The opinion of the court was delivered by
Peck, J.Under the agreement that the defendants should take the plaintiffs’ demands against Benjamin, and put them with their *535own, and manage the interests of both parties, the plaintiffs and the defendants to share pro rata in what should be collected, the defendant Boyd took a conveyance to himself of Benjamin’s real estate, on account of these demands, it being but an equity of redemption. By this the plaintiffs acquired an equitable interest in this real estate in common with the defendants, and in the avails of it when sold. At this point, when the defendant Boyd, who is the sole defendant in interest, reported to the plaintiffs what he had done in the matter, it appears that it was then understood by the parties that when the land should be sold and paid for, the plaintiffs were to have their pay, if the proceeds of the sale should be sufficient to pay the whole of the claims of both parties, and if not sufficient to pay the whole, they were to share pro rata. It does not appear expressly whether at this time it was understood that Boyd was to proceed alone and sell the land in his discretion, or whether it was expected that the plaintiffs were to be consulted, and both parties should act in concert in making the sale. But as the plaintiffs make no objection to the sale of the land by Boyd to Biddle in August, 1858, it is to be presumed that Boyd in making that sale acted in good faith and in accordance with the understanding of the parties, express or implied. The only question presented for the consideration of this court is, whether the plaintiffs shall bear a portion of the loss of the colt and its keeping, which Boyd took of Biddle on the note Biddle gave for the land. The colt, after having been kept by Boyd about a year, got injured and died ; and the question is, who shall bear the loss. Had Boyd stipulated in the contract of sale of the land to take the colt in order to effect the sale, and taken it in pursuance of such stipulation; or, if after he had sold the land and taken Boyd’s note for it, -the demand had become doubtful, and he had taken the colt to avoid a loss of the debt or some portion of it, the question would be quite different from that now presented. After Boyd had sold the land and received the $30, and taken Biddle’s note for the $300 residue of the price, payable in money and secured by mortgage on the premises, and Biddle had kept the interest paid, and had built a barn on the premises, and repaired the house, so that, as the referee finds, the security for the *536debt was good and sufficient, Boyd had no authority to take the colt upon the note at the common risk and expense of the plaintiffs and himself, without consulting the plaintiffs and procuring their consent ; especially as it does not appear but that Biddle was personally responsible, independant of the land and mortgage security. The fact that “ Biddle complained to Boyd because he would take nothing but money of him, and intimated that be should leave the farm if he could not pay some in property other than money,” is not sufficient to charge the plaintiffs with any portion.of this loss. Again, the referee has not found that Boyd, when he took the colt or while he kept it, intended or considered it as property in which the plaintiffs were interested; and the fact that he never said anything to the plaintiffs about the colt till after the commencement of this suit, tends strongly to justify the inference that he treated the taking of the colt as a purchase solely in his own behalf. The defendant Boyd claimed on trial to have made the contract for the farm solely on his own account and denied all liability to the plaintiffs. If this was his idea and purpose at the time he received the colt in payment, he could not then have regarded it otherwise than as his sole property. This, however, would not be decisive against the defendant if, in order to make the sale of the land or to prevent a loss of the debt, there bad been a necessity for taking the colt in payment. But no such necessity, either actual or apparent, existed.
Judgment affirmed.