
    Downer vs. Miller and others.
    A loan of money or credit, for the purpose of enablingthe borrower to pay a debt-for which the lender is in no way bound, as surety or otherwise, does not entitle the lender to be subrogeted to the rights of the creditor whose debt was thus paid.
    L obtained a judgment for foreclosure and sale of property owned by S, upon which D had a junior mortgage executed by S. S agreed with M, that if M would indorse a note to raise money to pay I/s judgment, such judgment should be kept open and assigned to M, for his security as such indorser; and the money was raised on such indorsement and paid to L, who gave a receipt in full for said judgment. D was ignorant of the existence of the above agreement, and delayed prosecuting his claim against S, and took no steps to redeem from s.'id judgment, owing to the representations of S that such judgment was satisfied. Held, That a court of equity will keep such judgment alive and in force for M’s security as indorser, according to the agreement between him and S; and it also appearing that M had paid such note, he was allowed to enforce such judgment of foreclosure, to collect the amount he had paid, with interest and costs of collection.
    It was no objection to the enforcement of the agreement between M and S, that the creditor L was no party to it, as such agreement would be executed when justice between others required it, without reference to'the question whether L assented to it.
    To use the money thus obtained on M’s indorsement to pay such judgment and have it discharged, would operate as a fraud upon M, and he would be entitled to have such discharge set aside.
    The rights of D were subsequent and subject to L’s judgment, and as they were not acquired upon the faith of its discharge, he is therefore in no position to insist that he is injured by the judgment being kept in force for M’s security.
    when a prior mortgage or judgment, by wrong or fraud has been discharged of record, a subsequent mortgagee whose rights existed at the time of such discharge, cannot claim to be injured by the discharge being set aside, and the prior mortgagee or judgment creditor restored to his rights.
    Mere delay on the part of D to enforce his mortgage, on the faith of the satisfaction of L’s prior judgment, is not such a change of position as to entitle him to object to the execution of the agreement between M and S.
    APPEAL from the Circuit Court for Milwaukee County.
    This was au actiou brought by Downer against Andrew Q. Miller, The Wisconsin Marine and Fire Insurance. Company Banhaná. Mitchell Steever, for au injunction and relief. The complaint alleges, in substance, that on the 13th day of December, 1855, Mitchell Steever and George W. Clason brought am action against Joseph Shepard, Thomas Lyness and others, to foreclose a mortgage on land in Milwaukee county, executed bj Joseph Shepard and wife to Jane Garvey for $7000, and assigned to said Steever & Clason ; that on the 26th April, 1856, a decree of foreclosure and sale was rendered in said action, Lyness having made default; that on the 13th of May, 1856, Lyness made application to open the decree, and a stipulation was entered into between Steever & Clason and said Lyness, to the effect that Steever & Clason might sell the mortgaged property under their decree without prejudice, and that Lyness might answer and defend as though no order pro confesso had been entered, and that on such sale a sufficient sum of money should be considered in court to satisfy the claim of Lyness in case the court should decide in favor of the priority of his mortgage, and said Steever & Clason covenanted in said stipulation to hold themselves responsible for all money adjudged to Lyness in said ease; that on the same day Lyness put in an answer setting up that he was the owner of a bond and mortgage which was a prior lien on the same premises, executed by said Joseph Shepard; that the premises were accordingly sold under said decree to Steever & Clason, which sale was confirmed September 1, 1856, and on the 3d of April, 1857, judgment was entered in said action, in substance, that the mortgage of Lyness was a prior lien to that of Steever & Cla-. son, and that there was then due to Lyness on his bond and mortgage the sum of $1225, and that the plaintiffs, Steever & Clason, bring the same into court to be paid to the said Lyness, within twenty days after service of a copy of such judgment, “ and that in default thereof execution issue against them to collect said sum for which judgment is hereby en-ered,” &c.; that on the same' day the judgment was docketed so that it