11 Pa. 527 | Pa. | 1849
The opinion of this court was delivered by
It is conceded that the conveyances from Gossin to Denny being modified by unrecorded defeasances, are to be regarded as unrecorded mortgages, and, therefore, subject to be postponed to the subsequent mortgage executed to Harding. This leaves,
On the 5th of February, 1842, Gossin borrowed from Harding a sum of money for which he gave his note, with Brown as endorser, and, at the same time, executed to Harding a mortgage as collateral security. Harding testifies this mortgage was intended to secure Brown against any loss from his endorsement, he, as lender, being satisfied with the security afforded by Brown’s name. Gossin’s note was not taken up at maturity, and an extension of the time was granted to Brown as endorser, on condition of his, Brown’s, confessing a judgment in favour of Harding. This was accordingly done on the 8th of February, 1843. This judgment was marked satisfied in July 1843, at which time Brown substituted for it a mortgage of a portion of his property to Harding, as a further security of the original loan to Gossin. On the same day that Brown confessed judgment in favour of Harding, Gossin assigned certain dioses in action to Brown, of a nominal value exceeding the debt due to Harding as collateral security against loss. Though an effort was made to effect it, nothing was realized from these dioses, which are agreed to be worthless. On the 5th of July, 1845, Brown paid the amount secured by his mortgage to Harding, and thus discharged the original debt due from Gossin, for which, as endorser, he was surety. On the 23d of September, 1845, Harding, at the instance of Brown, assigned to him Gossin’s mortgage, by an entry on the margin of the record. Brown had no notice of the conveyances to Denny when he endorsed Gossin’s note to Harding, but was informed of them prior to the date of his mortgage of July 1843.
We have, in these facts, the naked case of a surety who paid the debt of his principal, and claims to be subrogated to the use of a mortgage which was, in fact, executed to indemnify hiin against loss. And why should he not be so subrogated ? Apart from the fact that the mortgage was given principally for his security, and may thus be regarded -as equitably belonging to him from the beginning; the equity he challenges is among the most familiar of those recognised by courts of chancery, and with us of almost daily administration. That a surety who pays the debt of his principal is entitled to the benefit of all the securities within the power of the creditor, is a doctrine acknowledged in this
The fact that Brown, before the execution of his mortgage to Harding, had notice of the conveyance to Denny, cannot, of itself, operate to alter the relative rights of the parties. Before this, Brown had incurred the liability he was ultimately obliged to discharge ; and this, too, on the faith of Gossin’s mortgage to Harding.
Judgment affirmed.