If Mrs. Stryker, the mortgagee, had been the plaintiff, and had sought to enforce against the defendant Hughes the liability which is insisted upon by the present plaintiff, the case of King v. Whitely (10 Paige, 465) would have been precisely in point to show that she could not prevail. If there is any distinction between the cases, the one cited is stronger for the pretensions of the mortgages than the one under review. There the party seized of the equity of redemption had conveyed the mortgaged premises to the defendants, subject to the mortgages thereon, and the
Where a mortgagee is permitted to resort to a subsequent grantee of the mortgaged premises, who has agreed with his grantor to pay off the mortgage, to recover a deficiency after applying the proceeds of the sale, it is by virtue of the doctrine of subrogation in equity, by which the creditor is entitled to all the collateral securities which the debtor had obtained to reenforce the primary obligation. The mortgagor in such a case is looked upon as occupying the position of a surety; while the grantee having undertaken, upon a competent consideration, to pay the debt is regarded as the principal debtor. (Halsey v. Reed, supra.) In this case, C. W. Trotter, after his conveyance to the defendant Hughes, ceased to have any connection with the mortgage debt, and therefore cannot be considered as a surety for its payment; and for this reason the mortgagee could not claim the benefit of any engagements which the defendant may have contracted with him. Mrs. Stryker, the mortgagee in this case, has no title to call upon the defendant Hughes to respond personally for this debt. He would be a necessary party defendant to an action at her suit to foreclose the mortgage, .but the only remedy she could ask against him would be that his equity of redemption in the mortgaged premises should be foreclosed and that the land might be sold for the payment of the debt. She would also be entitled to a .personal decree for any deficiency against the mortgagor on his bond, but not against the defendant Hughes who had incurred no personal obligation to her, or to any one to whose rights she was entitled to succeed. One objection to the judgment rendered by the supreme court, therefore, is, that it gives to the mortgagee, who is made a defendant, a xemedv against Hughes to which she is not entitled, for by
Aside from the rights of Mrs. Stryker, there is no ground for sustaining this suit. Hughes was to pay nothing to 0. W. Trotter for the land, the sole consideration between them being the mortgage debt due to Mrs. Stryker, in regard to which, as before remarked, Trotter had no interest or concern. If he had brought his suit, instead of assigning the demand to the plaintiff, it would have been impossible for him to show that he had any interest in its determination one way or the other. Indeed, he could have no possible legal or pecuniary motive for instituting such an action, as he would have been a stranger to the subject of ,the litigation.
The plaintiff, it is true, has a very obvious motive in sustaining a judgment which shifts the personal liability for any deficiency which may arise from his own shoulders upon those of Hughes. His difficulty, however, is, that he has no equitable right to ask for such a transfer of that burthen. Independently of the assignment from C. W. Trotter, he could not require.Hughes-to stand between him and such a liability, for he neglected to require an engagement to that effect from the person to whom he conveyed the premises. So far as is shown, he rested satisfied that they would sell for sufficient to pay the mortgage debt, and conveyed simply by a quit-claim deed.¡ By the assignment, he acquired no other rights than such as C. W. Trotter had; and we have seen that he had none whatever as against Hughes. He rested satisfied with a statement in his contract and convey
I am of opinion that the city court of Brooklyn was right in its judgment, by which the complaint was dismissed with costs, and that such judgment should be affirmed and the judgment of the supreme .court reversed.
All the judges, except Ruggles, J., who took no part in the decision, concurred.
Judgment accordingly.