became a lien on real estate of said Steever & Cla-son; that on the 11th of May, Steever & Clason appealed from said judgment to the supreme court, and to stay proceedings thereon, executed an undertaking, with sureties, to pay the judgment if it should be affirmed; that on the 24th of July, 1858, themircuit court entered a judgment of foreclosure and sale in the usual form, in favor of Lyness, for $1376 .33; that Steever & Clason appealed from that judgment to the supreme court on the 19th of August, 1858, and gave aü un^erta^ri& with sureties, to pay tbe value of tbe use of said premises if the judgment was affirmed, and any defi-oiency not exceeding $1200; that tbe last named j udgment was affirmed by tbe supreme court on tbe 4th of Jan-ary, 1860; that on the 7th of June, 1856, Clason sold and conveyed bis interest in tbe mortgaged premises, being an undivided half, to said Steever, and Steever executed bis note for $1700 payable to Clason or order on tbe 1st of July, 1859, with eight per cent, interest payable semi-annually, secured by a mortgage on tbe premises executed by Steever, and that Clason, on or about tbe 17th of July, 1858, assigned tbe said note and mortgage to tbe plaintiff in this action, and guaranteed tbe payment of tbe note to him to the extent of $1450 and twelve per cent, interest thereon from that date; that on tbe 12th of December, 1860, Downer commenced an action in tbe county court of Milwaukee County, against Stee-ver and others, to foreclose tbe mortgage so assigned to him by Clason, and obtained judgment of foreclosure and sale in such action on tbe 1st of July, 1861, for $2182.31, besides costs ; that tbe premises in question were sold on such judgment to Downer, on tbe 12th day of October, 1861, which sale was subsequently confirmed; that soon after tbe Lyness j udgment of foreclosure and sale was affirmed in tbe supreme court, Downer■ frequently inquired of Steever if tbe Lyness judgment was paid, and Steever at one time informed him that he bad paid $800 thereon, and showed him a receipt therefor, and assured him be should pay tbe remainder in a very few days; that on or about tbe 1st of March, 1860, Steever assured him that he bad paid such judgment, and bad a receipt in full from Lyness's attorneys, and that tbe same bad been or would be discharged of record, which Downer believed to be true and still believes; and that re lying upon such information be did not commence a foreclosure of tbe mortgage held by him so soon by several months, as be would, bad be known or been informed that tbe Lyness j udgment remained unpaid. Tbe bill further alleges that on or about tbe 9th of March, 1860, J. H. Paine & Son, who were attornej'S of record for Tjyness, made an entry of full satisfaction in tbe judgment docket opposite tbe entry of tbe personal judgment in favor of Lyness against Steever & Clason, and that tbe said personal was discharged, and thereby tbe said judgment of foreclosure and sale in favor of Lyness was also discharged; that Lyness bad, prior to March 9th, 1860, received from Steever, in money or its equivalent, the full amount of said judgment of foreclosure and sale, and Paine & Son, as his attorneys, had given their receipt in full of said judgment, and said judgments were then fully paid and satisfied, and are or ought to Jae discharged of record ; that about a year thereafter, the defendants, or some one of them, persuaded Lyness to assign his judgment of foreclosure and sale to the defendant The Wisconsin Marine & Fire Insurance Company Bank, and such assignment was filed among the papers in that action; that the defendant Miller elaims that he indorsed, for Steever's accommodation, a note for $1000, which was discounted by said bank, and that the proceeds thereof were used in paying the balance due on said judgment of Lyness; that Miller was instrumental in procuring the assignment of the Lyness judgment to the Bank, and claims that the assignment is valid and that the Lyness judgment still remains in force and unsatisfied, and that said Bank or Miller, on the payment of said note or one given in renewal thereof, has the right to be subrogated to the rights of said Lyness and to enforce said judgment; and that they are proceeding to sell said premises under said judgment, and the plaintiff fears that they will sell the same unless enjoined by the court; that the claims of said Miiler and said Bank, and said assignment of Lyness judgment, are a cloud upon the title of the plaintiff; that Steever, at the time the personal judgment in favor of Lyness against him and Clason was rendered and docketed, owned divers lands on which such judg: ment was