  