trial court in detail. Some 18 days were occupied in the trial of this case. The court saw the witnesses and heard the testimony, held the matter under advisement for several months, and we are not disposed to interfere with its finding. Much careful and patient consideration was evidently given the facts by the court, and the conclusion reached is fully justified by the evidence. Upon an examination of the whole record, we reach the same conclusion. For the reasons pointed out, the judgment of the lower court is affirmed. Affirmed. their mortgages before the execution of the bank mortgage, contradicted by testimony of the record of the bank mortgage, was not, in view of cashier that such notice was after execution and the mortgagor's insolvency, etc., proof of actual notice to the bank, prior to execution and record of its mortgage, of that satisfactory character which should obtain in such cases. Preston and Ladd, JJ., dissenting. Appeal from District Court, Monroe County; Seneca Cornell, Judge. Action in equity to foreclose mortgages and to establish liens and the priority thereof. There was a decree for plaintiffs, foreclosing the mortgages and determining the priority of liens and the rights of the parties. The GAYNOR, C. J., and WEAVER and PRES- defendant cross-petitioner, People's Savings TON, JJ., concur. Bank, appeals from the finding of the trial court that the lien of plaintiffs' mortgages was prior to that of said appellant. Mary E. Watson, a defendant and cross-petitioner, appeals from the findings of the trial court, which were against her. A more detailed statement as to the issues and facts appear RELIEVING in the opinion. Judgment (159 N. W. 761) PROPERTY FROM MORTGAGE LIEN-CONTRIBU- modified and affirmed on rehearing. CLARK BROS. et al. v. WATSON et al. (No. 30738.) (Supreme Court of Iowa. June 26, 1917.) 1. TENANCY IN COMMON 30 TION. A tenant in common, relieving the common J. C. Mitchell, of Ottumwa, and N. E. property from a mortgage lien for the benefit Kendall, of Albia, for appellant Mary E. of all the tenants in common, is entitled to contribution from cotenants out of their interest in the common property, but it would seem there can be no right to contribution until payment by the one claiming. [Ed. Note.-For other cases, see Tenancy in Common, Cent. Dig. §§ 95, 96, 98, 99.] 2. TENANCY IN COMMON COTENANT'S INTEREST. 8-PURCHASE OF Watson. F. D. Everett and J. C. Mabry, EVANS, J. There are many parties defendant and a large number of different claims and conflicting interests, so that the record is somewhat complicated. However, most of the parties seem satisfied with the finding of the trial court, and, as before indicated, but two appealed. 1. The points in the case most seriously argued, and perhaps the more important ones, are the points raised by the appellant Mary E. Watson in her controversy with plaintiff and some of the other parties to the action. As to her contention the pleadings are volu [Ed. Note.-For other cases, see Tenancy in Common, Cent. Dig. §§ 133, 134, 136, 137.] 4. SUBROGATION 7(1)-RIGHT OF SURETY-minous. TENANTS IN COMMON-STATUTES. Plaintiffs filed their petition for foreclosure, and later a substituted petition was filed, and by it and amendments thereto A. C. Watson, People's Savings Bank, George L. Robb, who holds a mortgage on the prop Where sisters, tenants in common of land, executed a mortgage thereon, their brother receiving the proceeds of the loan, and, on the death of one sister, the brother inherited, and executed other mortgages on the land, the surviving sister, in an action to foreclose the mort- erty, some mechanic's lienholders and judggages and establish liens and priorities, could ment creditors of A. C. Watson, including not, under Code, §§ 3779, 3966, 3967, be sub- Robb Bros., who hold a judgment against rogated to the rights of her mortgagee, to the prejudice of the brother's subsequent mortgagees, who became such without notice of the equities in her favor. [Ed. Note.-For other cases, see Subrogation, Cent. Dig. § 17.] 5. MORTGAGES -EVIDENCE. 186(5)-PRIORITIES-NOTICE A. C. Watson, and appellant Mary E. Watson were made defendants. Plaintiffs prayed as against Mary E. Watson that the money due on the Robb mortgage later referred to should be made from ber undivided twothirds of the 133% acres which is referred Where plaintiffs' prior mortgages, executed to in the record as the "irregular tract," and in 1901 and 1903, respectively, were not record- sometimes as the "home farm," and the ed until shortly after discovery of a bank's mortsame relief was prayed by the People's gage on the land, executed and recorded in July, 1905, testimony of both the two plaintiffs that Savings Bank as against her by cross-petithey notified the bank cashier of the priority of tion. Answering these cross-petitions, Mary gage one of the sisters, Rebecca, died leaving to inherit her property her sister Mary E., brother, A. C., so that on Rebecca's death Mary E. became the owner of an undivided two-thirds of the irregular tract. Soon afterwards A. C. obtained the other sister's onesixth interest, and thereby became vested with the undivided one-third. The title has so remained ever since; Mary E. owning an undivided two-thirds and her brother, A. C., the owner of an undivided one-third. Robb was also interested in a judgment against Mary E. and A. C. Watson which was a lien on lands owned by them. The date of this judgment is March 6, 1906. E. Watson set out the facts in relation to the Robb mortgage, which will be more