a lien, which he has since conveyed absolutely or by mortgage, and that when said personal judgment was discharged, Hunn & Crosby had a subsequent judgment against Steever, upon which they issued execution and sold still other lands belonging to him; that if such personal judgment in favor of Lyness against Steever and Clason had not been paid, the plaintiff would have had the right, as the assignee of tbe mortgage from Stekver to Clason, to pay Lyness . whatever was owing to Mm on said two judgments in Ms favor, and to be subrogated to bis rights, including tbe right to enforce such personal judgment against Clason and Steever and against their sureties in said undertaking on appeal, which right he has now lost; and that Steever is now insolvent. The plaintiff prayed for a temporary injunction to restrain the threatened proceedings on the Lyness judgment of foreclosure and sale, and that such judgment might be satisfied of record, and that Miller and the Banh might be perpetually enjoined from selling or attempting to sell said premises under and by virtue of said Lyness judgment; that if the defendants or either of them had any rights, by subro-gation or otherwise, to enforce the Lyness judgment, they might be required to exhaust their remedy on the personal judgment against Steever and Clason and their sureties in said undertaking on appeal, before selling the mortgaged premises; and that in case it should be found that the judgment of foreclosure and sale in favor of Lyness was still in force, and that it would be inequitable to compel them to resort to their personal remedy against Steever and Clason and their said sureties before selling said premises, an accorrnt might be taken of the amount due them on said judgment, and that upon the plaintiff paying the same, he might be subrogated to the rights of Miller and the Bank, or either of them, &c.
    The Bank answered that it had assigned the Lyness judgment to Miller, and disclaimed any. interest thérein. The answer of the defendant Miller alleges that the personal judgment against Steever and Clason in favor of Lyness was annulled by the subsequent proceedings and decree of the court in that cause ; that before its rendition the mortgaged 'premises became the homestead of Steever, and he resided on them until after the plaintiff purchased the same under his judgment.as mentioned in his complaint; that Lyness’s attorneys, on the 24th of July, 1858, applies to have the personal judgment against Steever and Clason vacated, and the usual decree of foreclosure and sale rendered; and that thereupon the court made a decree, reciting that it had been shown that its decree of the 3d of April, 1857, had not yet been enrolled, but remained under its control, and that said decree was defective in not requiring the sale of the mortgaged premises according to the practice of the court — and ordering in the usual form foreclosure and sale of said premises for the payment of the lyness mortgage, and a personal judgment against Shepard for any deficiency; that when the plaintiff purchased his mortgage from Olason, he had full knowledge of the mortgage of Lyness, and that with full knowledge of the Lyness judgment of foreclosure the plaintiff extended to Steever the time of payment of his note, in consideration of Steeve?'’s promising to pay interest on the whole debt at the rate of twelve per cent, per annum; but the answer denies that Steever made the assurances mentioned in the complaint in reference to the payment or discharge of the Lyness judgment, and alleges that Steever at all times claimed and represented to the plaintiff, that $1000 of the amount paid to Lyness had been raised by an indorsement of a note in bank for that sum, and that the decree was kept open and in force for the benefit of the indorser, and that when that note was paid by him (Steever) the decree would be satisfied of record. The answer also denied that the plaintiff had delayed foreclosing his mortgage for the reasons stated in his complaint, but alleged that such delay was pursuant to his said agreement with Steever, extending the time of payment. It also alleges that the plaintiff had no knowledge or information of the entry on the judgment docket of the satisfaction of the personal judgment against Steever and Olason, until a few days before he commenced this action, and that the defendant had no knowledge or information of such judgment or order therefor, or of the alleged satisfaction thereof, until about the 12th of October, 1861, and that said satisfaction as to the defendant Steever was vacated the day before the said mortgaged premises were sold to the plaintiff.
