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32. If the nephew sues the niece for contribution, who will likely prevail?
A nephew and a niece inherited vacant land. The nephew soon discovered that the land was subject to a mortgage held by a local bank, which required monthly payments for the next 10 years. Without telling the niece or seeking her permission, the nephew paid the monthly mortgage payments for one year. The nephew then demanded immediate payment from the niece for half of the mortgage payments he had made. The niece refused.
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A is incorrect. The doctrine of exoneration applies when, at the time of death, an individual acquires land that is subject to a mortgage, and the specific legatee attempts to claim that the remaining mortgage balance must be paid from general estate assets. That scenario does not exist here.
C is incorrect. A partition action is not required before bringing an action for contribution for mortgage payments that, if not made, might have resulted in foreclosure on the property by the bank.
D is incorrect. Each tenant in common must make his or her pro-rata share of payments, such as mortgage payments, which if not paid could result in foreclosure on the property. Payments may be made without obtaining consent from the other tenant in common.