Havens v. . Willis

Miller, J. The mortgage which is the subject of foreclosure in this case was executed as an additional security to another mortgage, which had been previously executed and assigned to one Mary Griffin, the payment thereof having been guaranteed by Messrs. Peck, Godwin and Havens, to whom it was originally given. Mrs. Griffin by foreclosure of the last-named mortgage realized a portion of the money secured, and a deficiency remained of $11,563.14. For this amount the assignors of thennortgage, as guarantors, were sureties to her. They paid this deficiency to her, taking an assignment of the mortgage now in suit, and all the securities, rights and remedies for such deficiency. In accordance with their obligation as guarantors, upon well-settled principles of law, they were clearly entitled to be subrogated to all the securities which were held as collateral to the debt secured by the original mortgage. The mortgage involved in this action was obtained by Mrs. Griffin as security from B. F. Raynor for a demand she held against him, and when the guarantors paid the debt they were entitled to the assignment of the same. It is not important to consider the reasons which induced E. F. Raynor to unite with B. F. Ray-nor, the debtor, in the execution of the mortgage which was upon the lands of the former; it is quite sufficient that the creditor for a good consideration took this additional security for the payment of her demand against B. F. Raynor and held the same when the guarantors of that debt paid it and received from Mrs. Griffin an assignment of this mortgage. They thus became entitled to all benefits arising from the security and had a legal right to enforce the same in order to protect themselves against the deficiency they were legally liable to pay. The fact that the appellant became the owner of the mort *489 gaged premises after the mortgage had been executed confers upon him no “right to claim that the grantors of the mortgage, assigned by them to Mrs. Griffin, were not entitled to enforce their lien. The appellant purchased subject to this lien, and he occupies no position, as surety or otherwise, which authorizes him to claim that the guarantors named have no remedy by virtue of the mortgage assigned to them. This mortgage was an additional or a further security, and in the hands of the original mortgagee it could have been enforced at any time after it became due. The remedy most certainly would be complete when there was a deficiency arising upon a sale under the mortgage to which it was collateral or additional security. The plaintiffs, by virtue of the assignment to them and by operation of law, occupied precisely the same position as Mrs. Griffin, and are entitled to invoke the same remedies. Their right against the appellant is clear and unquestionable, and we are unable to perceive that any defense exists against the mortgage. The claim of the appellant rests upon the hypothesis that the mortgage on its face declares it was a supplemental security, additional to the bond of Raynor, the mortgage of Gillies and the guarantee of the plaintiffs, and that it thereby became an additional and not a new security substituted for others, discharging or impairing others, but a surety for all before who were principals as to E. F. Raynor: We think there is no foundation for this position, and that the doctrine of principal and surety has no application to the facts presented. In no sense and upon no sound principle can the mortgagor be regarded as a surety for the original mortgagor or for the guarantors of the mortgage on the assignment thereof to Mrs. Griffin. The security taken was a new, independent and additional one, having no reference to the obligation of the guarantors. It was the same as if the mortgagor had procured other securities to be assigned to Mrs. Griffin with a view of adding to the strength of that already given, and in such a case there can be no dispute as to the right of the holder or assignee to pursue his remedy upon either of the securities *490 without regard to and independent of the rights of those who are connected with the other securities. The 'holder' would have an undoubted right to collect the one or the other as he might deem best for the promotion of his interest. No subsequent incumbrancer or owner of premises included in the mortgage assigned or given as an additional security has the right to claim that he is a mere surety of the guarantors upon a prior mortgage on other premises. It is very plain that Messrs. Peck, Godwin and Havens, being guarantors and entitled to subrogation as such, independent of any assignment, would have the same rights which were enjoyed by Mrs. Griffin, and would be fully authorized to collect the amount due out of any additional security or any subsequent surety taken by her. This rule would certainly apply as the mortgage was given as an additional consideration for the benefit of B. F. Raynor, the party who originally and throughout was bound to pay the debt, while Peek, Godwin and Havens only became guarantors on a private sale of the mortgage to Mrs. Griffin, and not in any respect for the benefit of B. F. Raynor nor in any way connected with him. It would be enlarging the doctrine as to the liability of persons as sureties beyond any adjudicated case and to a very great extent, to hold that the appellant, as a subsequent owner of the land after the lien had been created, under the circumstances presented, was entitled to be relieved from the effect of the mortgage. The other questions raised which demand special attention are sufficiently considered in the opinion of the General Term. The judgment’ should be affirmed. All concur, except Earl, J., dissenting; and Rapallo, J., not voting. Judgment affirmed.