    The answer also alleges that on the 5th of March, 1860, Steever called on said Miller, and stated that the premises in question were about to be sold on the Lyn-ess judgment, which was the first lien thereon, for a balance of about $1000, and that he had an understanding with 
      Lyness's attorneys that tbe judgment would remain open and . unsatisfied of record, and be assigned to any person wbo would assist him, to raise tbe money and stop tbe sale; that Steever proposed to him, that if be would indorse bis, (,Steever's) note to tbe Wisconsin Marine & Fire Insurance Company Bank for $1000, at sixty days, for that purpose, said decree should remain unsatisfied of record, and be assigned to him for bis security as such indorser ; that relying upon said promise, said Miller did, on that day, indorse a note of said Steever's for that amount, which was discounted at said Bank, and tbe proceeds paid to tbe attorneys for said Lyness; that at tbe time said money was paid, Stee-ver requested an assignment of said decree, which said attorneys promised to procure, but bad not done so ; that when said money was paid, Steever took a receipt therefor from Lyness's attorneys only as evidence of such payment, but that tbe money was not paid with the intention of having it go in satisfaction of tbe decree ; that Lyness, at the request of tbe defendant Miller, in pursuance of tbe said promise of bis attorneys, assigned bis decree to said Banlc, and that the assignment was recorded at tbe foot of said decree on tbe 3d of February, 1861, and filed in tbe office of tbe clerk of tbe court; that said note was not paid at maturity, but was renewed from time to time by defendant’s indorsement, Steever paying tbe discount on such renewals, and that tbe assignment was taken from Lyness to tbe Banlc because tbe note bad not been paid, but that on or about tbe 25th of September, 1861, a renewal note for $1000 was made by Steever and indorsed by said Miller, payable in thirty days, and Steever failing to pay the discount said Miller paid it, and thereupon tbe Banlc assigned tbe Lyness decree to him, which assignment be caused to be filed and recorded ; that on tbe 10th of October, 1861, and before tbe sale of tbe premises by tbe sheriff to tbe plaintiff, be paid tbe Banlc $1000 and took up said last mentioned note ; that on that day be caused said premises to be advertised for sale by tbe sheriff of Milwaukee county, under said Lyness decree, and insists that be has a right to sell tbe said premises to collect tbe said sum of $1000, with interest thereon from September 27th, 1861, and costs of sale; that at the time of the sale of the mortgaged premises by the sheriff to the plaintiff, the plaintiff had full notice of his rights in the premises, but directed the sheriff to proceed with the sale, and bid off the premises for $1000; that the property cost Steever $7000, and is now worth, at least $4000, and that said Miller has no other security for his claim than the said Lyness decree so assigned to him; that as to the conveyances of real estate alleged to have been made by Stee-ver, he has no knowledge or information sufficient to form a belief; that said Miller furnished the plaintiff a statement of his interest in the premises a few days before such sheriff’s sale, but that the plaintiff did not redeem said premises, but has always refused to do so. The answer demanded that the Lyness decree might be adjudged to be the first lien on the premises; that said Miller might have a lien under the same for $1000, with interest and costs, &c.; and general relief
    At the trial in the court below, the deposition of the plaintiff was read in evidence, in which he testified to the purchase of the mortgage mentioned in his complaint, from Clason, and that he has asked Steever for the money several times; that Steever told him if he would extend the time he would pay 12 per cent, interest; that he told him his mortgage was a second mortgage and he could not give him time. He testified further as follows: “I think I gave him as a reason why I could not extend the time, that Clason guaranteed the note and mortgage to me, and that such extension would release him. I afterwards told him that if I should give him time, it would release Clason, who guaranteed the payment of the note and mortgage to me. ‘ I cannot give you an extension for a day or an hour, or do anything that will affect Clason’s liability.’ Steever then said, ‘I will give you 12 per cent, interest without any agreement to extend the time.’ I told, him I was going east * . * * and it was not probable I would bring any suit on the note and mortgage until I returned, but I wanted him to understand I had the right to do so any moment I chose. I then drew a writing at tbe bottom of the note, by wbiob Steever . agreed to pay 12 per cent, interest, and antedated it to July 4th, 1859, and Steever signed it. In January or February, 1860, I heard that the foreclosure judgment of Lyness had been affirmed by the supreme court. I asked Steever about his paying it and when he was going to do it, and he said very soon. I saw him a few days after at his office, and asked him if he had paid the Lyness judgment. He replied he had paid all of it but $1000, and took out and showed me what purported to be a receipt from J. H. Paine & Son, containing what purported to be a statement of the damages, interest and costs due to Lyness on his foreclosure judgment. Below the statement was a receipt of the payment of between $800 or $900, to the best of my recollection, reducing the judgment to $1000. * * * A few days after this I saw Steever again, ,and asked him if the balance of the Lyness judgment had been paid. He said it had, and he had the receipt of Lyness in full. I am not certain whether he showed me the receipt in full or not. My best recollection is that he added, ‘It is discharged of record,’ but of that I am not certain. I know that what he did say to me at that time gave me perfect confidence that the judgment was fully paid and satisfied, and that I should not be troubled with it any more, and I never had the least doubt that the judgment was paid and satisfied until December, 1860. I had inquired of Lyness's attorneys whether it was paid and satisfied, or whether Lyness had transferred it, and was informed that it was paid and satisfied in full, and that Lyness had refused to make any transfer of it; therefore I commenced my foreclosure suit without making him a party. If I had known that the Lyness judgment was not paid in full, or was in any way to be kept in force as alien prior to mine, I should have no doubt commenced an action on the note I held against Steever, assigned to me by Olason” and in my judgment • I should have been able to collect it, or a large part of it, without resorting to the mortgaged premises, provided such suit had been commenced and diligently prosecuted in the winter or spring of 1860. About July 13, 1860, I took Steever’s note for $218, payable the 1st of October, ensuing, for interest due on tbe note assigned me by Olason, which I should not have done if I had not then believed. from the previous information given by Steever, that the Lyness judgment was paid. At the mortgage sale, B. K. Miller gave notice as attorney for the defendant Miller, that this Lyness judgment had been transferred to him, and was in force as a prior mortgage on the premises to the amount of $1000, and interest from some date, and costs of advertisement. I bid off the premises for $1000.”
    James H. Paine, testified that he was one of the attorneys for Lyness in the proceedings against Steever & Clason. “On receiving the last payment, I went to the clerk’s office and paid the taxable costs and discharged on record a judgment that had been rendered in the same case in the nature of a personal judgment against Steever & Clason, under a stipulation of record in the case. I have no recollection that Mr. Steever said anything to me at that time about assigning the judgment to any one, or that any one had any interest in the judgment. Some days after the payment, Steever came to me and requested me to procure from Lyness an assignment to him of the judgment in Lyness's favor * * * Some few days after Mr. Steever made this request, I saw Lyness and told him what Steever wanted. He refused, to make any assignment.” The witness also testified that he had the sole management of the matter and that his son had nothing to do with it. “Before receiving the money, or at the time of it, we made no agreement with Steever to procure Lyness's assignment of the judgment, and he made no such proposition to us, nor any proposition of the kind. Nothing was said about an assignment at the time the money was paid. There was no agreement whatever made as to the judgment remaining open or unsatisfied, and no proposition or talk whatever was had on the subject.” The plaintiff then put in evidence a receipt in full for the Lyness judgment, dated March 5th, 1860.
    The defendants read in evidence the record in the case of Mitchell Steever and George W. Clason against Joseph Shepard and others, mentioned in the complaint in this action ; an assignment made by Thomas Lyness to the Wisconsin Ma-
      
      riñe and Fire Insurance Company Bank, of the foreclosure , judgment in bis favor, which assignment was dated February 1st, 1861, and filed February 4th, 1861; the assignment of the Bank to the defendant Miller and its record; an order vacating the satisfaction of the personal judgment against said Steever & Clason, made October 12th, 1861; the papers and record in the foreclosure suit of Downer against Steever and others in the county court of Milwaukee county, being the same mentioned in the complaint.
