When the mortgage in question was before this court in the suit of Marsh v. Pike, (1 Sandford’s Ch. R. 210,) I decided that it was competent for Marsh, on paying the amount of the mortgage to Pike, to enforce its lien in his own name, against those who succeeded to him in the title to the equity of redemption. The Chancellor affirmed this doctrine on the appeal from my decree—(10 Paige’s R. 595.)
The same principle extended to McLean, and on his paying the amount, he became entitled to the same remedy against Towle for the collection of the debt out of the mortgaged, premises.
*119His right to this relief was perfect without any assignment of the bond and mortgage. If Pike had refused to deliver to him the securities, as well as to execute an assignment, it might have been necessary for McLean to make Pike a party with Towle, in his suit to enforce the mortgage. This however was an affair with which Towle had no concern, inasmuch as the costs occasioned by it would of course-devolve upon Pike.
An assignment from Pike being unnecessary for the protection or security of McLean’s rights, there is no valid consideration for the agreement set up in the answer, founded upon Towle’s procuring Pike to make such assignment.
It may have been unfair and dishonorable in McLean to violate that agreement,; but if it were, it does not furnish a ground for influencing the determination of this court. I must proceed on the legal and equitable rights of the parties, as ascertained by law.
It is said that the decree in Marsh v. Pike extinguished the mortgage. This was not its effect, when the money came from the surety, McLean. The decree directed Marsh to be exonerated, by a payment to Pike. If Towle had paid the amount, the mortgage would have been discharged. But on his surety paying it, equity at once subrogated the surety to the rights of the mortgagee, and kept the security on foot for his protection.
Further it is urged that the former decree gave to McLean all the remedy he needed, and if it did not, he should have obtained it by a petition in that suit. ' •
As to this, the decree in Marsh’s suit gave only a personal remedy against Mr. Towle. And it does not appear that there were sufBcient parties in that suit, to enable the court to decree a foreclosure of the mortgage, either in the first instance or in an application on the foot of the decree.
For aught I can perceive, McLean was compelled to commence a new suit in order to obtain a regular decree for the sale of the mortgaged premises.
'He is entitled to such decree for the amount of his debt and costs*