[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 399 So much of the judgment as restores the mortgage upon the premises now owned by the plaintiffs, paid off *Page 401 and satisfied by the devisees of Burr, the then owners, and reinstates the same as a lien upon the mortgaged premises, prior and paramount to the lien of the judgment recovered by Orchard and assigned to the defendant, is clearly right. Upon payment of the mortgage by the then owners of the premises, they were entitled to all the rights of the mortgagee, and to an assignment of the mortgage; and having caused the same to be satisfied under circumstances authorizing an inference of a mistake of fact, equity will presume such mistake and give the party the benefit of the equitable right of subrogation. To do so in this case is to prevent manifest injustice and hardship, and interferes with no superior intervening equities. (Hyde v. Tanner, 1 Barb., 76; Runyan v. Stewart, 12 id., 537, per WELLS, J.)
The other and principal question presented by the appeal is more difficult of solution. The plaintiffs, as successors in interest of Burr, the grantee of Britton, the judgment debtor, occupy the same position and have the same rights and equities that he would have had had he continued the owner of the premises upon which the judgment was a lien. The plaintiffs are not technically sureties for the judgment debtor, but, in virtue of their ownership of lands incumbered by the judgment against the grantor under whom they claim title, who conveyed the same for full value with covenants of warranty, they occupy a position very similar to that of sureties, and are entitled to the same equities, so far as they can be administered consistently with the rights of others. The doctrine of subrogation or substitution, at first applied in behalf of those who were bound by the original security with the principal debtor, has been greatly extended, and the principle, modified to meet the circumstances of cases as they have arisen, has been applied in favor of volunteers intervening subsequent to the original obligation, and as between different classes of sureties, and in the marshaling of assets, and prescribing the order in which property and funds shall be subjected to the discharge of different classes of obligations, and as between different classes of creditors, *Page 402 so as to do substantial justice and equity in each case. (Story's Eq. Jur., §§ 633, 635, 636; Bank of United States v. Winston, 2 Brock, 252; Ingalls v. Morgan, 6 Seld., 179.)
As grantees of the land with covenants against incumbrances, broken at the instant the grant was made, they might, at any time, but for the stay by the appeal, have paid off the incumbrance and had their action for the full amount paid. (Prescott v. Freeman, 4 Mass., 627; Hall v. Dean, 13 J.R., 105; Delavergne v. Norris, 7 id., 358; Dimmick v.Lockwood, 10 Wend., 142.) But, without respect to the covenants in their deed, the plaintiffs, as the owners of property charged with the debt of another, would, upon payment of the incumbrance, have become subrogated to all the rights of the judgment creditor, and to all the securities which he held for the payment of the judgment. (Story's Eq. Jur., § 1227; Pardee v. VanAuken, 3 Barb., 534; Ellsworth v. Lockwood, 42 N.Y., 89;Wright v. Morley, 11 Ves., 12; Parsons v. Briddock, 2 Vern., 608.)
Had there been other lands incumbered by the same judgment, whether owned by the judgment debtor or conveyed by him to others, the plaintiffs might have compelled the sale of such lands in that order which would have preserved the rights and equities of all; that is, the sale of the lands owned by the debtor first in order, and then those which had been sold by the debtor in the inverse order of alienation. (Howard Ins. Co., v.Halsey, 4 Seld., 271; Guion v. Knapp, 6 Paige, 35;Gouverneur v. Lynch, 2 Paige, 300.) Applying the same principles, had the judgment creditor — with knowledge of the plaintiffs' rights — disqualified himself from transferring to the plaintiffs any securities to which in equity they would have been entitled upon the payment of the judgment, or without their consent released any such securities, or property primarily liable, or dealt with the principal to the prejudice of their rights, the lien of the judgment would have been discharged in equity. (Stevens v. Cooper, 1 J.C.R., 425; Bank of Albion v. Burns, 46 N.Y., 170; Chester v. *Page 403 The Bank of Kingston, 16 id., 336.) These principles are very familiar and of frequent application to all cases of suretyship, or in which parties are pledged, either personally or by incumbrances upon their property, for the debts of others, and there is no distinction recognized between those originally bound and those becoming by some subsequent act or assent upon their part. The plaintiffs at any time, upon payment of the judgment and becoming subrogated to the rights of the judgment creditor, would have succeeded to the remedies which the latter would have had against the sureties, upon the appeal from the judgment; that was one of the securities which he had and was bound to hold for the benefit of any who stood in the equitable relation of sureties for the payment of the judgment, either by reason of their personal obligation or because their property was bound. Sureties are entitled to be subrogated to the rights of the creditor as against all subsequent sureties. (Parsons v.Briddock, supra.) The sureties upon the appeal intervened as volunteers, and by their interposition got time for the principal debtor, to the prejudice of the prior sureties and of the plaintiffs, whose lands were bound for the judgment, and they must be considered in equity as in the same condition as any other sureties voluntarily undertaking for the payment of the judgment. Their obligation inured to the benefit not only of the creditors, but of any and all who had become before them in any way sureties for the payment of the debt. The plaintiffs, therefore, were entitled to the benefit of that undertaking, and the discharge of it without their consent was, in equity, a discharge of their property from the lien of the judgment. (Pott v. Nathans, 1 W. S., 155; Armstrong's Appeal, 5 id., 352; Burns v. Huntingdon Bank, 1 P. W. [Penn.], 395;Schnitzel's Appeal, 49 Penn. St., 23.) The principle of the cases cited from the Pennsylvania reports was adopted and applied, and the doctrine of subrogation, and the rights and equities of different classes of sureties as between each other, well considered in Hinckley v. Kreitz (58 N.Y., 583.) *Page 404
The judgment creditor by discharging the sureties upon the appeal, without the consent or privity of the plaintiffs, and with knowledge of their rights, entitled them to the relief demanded in this action. The obligation and undertaking of the sureties upon the appeal were as much for the benefit of the plaintiffs as of the judgment creditor, and the latter could not discharge the sureties, and at the same time keep the plaintiffs or their property charged with the debt.
Judgment must be affirmed.
All concur, except CHURCH, Ch. J., not voting.
Judgment affirmed.