    The defendants then offered in evidence the affidavit of James H. Paine, upon which the attorneys of Lyness moved for the judgment of foreclosure mentioned in the pleadings, which contained the following statement: “It was agreed in the progress of the suit, between myself as attorney of Lyness and the said M. Steever, that in case the'court should decide that the mortgage of the said Lyness was a lien on said premises superior to the former mortgage of Shepard to Garvey and wife, sold to Steever & Clason, then Steever & Clason should bring the money due on Lyness’s bond and mortgage and costs into court, and it was upon this understanding that the decree was drawn from which the appeal was taken to the supreme court Soon after the decision by the circuit court, I called on Mr. Steever for the money due to Lyness, and he neglected to pay it. I have also asked him for the money since the return of this cause from the supreme court, but he has neglected to pay or bring the money into court. Under this state of facts, I ask the court to vacate its former decree, and to make the decree for the sale of the mortgaged premises according to the usual practice of the court.”
    The defendant Miller testified, among other things, to the agreement between himself and Steever about the indorsement, and also to Steever’s statements to him about the Lyness judgment, and the transactions between himself and Steever and the Bank, and the payment of the note, as detailed in the answer; that he indorsed only upon the agreement that the Lyness decree should remain open and unsatisfied of record for his security; that on or about the 1st of February, 1861, at his request, Lyness assigned his decree to tbe Bank; that be took tbe assignment to tbe clerk’s office and bad it recorded and filed as alleged in answer; that be then knew of no prior judgment against Steever & Olason; that be notified tbe officers of tbe Bank of tbe assignment; that be paid tbe Barite, Septeniber 23d, 1861, tbe $1000 note; and that on or about tbe 13th of October, 1861, tbe Bank assigned tbe decree to him. On cross-examination, be testified that Steever told him. each time be indorsed after tbe first, that tbe decree bad not been assigned, and that Lyness refused to assign it, but that it was still open and unsatisfied; and that be first beard of tbe receipt given by Paine & Son about tbe time be got the assignment from Lyness.
    
    Tbe defendant Steever testified to the agreement about tbe indorsement of tbe note by Miller, and tbe payment of tbe money and tbe transaction between him and Lyness's attorney about an assignment of tbe judgment, substantially as set forth in tbe answer of tbe defendant Miller; that be told Downer bow be bad raised tbe $1000 in bank by an indorser, and bad tbe decree assigned to secure the indorser ; that be (witness) considered it as good as asssigned, and that be subsequently told him who tbe indorser was, and never told him the decree was paid or discharged of record, or words to that effect; that be told Downer tbe first time that be came to tbe office of witness, after the payment of $1000, how he obtained it, and tbe agreement about tbe assignment of tbe decree to Miller.
    
    Tbe plaintiff was recalled, and testified in bis own behalf among other things, that Steever never told him at any time that Lyness's decree was to be kept open and unsatisfied, and be assigned, or that it was assigned to Miller or any other person; that the first he ever beard of tbe assignment or agreement about keeping tbe decree open, or about Miller indorsing for Steever, was in a conversation between him and Miller about two weeks before plaintiff’s foreclosure sale.
    On cross examination, be stated that be never knew that there was a personal judgment against Olason and Steever, in favor of Lyness, until after bis conversation with Miller, in September, 1861, and that be thought be did not know it until after bis foreclosure sale. It was proved on tbe trial that . the satisfaction of this personal judgment bad been vacated as to tbe defendant Steever, as alleged in Miller's answer.
    Tbe circuit court decided that tbe Lyness judgment of foreclosure and sale was not paid and satisfied, but was a subsisting lien, and the first lien on tbe premises mentioned in tbe complaint, and that tbe plaintiff bad a right to redeem on paying wbat might be due Miller, and tbe costs; and judgment was entered accordingly, from which the plaintiff appealed.
