
    LOUIS J. WEEKS v. JESSE A. WEEKS.
    
    February 13, 1925.
    No. 24,418.
    Division of proceeds of sale on foreclosure of mortgage.
    1. Where land is sold under foreclosure of a mortgage, two or more parties being interested therein, the proceeds will be divided pro rata according to the interests of the parties as they appear, but one may be given priority by contract.
    When unpaid vendor is given priority over vendee in default.
    2. In such a case, an unpaid vendor has priority as against a defaulting vendee to the extent of the unpaid purchase price.
    *Headnote 1. See Mortgages, 27 Cyc. p. 1765.
    Headnote 2. See Mortgages, 27 Cyc. p. 1766.
    
      Action in the district court for Itasca county for an accounting. The case was tried before Stanton, J., wbo dismissed the action. From tbe judgment, plaintiff appealed.
    Affirmed.
    
      Howard W. Anderson, for appellant.
    
      J. W. Gardner and W. B. Taylor, for respondent.
    
      
       Reported in 202 N. W. 277.
    
   Stone, J.

Action for an accounting and other relief demanded by plaintiff in connection with transactions involving a quarter section of North Dakota land. After trial by tbe court and a decision denying him any relief, plaintiff appeals from tbe judgment.

Tbe parties are brothers. In 1917 defendant, tbe elder, sold tbe land to plaintiff “on contract,” subject to a mortgage for $2,500. In 1919 plaintiff resold tbe premises and prevailed upon defendant to convey to Poppe, tbe purchaser, subject to tbe old mortgage of $2,500 and to join him in accepting Poppe’s notes, in tbe sum of $3,300, in part payment of tbe new purchase price. These notes were so accepted and secured by Poppe’s mortgaging tbe land to defendant subject to tbe prior mortgage. At this time there remained due defendant from plaintiff, on account of tbe latter’s original purchase, $1,800.

Here there is a divergence in the evidence, but it prevents successful attack now upon tbe finding that tbe brothers agreed that tbe notes of Poppe, aggregating $1,800, “would be accepted and retained by defendant as and for tbe balance of tbe purchase price of said premises, and that tbe two other notes would be forthwith transferred by defendant to plaintiff; and it was then tbe intention of plaintiff and defendant that tbe said $1,800 note, representing tbe remainder of tbe purchase price of said premises, would constitute and be a first lien under said mortgage.”

Tbe premises were conveyed to Poppe by defendant wbo, in 1923, because of Poppe’s default under tbe second mortgage, sold tbe premises under foreclosure. Defendant bid in tbe land for $2,536.91, considerably less than tbe amount then due from Poppe but tbe exact sum then due him under bis agreement with plaintiff, $1,800 (tbe unpaid portion of tbe original purchase price agreed to be paid by plaintiff), accrued interest thereon, interest paid by defendant on the first mortgage in order to protect his own and the costs of foreclosure. The foreclosure was by action and defendant now has a judgment against Poppe for the deficiency of the mortgage debt, including its trimmings of interest, taxes and costs. Defendant owns the land, no redemption having been made. Plaintiff’s effort has been, by this action, to compel defendant to account for and pay over to him his supposed proportionate share of the amount nominally realized at the foreclosure sale. Because that purpose was thwarted by the judgment, the latter is brought here for review. At the trial defendant formally offered to assign to plaintiff the deficiency judgment against Poppe and to convey the land upon payment of the amount of his equity, $1,800 plus admitted interests, taxes and disbursements.

We approve of the decision below and for the reasons assigned by the learned trial judge. The first is the rule that where several notes, maturing at different dates but secured by one mortgage, come into the hands of different holders and the proceeds of a foreclosure are insufficient to pay all in full, division will be made pro rata, unless there is a contract requiring a different distribution. If there is such a contract it will control “The order in which several notes or instalments, secured by one mortgage, shall be paid out of the proceeds of the security, is entirely a matter of contract.” Wilson v. Eigenbrodt, 30 Minn. 4, 13 N. W. 907; Hohag v. Northland Pine Co. 147 Minn. 38, 179 N. W. 485.

The second stated basis for the decision is that the “$1,800 note retained by defendant represented the purchase money of the land. It was therefore clothed with all the equities” existing in favor of an unpaid vendor. No vendor’s lien, in the accurate sense, is involved. It is simply a case of a vendor’s right to keep enough of the proceeds of land to pay what was due him on account of the purchase price which his adversary was owing. Rosendahl v. Mud-baden S. S. Co. 144 Minn. 138, 175 N. W. 609. Defendant, in tendering conveyance of the land and assignment of the Poppe judgment upon condition of the payment to him of his just due, offered to do equity. Plaintiff is not in so favorable a light. The judgment is right and must be affirmed.

So ordered.  