fully stated later, and by way of cross-petition the appellant, and another sister, and her against Clark Bros., the People's Savings Bank, and George L. Robb, she prayed that her cotenants' undivided one-third of the irregular tract be first sold in satisfaction of the Robb mortgage, and that her undivided two-thirds thereof be sold only to satisfy any deficiency remaining on said mortgage after the application thereon of the proceeds of the sale of her cotenants' undivided one-third interest, and she also prayed for general equitable relief. It will be noted here that Mary E. Watson, by her pleadings asked that the one-third interest be first exhausted, and did not specifically ask for contribution or subrogation. The questions in regard to contribution and subrogation are argued by her, and it is claimed that she has stated the facts in regard to the matter of her executing the Robb mortgage as an accommodation for her brother, defendant A. C. Watson, and that she is entitled to raise such questions under her plea for general equitable relief. Plaintiff and the People's Savings Bank filed replies to the answer and crosspleadings of Mary E. Watson, denying the facts she had alleged, and claiming that they were incumbrancers for a valuable consideration without notice. About the year 1882, this appellant and her sister, Rebecca Watson, both maiden ladies, became by inheritance from their deceased parents the owners of the irregular tract of land before referred to, and at once entered into the possession and occupancy thereof; each owned one-half. In 1885 the two sisters, who were free from debt and not engaged in any business, negotiated a loan on said real estate. When this loan matured in 1890 a new loan was obtained for an increased amount, and the first paid off. When the second loan matured in 1895 they obtained the money to discharge it by executing to the Equitable Life Insurance Company a mortgage for $2,000. The mortgage was extended from time to time, and on May 11, 1911, it was assigned to George L. Robb, and is the mortgage involved in this action, and is referred to as the Robb mortgage. Robb was also interested in a judgment against A. C. Watson and appellant Mary E. WatThis will be referred to later. After the execution of the Robb mortgage before referred to it is alleged, and defendants A. C. Watson and Mary E. Watson so testified, and the trial court so found, that the money procured from these loans was solely as an accommodation to the brother, A. C. Watson, upon his promise and agreement to pay the same and have the mortgage canceled and hold his sisters harmless, and that the money was turned over to him and used by him for his own benefit; no part of it was used by the sisters or for their benefit. About a year after the execution of this Robb mort son. In addition to the two mortgages before referred to, given by A. C. Watson to plaintiffs, he also executed to them another mortgage covering the irregular tract, and which was dated February 13, 1906. Plaintiff also became the owner by assignment of another mortgage executed by C. A. Watson dated January 8, 1908, covering the irregular tract, and another mortgage covering the same tract dated February 13, 1906. These mortgages were all foreclosed by the decree in this case. The real question in the case is whether the Robb mortgage should be satisfied out of the undivided one-third of the irregular tract owned by A. C. Watson, or whether it should be satisfied in whole or in part out of the undivided two-thirds interest owned by Mary E. Watson. The theory of appellant Mary E. Watson was, and as she pleads it is, that the one-third interest should be first exhausted because she was only a surety for her brother in the transaction in regard to the Robb mortgage, and that her two-thirds interest is liable only for any deficiency and claims that the decree should have provided that she be subrogated to the mortgagee's rights for any money she had paid or might be required to pay as such surety, and claims also, in argument, that because, as cotenant, she has now paid off two-thirds of the amount de creed herein to be due on the Robb mortgage, she is entitled to contribution. It should have been stated before in regard to this matter that it appears that since the decree was rendered an execution was issued and her two-thirds interest levied upon, and that thereafter she paid to the sheriff, under protest, the sum of $1,629.46. The trial court stated in deciding the case that appellant Mary E. Watson, because the Robb mortgage was a mere accommodation by appellant Mary E. and her sister for the brother, A. C. Watson, would be entitled to the relief she asks for in some form but for the fact that other mortgages had been given by A. C. Watson on the undivided one-third interest to plaintiffs and others, but found as a fact that the parties holding such mortgages on the one-third interest had no notice of the secret arrangement between A. C. Watson and the sisters that the Robb mortgage was her property be charged with the payment of all an accommodation, and that therefore appellant Mary E. Watson having a lien of which mortgagees had no notice, and the mortgagees having a lien by reason of their mortgages, it became a question of priority as be tween these two lienholders. As we understand it from the arguments of plaintiff and the appellant bank, they make no serious objection to appellant Mary E. Watson being subrogated, provided it may be done without prejudice to their claims. Their contention