    
      J. Downer, in pro. per.:
    
    1. Lyness received the money on his decree against Shepard, as payment and in full satisfaction of the judgment, and not with the intention of having it kept open or of assigning it; and the judgment was dead tbe moment Lyness or bis attorneys received the money, and an assignment a year af-terwards could not give it life in the hands of the as-signee. Green’s Ch., 458; 5 Cow., 671; 2 SelcL, 449; 6 Ind., 320; 27 Me., 212. 2. In this case there can be no subrogation. Shepard is the debtor not Steever, and at the request of Steever — not at the request of Shepard — Miller indorsed and paid Steever''s note. He is a mere volunteer, and cannot be subrogated to the rights of Lyness in the judgment against Shepard. Swan vs. Patterson, 7 Md., 168; 2 Bland’s Cb. R, 166. 3. If the note and mortgage had been made by Steever instead of Shepard, then Miller would not have had any right of subrogation. The general rule is, that only those sureties who are bound in the original instrument have the right of subrogation. Sanfoi'd vs. McLean, 3 Paige Oh., 117; Nolte & Go. vs. Their Creditors, 7 Mart., N. S., 603; Harrison vs. Bisland, 5 Rob., 204; Qadsen vs. Brown, Speers’ Ch., 37 ; 5 Dana, 241. 4. The personal judgment against Clason and Steever was valid. 9 Cow.,- 26, 233 ; 1 Humph., 80. It has been affirmed by this court, Clason vs. Shepard, 6 Wi?., 369, and the judgment of foreclosure did not vacate it. Whatever may have been the intention of Lyness's attorney, no order vacating tbe personal judgment was ever made. 5. The plaintiff is injured by Miller's laches ,in not having the assignment made to him simultaneously with the payment of tbe money, and by trusting to Steever’s representations and promises, and be cannot now- redeem from Lyness judgment so as to be subrogated to Lyness's right to enforce tbe personal judgment against Steever and Olason and tbeir sureties on appeal, as tbe discharge of that judgment as to Clason would release such sureties; and as tbe premises are worth only enough to pay tbe plaintiff’s mortgage, if Miller prevails tbe plaintiff will have to lose tbe amount in question. Tbe party that has been careless should suffer. Whoever bolds under tbe doctrine of subrogation, must have a greater equity than bis opponent. Erb's Appeal, 2 Pa., 296; Goswiters Estate, 3 Pa., 203 ; Himes vs. Keller, 3 Watts & Serg., 403; Armstrong's Appeal, 5 Watts & Serg., 352 ; Lloyd vs. Galbraith, 32 Pa. St., 132; Patterson vs. Pope, 5 Dana, 244. If tbe Lyness judgment is dpen and unsatisfied, then Miller, by indorsing Steever's note, delayed its collection out of tbe personal judgment against Steever and Clason, for it could not be collected by any person after Miller indorsed tbe first note until it became due, and this extension of time for tbe payment of tbe personal judgment discharged tbe sureties on appeal from that judgment. Downer, on payment of tbe first mortgage debt, would have bad a right to be subrogated to Lyness’s rights and to enforce tbe undertaking against tbe sureties, and this right he has lost by Miller’s acts. 6. Tbe discharge of tbe personal judgment against Olason and Steever, paid and discharged both tbe Lyness personal and foreclosure judgments. Payment on tbe personal judgment, winch was collateral to tbe other, was payment on tbe principal. 7. Tbe assignment of tbe Lyness judgment could only be made by Lyness, not by Steever, and when Lyness received tbe money and refused to make tbe assignment, that was tbe end of tbe matter so far as an assignment was concerned. The agreement for tbe assignment was of no effect, as it was not made with tbe owner.
    
      ~Wm. P. Lynde .and Mat. H. Carpenter, for respondents:
    The Lyness mortgage was tbe first lien on tbe premises. Steever and Clason purchased subject to it. It was no personal debt of theirs, but was part of the purchase price. Bel
      
      mont vs. Goman, 22 N. Y., 438. The plaintiff purchased . his mortgage with full knowledge of Lyness’s lien. Whether the personal judgment or order against Steever and Clason created a lien on their property or not, is immaterial, as it was abrogated and superseded by the subsequent judgment of foreclosure and sale, and this last decree was affirmed on appeal. Glason vs. Shepard, 10 Wis., 356. The satisfaction entered by Lyness’s attorneys was merely carrying out their application to vacate that judgment upon making the decree of foreclosure and sale. Mere delay in proceeding to foreclose on a mortgage lien is no ground for relief. Downer purchased at the sheriff’s sale with notice of Miller's rights, and subject thereto, and he then ceased to be a lien credit- or, but became a purchaser under Steever, and as Steever could not dispute Miller's right to the decree, so Downer cannot. He has no equity that Steever had not. Jaclcson vs. Chamberlain, 8 Wend., 620 ; Barnes vs MeGlinton, 3 Penn., 67; Smith vs. Painter, 5 Serg. & R., 223-5; Weidler vs. The Banlc, 11 Serg. & R., 138; Friedly vs. Scheetz, 9 Serg. & R., 156; Matthews vs. Aikin, 1 Comst., 595-604; 7 Paige, 248; 2 Johns. Ch., 125 ; 10 Paige, 249, 503.
