Clark v. Austin

— Action to foreclose a mortgage. The defendants Austin, E. K. Clarke, and Bruce Oavitt were jointly liable to the plaintiffs for the mortgage debt, but as between each other, Austin was bound to pay only one half, Clarke one third, and Oavitt one sixth. Before judgment, Clarke paid his portion, — one third of the debt, viz., $4,065,—and a decree, of foreclosure passed for the unpaid portion of the debt, ordering a sale of the mortgaged premises, and that a joint judgment be docketed against Austin, Clarke, and Oavitt for any deficiency of proceeds of sale to pay the debt. The sheriff sold the mortgaged property and returned a deficiency of $7,913, for which a judgment was docketed as per order of the court. It appears that on May 12, 1891, Clarke paid $4,025.60 of this judgment, in addition to his payment of one third of the whole debt before judgment, and, also, that full satisfaction of the judgment was entered on the same day, but it does not appear when or by whom the balance of the judgment was paid.

Clarke claimed the benefit of the judgment to enforce contribution or repayment from Austin to him of the full sum — $4,025.60 — paid by him on the judgment, under section 709…