is that because they had no notice of the private agreement between A. C. Watson and his sisters, their claims are still prior, while appellant Mary E. contends that her claim should be prior regardless of the question of notice. Under the record we hold that Mary [1] 2. It is undoubtedly true, as contended E. Watson may be subrogated to the rights by this appellant, that a tenant in common, of Robb under his mortgage for the amount relieving the common property from a mortof money paid by her, but not to the preju-gage lien for the benefit of all the tenants dice of plaintiffs or the People's Savings in common, is entitled to contribution from Bank. These matters will be taken up in their order. The trial court by its decree found and decreed that the Robb mortgage was the prior and paramount lien on the irregular tract; that two of the Clark mortgages, the one dated March 1, 1901, and the other March 31, 1903, were liens on A. C. Watson's undivided one-third of said irregular tract, prior and superior to the liens of any of the defendants except that of the said Robb mortgage, but that two-thirds of the amount due on the Robb mortgage, with a like proportion of costs, should be made by a separate sale of Mary E. Watson's undivided two-thirds of the said tract, and that whatever should remain of the proceeds of said sale after the payment therefrom of said two-thirds should be applied to the payment of the balance of the Robb judgment; that the remaining onethird due on the Robb mortgage, with a proportionate share of costs, should be made by a separate sale of A. C. Watson's undivided one-third of said tract, and that whatever should remain of the proceeds of such sale after the payment therefrom of the one-third due on the Robb mortgage should be applied to the payment of the amounts due on the two Clark mortgages before referred to and the mortgage held by the bank. Other provisions of the decree in regard to other lienholders will not be referred to because, as we understand it, the finding of the trial court and the decree as to other lienholders are not material to the determination of the points now before the court. Appellant argues the question as to marshaling of assets, and objects to that being done, but the trial court in an opinion filed said: "I am of the opinion that the doctrine of marshaling securities cannot be invoked against the defendant Mary Watson in this case by the creditors of A. C. Watson, because her property, sought to be appropriated to the payment of this Robb mortgage, does not belong to the common debtor of these different creditors. * Mary Watson is not a debtor of any of the creditors of A. C. Watson who are asking that From this it appears that there was no marshaling of assets, and, this being so, we It has been stated before that the date of the deem it unnecessary to discuss that question. Robb mortgage was in 1895, and the court found it was a first lien upon all the irregular tract. cotenants out of their interests in the common property. In support of this proposition this appellant cites 30 Cyc. 47; Oliver v. Montgomery, 42 Iowa, 37; Koboliska v. Swehla, 107 Iowa, 124, 77 N. W. 576; Leach v. Hall, 95 Iowa, 619, 64 N. W. 790. This appellant claims for the last two cases that the holdings are that it is more a question of contribution than subrogation. They contend that the only substantial difference be tween the two is that the former, if allowed, could be enforced by foreclosure, while the latter can only be by partition, or perhaps under peculiar circumstances by an equitable action for contribution, and they say that as a lien either is as binding and effectual as the other. They also cite on the question of contribution the case of McNamara v. McNamara, 167 Iowa, 479, 149 N. W. 642. And in this case, had appellant Mary E. Watson paid off the Robb mortgage before the final decree was entered in this case, she would have been entitled, at least as between herself and her brother, A. C. Watson, to contribution. We do not understand that, had she paid off incumbrances on the entire common property owned in the first place by her and her sister and later by her and her brother, A. C. Watson, she would have been entitled to receive from her brother all she paid, but only his proportion. In other words, suppose two persons together own real estate upon which there is an incumbrance of $1,000 and one of them pays it off, the one so paying would be entitled to receive from the other cotenant, not $1,000, but $500, the proportion of each. It seems to us, though we may be mistaken, that counsel for this appellant, to some extent at least, confuses the doctrine of contribution of one's proportion of an incumbrance paid off with the claim in this case that there was an agreement between A. C. Watson and his sisters that they were procuring the money for him as an accommodation, and that under the agreement she might be entitled to receive pay from A. C. Watson for the entire amount. But this appellant, | Robb mortgage, should be prejudiced by allowing Mary E. Watson to be subrogated to Robb's rights. up to the time the decree was rendered, had not paid off any part of the Robb mortgage, and it would seem to us that until she had Counsel for this appellant cite no cases paid, she would not be entitled to contribu- on this question of notice as applied to the tion. Still, again, it seems to us that by the doctrine of subrogation. They do claim, decree the trial court did, in effect at least, however, under the doctrine of contribution, though