Opinion
01-22-1887
CURRIE v. BITTENBINDER and another.
G. A. Angle, for petitioner. J. H. Dahlke, contra.
On petition to tax costs.
G. A. Angle, for petitioner.
J. H. Dahlke, contra.
BIRD, V. C. Bittenbinder gave his bond to Currie, the complainant, and he also gave one to Opp, to secure the payment of which he gave a mortgage to them. Opp assigned his bond and interest in the mortgage to one Bittenbinder, a son of the mortgagor. Currie filed his bill to foreclose, making the owner and the assignee of the bond and mortgage parties. Bittenbinder, the said assignee, presented his claim to the master, who reported the amount due thereon. Upon a sale enough was not realized to satisfy the amount due on both bonds and all the costs.
Bittenbinder now files his petition in the cause, and asks that Currie be required to pay all the costs which are in excess of the sum realized from thesale out of his own private funds, insisting that, since Currie volunteered to foreclose the mortgage and make the costs, he must bear the burden of the costs. I think there is nothing in reason or justice for this petition to rest on. The fact that Bittenbinder came in and proved the amount due on his bond is enough of itself to foreclose every possible equity he might have as to these costs. But, aside from this, Currie had the right to proceed in a lawful way to protect his interest in the land, and, in doing this, the law made it his duty to call upon Bittenbinder in order that he might assert his claim, and protect it if he chose to do so. I think the principle underlying every such case is well expressed by Mr. Justice Bradley in Trustees v. Greenough, 105 U. S. 527, 532, where he says: "It is established by sufficient authority that where one of many parties having a common interest in a trust fund, at his own expense, takes proper proceedings to save it from destruction, and restore it to the purposes of the trust, he is entitled to reimbursement either out of the fund itself, or by proportional contribution from those who accept the benefit of his efforts." The learned judge shows that this principle applies to charities, to creditors' bills, and to proceedings in bankruptcy, and the like.
The petition must be denied, with costs.