
    Scribner against Hickok and others.
    On a bill filed by the mortgager, to redeem, against the administrators of the mortgagee 'in possession, and others claiming under him, the defendants were decreed to pay to the plaintiff a certain sum for the rents and profits of the land, after deducting the mortgage debt; and the decree being silent as to the proportions which each defendant was to pay, one of the defendants paid the whole sum to the plaintiff, who gave him liberty to make use of the decree, to reimburse himself the amount: held, that he could use the decree only for his protection and indemnity, so far as his co-defendants were bound to contribute.
    
      
      August 5th
    
    And the Court, on petition and motion of a co-defendant, directed the contribution to be enforced under the decree, so far only as the right was clearly ascertained.
    THE plaintiff, as mortgagor, filed a bill to redeem against James Hickok and Horatio Hickok, aministrators of Ezra Hickok, the mortgagee, deceased, and Daniel Hickok, Daniel Boardman, and Stephen Brayton.
    
    On the 22d July, 1812, the Master’s report, as to the amount of the rents and profits of the mortgaged premises, received since the mortgagee took possession, after deducting the debt of Ezra Hickok, the mortgagee, was confirmed, and the defendants, who were either administrators of the mortgagee, or assignees, under him, of the land, were decreed to pay to the plaintiff 4,287 dollars and 1 cent. On the 20th of October following, the defendant, Horatio Hickok, who was one of the administrators of the mortgagee, satisfied the plaintiff, paying him 4,050 dollars, and obtained the consent of the plaintiff’s solicitor to use the decree to reimburse himself. It appeared that H. Hickok paid the plaintiff to prevent an impending execution ; and he paid it out of his individual funds, though it appeared, by the affidavit of the defendant, J. Hickok, the other administrator, that he advanced about 1,000 dollars to H. Hickok for the purpose. An execution having been issued, at the instance of H. Hickok, against the defendant, D. Boardman, for the whole amount of the decree, and levied on his property, he obtained an order from Mr. Chancellor Lansing, on the 20th of April, 1813, staying the execution -until further order.
    A petition was now presented by H. Hickok, praying that the order of the 20th of April, 1813, might be vacated) and it appeared, from the documents and affidavits produced, at the hearing of the motion upon the petition, that Ezra Hickok, the mortgagee, took none of the rents and profits to himself, but had assigned his right and interest in the premises to the defendants, D. Hickok and D. Board-man, and that they and Stephen Brayton, who had pur-» chased under one oí them, had received all the rents and profits, in unequal proportions.
    It appeared that the defendant, H. Boardman, had received, at least, a moiety of the rents and profits.
    
      J. V. Henry, for H. Hickok, the petitioner.
    
      A. Van Vechten, contra, for the defendant, D. Boardman.
    
   The Chancellor

considered that the defendant, H. Hickok, was not entitled to be deemed a purchaser, for himself, of the decree, and to use it as if he stood in the character of a stranger to the parties, but as having satisfied it, as one of the defendants, on behalf of the estate of E. Hickok, deceased ; and was entitled' only to indemnity or contribution, as a co-defendant, from the other defendants. The defendant who had paid more than his due proportion, or who had paid the whole, when the same ought to be borne by the co-defendants, or some of them, was entitled to, stand in the place of the plaintiff, and to use the decree for his protection and indemnity, so far as it clearly and certainly appeared that the other defendants ought to contribute. (2 Vesey, 622. 1 Wightw. 2, 3. 6. 2 Maddock's Ch. Rep. 437. 11 Vesey, 22. 3 Merivale, 576. 1 Atk. 133. 2 Vern. 608.) Perhaps it would have been proper to have designated, in the original decree, the proportions of the sum decreed to the plaintiff, to be levied on the defendants respectively ; but as that was not done, the right of contribution was to be enforced, upon this motion, so far only as that right had been clearly ascertained.

The following order was entered : — “ That, inasmuch as the decree of the twenty-second of July, in the year one thousand eight hundred and twelve, directing the payment to the plaintiff of four thousand two hundred and eighty-seven dollars and one cent, with interest, from the fifteenth of January preceding, was directly and equally against all the said defendants, without discrimination, and the payment to the complainant of four thousand and fifty dollars, by the defendant II. II., in satisfaction of that decree, under the circumstances of the case, and the proofs produced, is to be considered, not as a purchase by him in his own right, but as a payment by him in trust, and in his representative character, as one of the administrators of Ezra Iliclcolc, deceased, for the benefit of that estate, and entitling him to contribution or indemnity, only in the character of a co-defendant, equally bound by the decree: And inasmuch, as it appears that the defendant, D. Boardman, was not bound, in equity to contribute to the said payment, but in a rateable proportion with such others of the co-defendants as were partakers, with him, of the rents and profits of the mortgaged premises; and that he is not to be deemed answerable to the said H. H. for the entire proportions of the said payment, which the other defendants, Daniel Ilickok and Stephen Drayton, or either of them, were, in equity, bound to contribute ; and it appearing upon this motion, that the said Boardman received, at least, a moiety of the said rents and profits, and is in equity bound to contribute a moiety of the payment so made by the said II. II., and it not appearing, with sufficient certainty, how much more, if any, he ought to contribute — It is thereupon ordered, that unless the defendant, Daniel Boardman, within sixty days, bring into Court, and deposit with the register, for the use of the defendant, II. H., two thousand and twenty-five dollars, with interest thereon, from the twentieth of October, one thousand eight hundred and twelve, that then the said motion be granted, so far as to allow the defendant, II. II., to levy and collect the said last mentioned sum, with the interest thereon, as aforesaid, and no more, from the said defendant; and it is further declared, that nothing in this order contained, shall be deemed to prejudice the right of the said H-JET., (if any he has,) to a suit in this Court, by bill, for any further or greater contribution from the said D. J3.”  