we do not understand that the court tnat a tenant in common is seised of each and put it on that ground, require A. C. Watson every part, that he holds a contingent title to make contribution because it required the to all the parts, and cannot be divested of one-third interest of A. C. Watson to pay such title until all equities relating to the the one-third of the Robb mortgage and tenancy have been adjusted, and that a purMary E. Watson two-thirds. These pay-chaser from a tenant in common, though he ments were in proportion to their interest purchases for a valuable consideration within the property. Counsel for this appellant say, as we understand it, that it makes but little difference to them whether her rights are protected under the doctrine of contribution or whether because she was surety for her brother that she is entitled to subrogation, or under the statute to have the prop erty of the principal first exhausted before resorting to that of the surety. Other suggestions occur to us as a reason why this appellant may not now have contribution as such, but it seems unnecessary to discuss this question in further detail. [2,3] 3. It is next contended by this appellant that, as between themselves, an accommodated party and the party rendering the accommodation stand in the relation of principal and surety, the former the principal and the latter the surety, and they cite in support of the proposition 7 Cyc. 725, 726; Etna National Bank v. Hollister, 55 Conn. 188, 10 Atl. 550; American National Bank v. Junk Bros., 94 Tenn. 624, 30 S. W. 753, 28 L. R. A. 492. Appellees do not dispute this proposition, and their only point is that, even if this be true, the claim of this appellant would not be prior to their regularly executed and recorded mortgage liens; they having no notice of the private arrangement between appellant and her brother. This appellant further contends that under sections 3779, 3966, and 3967 of the Code, the surety may demand that his principal's property shall be first sold and the surety sold only to make up any remaining deficiency, and such was the theory upon which her counsel seem to have tried their case in the district court under the pleading filed by them. Their claim was that they were entitled, under these provisions to the statute, to have the judgment rendered show that she was surety for A. C. Watson. They also claim that, having stated the facts and asked for general equitable relief, she is entitled to subrogation for any money that she, as surety, may have paid, or might thereafter be required to pay. We think there would be force in this appellant's contention at this point were it not for intervening rights of the plaintiffs under their mortgages. The question is whether the mortgage lienholders, not having any notice of the arrangement between the brother and sisters as to the out notice, can only take subject to the equities of the other tenant or tenants. They cite a number of cases from other jurisdictions, and McNamara v. McNamara, 167 Iowa, 479, 149 N. W. 642. But these cases, with possibly one exception, were where one had purchased the interest of one of the cotenants and thereby became himself a cotenant. Such was the situation in the McNamara Case. That case, and perhaps some of the others cited, are cases where the interest of one tenant so purchased was at judicial sale, and under such circumstances the doctrine of caveat emptor applies. And in that case the contest was between cotenants themselves. The purchaser at judicial sale is held to be a cotenant in place of the one whose interest he had purchased. There was no question in that case such as is presented here. Even though the purchaser of the interest of a cotenant is not at judicial sale, the purchaser takes the place, as cotenant, of the one whose interest he buys, and, as held in the McNamara Case, supra, the lien of one cotenant paying off an incumbrance on the common property is not one entitled to be recorded. In such a case the one purchasing such interest purchases subject to equities between the cotenants. In the instant case the mortgagees (plaintiffs and the bank) became simply lienholders on the one-third interest of A. C. Watson, and were not purchasers, and did not become as such mortgagees tenants in common with the others. They were simply lienholders. The mortgages were properly recorded. seems to us, as contended by appellee, that it is simply a question of priority of liens. The mortgages (plaintiff and People's Savings Bank) being properly recorded, this appellant must be held to have notice of them, while plaintiffs and the bank had no notice of her claim or lien. While this appellant has a lien or claim against her brother, A. C. Watson, we think she is not entitled to have it decreed to be prior to the liens of the mortgages of plaintiffs and the bank. But for such intervening rights her right as surety to be subrogated, even in advance of payment by her, could be protected by the decree. City of Keokuk v. Love, 31 Iowa, 119; Bankers' Surety Co. v. Linder, 156 Iowa, 486, 137 N. W. 496. This, of course, is true as be It [4] And at page 387, same volume, we find this: tween this appellant, her brother, and Robbin urging another person to buy land without as to his mortgage, which this appellant sign-disclosing to him an intention to assert, in any ed, and upon which she concedes she is li- event, any sort of claim to it, and without notiable. As between the parties she would contingent claim. fying him of the existence of any