delivered the opinion of the court,
The defendant concedes that the decree of the Orphans’ Court, approving the executor’s account and making distribution, was all that was necessary as prerequisite to a suit on the bond. That decree established the executor’s personal responsibility and it was his duty to make immediate payment. It fixed the liability of his sureties for an absolute debt, a sum certain, for which there was then a present right of action against them; and they were not obliged to wait till after the legatees formally demanded the money, or issued process for its collection, before moving to protect themselves. “ Harry had no means wherewith to pay the said distribution,” and neither reason nor law required them to suffer the debt to become swollen by interest and costs, before they paid it, on pain of being treated as mere volunteers. . Their liability had arisen because of the principal debtor’s default, and the law implies that *124he requested them to pay the money. Where a surety pays an overdue debt, he can recover what he pays from the principal debtor, who will be considered as having requested him to pay the debt in receiving him as his surety: 1 Par. Con. 393.
In equity, as soon as the surety pays the debt, he is considered as subrogated to all the remedies of the creditor against the person and estate of the principal. In some cases, without payment, a surety, apprehending danger from the delay of the creditor, may compel him to sue the principal debtor on giving an indemnity against the consequences of risk and expense. A surety may file a bill in equity against the principal to compel him to pay the debt at maturity, and make the creditor a party in order that he be at hand to receive the money. In an early case it was said: “ Although the surety is not troubled or molested for the debt, yet at any time aftpr the money becomes payable, the court will decree the principal to discharge it, it being unreasonable that a man should always have such a cloud hanging over him Renelaugh v. Hays, 1 Vern. 188; 1 Story’s Eq., sect. 327; 1 L. C. Eq. 144; 3 Id. 557; Hays v. Ward, 4 Johns. Ch. 123; Beaver v. Beaver, 11 Harris 169.
When the executor made default in payment to the legatees, according to the decree of the Orphans’ Court, well settled principles authorized his sureties at once to commence proceedings to compel him to pay the debt, or themselves could pay it, as they did, and recover the money from him. The mortgage contains no express or implied contract depriving the mortgagees, as sureties, of any remedies against the mortgagor, as principal. Both on its face and in its circumstances it was a security to the sureties against “all loss, cost, damage and expense which they could or might be put to by reason of their being sureties on said bond.” Upon the executor’s default in complying with the said decree, they could have been put to damage and expense; they were legally bound to pay the debt, and had a right to discharge it and avail themselves of the security. The mortgagor has no color of defence. Was not that recorded mortgage notice to a subsequent purchaser or creditor ? He could see that the land was pledged to save harmless the sureties on an executor’s bond fully recited in the mortgage. He is presumed to have known the extent of their liability, and that, upon the executor’s default, it would become the sureties’ duty to pay the money according to the adjudication of the Orphans’ Court. The facts show no superior equity in favor of a subsequent creditor.
This case differs widely from Crippen v. Thompson and Bishop, 6 Barb. 532, cited by the court below. There the action was on a bond, given to Crippen by Thompson as principal and Bishop as surety, conditioned that Thompson should “ save harmless the said” Crippen “from a bond executed by him to Nathan R. Crippen, deceased, dated on or about the 3d day of March 1840, the said Crippen giving the said Thompson notice of any proceedings át law *125oi' otherwise thereon.” That bond was to pay the debts of Crippen, Sr., the plaintiff’s father. After it was given and before the defendants gave their bond, the plaintiff agreed with Dayton to pay him a debt owing by the father, making himself directly liable for it and thereby precluding all examination and defence as to that debt. The court, in the opinion, said: “ The question in this case, as we shall see, is -whether the plaintiff can pay the debt of his father, voluntarily and without notice, and then recover upon the bond, against him and his surety?” It was held he could not. Here the mortgagor was the principal debtor, had his day in court, with opportunity to test the legality of the claim ; and after final decree and his default, his sureties, the mortgagees, actually paid the debt, before commencing proceedings on the mortgage. The doctrine in Crippen v. Thompson, if sound, does not apply.
The plaintiffs had rights as sureties which were not waived by taking an indemnity against “loss, cost, damage and expense,” and having suffered loss, by reason of their suretyship, are entitled to advantage of their security.
Judgment reversed and a new trial ordered.