Jenkins v. SmithJenkins v. Smith
- Reporters:
- , ,
- Before:
- Pryor
In аn action to foreclose a mortgage, besides the owner of the equity, the indorsers of the note secured by the mortgage, and a claimant to a mechanic’s lien, аre made parties defendant. Smith, asserting the hen, alone answers. Durland, the mortgagor, is maker of the note. The American Deposit & Loan Company, indorser, is under no liability to plaintiff, its indorsement being merely to pass title to the note. Libby, the other indorser, is guarantor of the note. The note was for a loan of $50,000, which, in addition to the mortgage, was secured by a pledge of stock. Foreclosure is sought not only for the $50,000, but for $27,496.10 also, money properly expended by plaintiff in the protection of his security.
By his answer, defendant Smith asks аffirmative relief; namely, that his lien be established, and that the “ plaintiff be directed to exhaust his remedy upon the alleged note against the maker, and indorser, and against the stoсk alleged to have been deposited with him or the American Deposit & Loan Company, before resorting to the land described in the complaint.”
Argument is made for the defеndant Smith that, although his lien was filed February 18, 1896, while plaintiff’s mortgage is of record, July 19, 1895, still the hen should be declared paramount to the mortgage. But in a former action by Smith to foreclose, to which this plaintiff was a party defendant, and in which the relation of their rights was an issue to be determined (Mechanics’ Lien Law, § 17), defendant’s lien was expressly adjudged to be subsequent and subordinate to plaintiff’s 'mortgage. The question is concluded; and this even though the subjects of the actions were different. Castle v. Noyes,
Probably Smith’s" equity to have plaintiff’s claim satisfied primarily out of the stock assigned as collateral is supported by authority. Herbert v. Mechanics’, etc., Assn., 2 C. E. Green, 497; Wаshington, etc., Assn. v. Beaghen, 27 N. J. Eq. 101; Phillipsburg, etc., Assn. v. Hawk, id. 356;
The real question in controversy is whether the court will so marshal plaintiff’s securities as to. require him, before resort to • his mortgage, to exhaust his remediеs against the maker and indorser of the note. . -
It is the settled law of this state that if, to satisfy his demand, a creditor may have recourse to two funds, and ánother creditor, to satisfy his demand, may have recourse to but one of those funds, the former creditor shall be confined, in the first instance, to the fund to which he has'exclusive access; or else, that uponisatisfaction of the demand and of the former out of the fund available to both creditors, the latter creditor shall-be subrogated to the rights, of the former creditor in the fund which was oрen to him alone.
This is a statement in absolute terms of the rule as to marshalling securities between creditors; but in its application it is subject to the qualification that it inflict no injury upon any party. The .remedy proceeds, not upon a legal right, but upon a principle of equity; and consequently, if under the circumstances of the case its enforcement be inequitable, it will be withheld. " “ It must not be forgotten that it is a rule of equity on which the applicants rely. It is never applied where it will work injustice. Indeed, the party who seeks,to enforсe it must show affirmatively that it would be equitable in relation to all parties to afford him that ldnd of relief.” Bronson, J., in Reynolds v. Tooker,
In аpplying these principles to the case, it is obvious at once that the fund to which it is sought to compel recourse by the plaintiff — the note of $50,000 — is inadequate to the dischаrge of the $77,-496.10 debt for which the mortgage is security. Then, too, the insolvency of Durland, the maker of the note, is conceded, while the solvency of Libby, the indorser, is not apparent. It were manifest injustice, therefore, to deprive the plaintiff of the protection which his providence has secured, by remitting him to a resource so precarious and insufficient.
Assuming, however, the solvency of Libby, and supposing the sum for which he is indorser equal to the amount of plaintiff’s claim, still plaintiff may not be compelled to recourse against Libby.
“A surety who has paid the debt is entitled to be put in the place of the creditor, and to all the means, and to every remedy, which the creditor possesses to enforce payment from the principal debtor.” Kent, Ch., in Hayes v. Ward,
Since; then, on payment of the note, Libby, to enforce his right of exoneration against Durland, would be subrogated to the securities held by plaintiff, Libby’s equity of recourse to the land by means of the mortgage is manifestly superior to Smith’s equity by virtue of his lien; but the right to marshal securities “ cannot be used to the prejudice of those who have an equal or superior equity against the debtor.” Bispham’s Principles of Eq., § 342, and citations.
Since, too, on payment of the note, Libby would take the mortgage as plaintiff holds it, Smith’s lien, in any event, would be subordinate to the lien of the mortgage, and his satisfaction postponed to the satisfaction of Libby. It is apparent that, after foreclosure, nothing would remain for the benefit of Smith; and the remedy he solicits would still be fruitless. Lex nihil frustra, Jackson v. Adams,
It is manifest, at a glance, that the case is not one for relief by
In the case before me, Durland and Libby are differеnt-debtors of the plaintiff — the one by mortgage and the other by note — and these two funds do not both-belong to Durland, but one to him and the other to Libby. ETor has Durland an equity to compel. Libby tо pay the note; on the contrary, the burden is upon Durland, as maker, to pay it in exoneration of the surety, Libby. Ross v. Jones,
Judgment of foreclosure for $77,496.10, and interest, with costs.
Judgment of foreclosure, with costs.