such facts or doubtless be entitled to subrogation. But the subrogation to a lien, which, but for his own A creditor is not entitled to question in this case is whether, under this laches, he might have had." record, she is entitled to such relief as against third persons who, without notice, have rights intervening. No cases are cited "The right of subrogation is one of equity by this appellant upon this proposition. It merely,, and due diligence must be exercised in is contended by counsel for plaintiffs, who the right will forfeit it; and subrogation is not ascertaining it. Laches in taking advantage of are the only ones besides this appellant who allowed in favor of one who has permitted the argue the question of subrogation, that the equity he asserts to sleep in secrecy until the plaintiffs were not in privity to the accom-rights of others would be injuriously affected by modation contract between this appellant who for an unreasonably long time has permitits assertion and enforcement. Thus a surety and her brother, and that the surety stat- ted himself to appear in the light of the princiutes before cited have to do only with the pal debtor cannot be subrogated, to the prejuparties who are so in privity to the contract; is otherwise where there are no supervenient eqdice of intervening equities, although the rule that such arrangement cannot affect third uities; and, where the rights of third persons persons who have intervening rights with- have not intervened, it has been held that a deout notice. It is not claimed, and could not will not bar a party of his right to be subrogatlay, short of the statutory period of limitations, be from the record, that plaintiffs and the ed to the rights of another." bank had any notice that there was any undisclosed agreement between this appellant and her brother which would create the relation of principal and surety. They seem to have relied upon the record, showing simply a mortgage to the insurance company, and took their mortgages relying there on. So that, while as between the parties to would be entitled to be subrogated to the the accommodation agreement, this appellant rights of Robb because of the suretyship retiffs and the bank, because without notice, lation, it is quite clear that as to the plainand because this appellant permitted herself in that the record showed that this appelto appear in the light of the principal debtor, mortgage, and there was nothing to indicate to plaintiffs or bank that there was any suretyship arrangement, she ought not to be permitted to assert, as against them, her claim of suretyship and ask subrogation to their not apply to the Robb judgment as to the prejudice. We think the same rule would Robb mortgage. It is our conclusion, then, that, for the reasons given, this appellant has lost or waived her right of subrogation as to the plaintiffs and the bank. [5] 4. The foregoing is a readoption of the opinion of Mr. Justice Preston upon the orig As before stated, they concede that as between Robb, this appellant, and A. C. Wat-lant, with her sister, had signed the Robb son, this appellant would have the right to ask that the Robb mortgage be satisfied from the undivided one-third from the irregular tract owned by A. C. Watson, but that as between intervening rights of plaintiffs and the bank who have mortgage liens, without knowledge or notice of the arrangement, this appellant may not set up her suretyship claim as a prior claim to that of the plaintiffs, and they say the real question involved is one of priority of liens or the priority of rights. The appellee cites no authority to sustain this contention. The very authority cited by appellant (7 Cyc. 725) is to the effect that as between himself and the party accommodated the accommodation party is, in effect, a surety, and his right to recourse against the party accommodated is that of a surety against his principal debtor. Plaintiff concedes this to be the rule. Plaintiff does not cite any authority on the question as to the rights of intervening third persons without notice. Upon an independent investigation in which we are somewhat limited as to time, we find this doctrine in 37 Cyc. 383: "Subrogation, being an equity springing from meantime a part of the real estate included the relation between the parties, and created in the plaintiffs' mortgages was mortgaged and enforced for the benefit and protection of by Watson to the People's Savings Bank on the one in whose favor it is originated, may be July 11, 1905. This mortgage was duly reasserted or waived at pleasure, either expressly inal submission of the case. There remains between the plaintiffs' mortgages and the to be considered the question of priority as mortgage of the defendant People's Savings Bank. The petition for rehearing was granted on this point. The first of plaintiffs' on March 1, 1901. The second was for $8,mortgages was for $6,100 and was executed 900, and was executed on March 3, 1903. These mortgages were both withheld from the record until December, 1906. In the or by implication, but not to the detriment of corded two days later. The amount thereof the subrogee's creditors, who, in turn, are enti- was $1,850. The plaintiffs did not place tled to subrogation to his right of subrogation, their mortgage on record until shortly after and may be assigned and enforced by the as- the discovery of the mortgage of the defendsignee. The ordinary doctrine of estoppel also applies. Thus the equitable right to substitution ant bank. Right of priority over the mort |