    The personal judgment against Steever & Clason was not founded on the original debt of Shepard to Lyness, but upon their stipulation to bring the money into court, which was outside of and collateral to the prior lien, and of his right to prosecute it The land was the principal thing, and is to be first taken for the debt. Belmont v. Goman, 22 N. Y., 438 ; 4 Johns. Ch., 123. And releaseor satisfaction of the collateral does not discharge the principal, and other lien creditors cannot object. Dyott's Estate, 2 Watts & Serg., 489,490 ; 10 Wis., 356. There can be no question but Miller indorsed the note, and the money was paid, with the intention on his part, and that of Steever, that the decree should be held for his use and benefit, and the decree is not satisfied. An assignment was not necessary. By the indorsement under the agreement with Steever, Miller became the equitable owner of the decree, and by the assignment the legal owner; and a court of equity will keep the decree alive to serve the purposes of justice and the actual and just intention of the parties. Harbeck v. Vanderbilt, 20 N. ,Y., 895; Cotirill's Appeal, 11 Harris (Pa.), 294; Matthews v. Aikin, 1 Corns., 595; Mooney v. Parker, 18 Ala., 708; Foster v. Fox, 4 Watts & Serg., 92 ; Campbell’s Appeal, 29 Pa. St., 401; Fleming v. Beaver, 2 Bawle, 128; Kuhn v. Forth, 10 Serg. & R., 399; Qoulding v. Bunster, 9 Wis., 513; Selleck v. Phelps, 11 Wis., 380; Horner v. Hower, 39 Pa. St., 126; Barnes v. Camack, 1 Barb., 392. A verbal appropriation of securities to indemnify a surety is sufficient, and prevails over a subsequent assignment. Hinkle v. Warner, 17 How., 366; 5 Ala., 393. The receipt was not taken in satisfaction of the decree, and may be explained by parol. 12 How., 139; 19 id., 289; 22 id., 342 ; 17 id., 464. The bank, being the creditor of Steever & Miller, was entitled to Miller’s security, and the assignment to it was valid. Curtis v. Tyler, 9 Paige, 432; Heath v. Hand, 1 Paige, 329; 37 Pa. St., 71.
    November 26.
   By the Court,

Paine, J;

It is not necessary to sustain the judgment in this case upon the principle of subrogation. If Miller had simply loaned his credit to Steever to enable him to raise the money with which to pay the Lyness judgment, Miller being in no way bound to pay it, either as security or otherwise, this alone would not have entitled him to be sub-rogated to the rights of Lyness. We know of no case that has ever carried the doctrine of subrogation so far as to hold that a mere loan of money, for the purpose of enabling the borrower to pay a debt, entitles the lender to be subrogated to the rights of the creditor whose debt was thus paid.

Miller’s rights, therefore, must depend entirely on the effect of the agreement between him and Steever, and that we deem sufficient to justify the judgment of the circuit court. That agreement was, that Miller-was, to indorse for Steever so as to enable the latter to raise the money at the bank, but that the money was to be used not to pay and extinguish the Lyness judgment, but to procure an assignment of it to Miller, to indemnify him as indorser.

To use the money thus obtained to pay the judgment and have it discharged, would operate as a fraud upon Miller, and it is upon this ground that he was entitled to the relief given, by tbe court below. It may be conceded that such relief could not have been given against any party who, relying upon the discharge of the Lyness judgment, has acquired an interest in the property for a Valuable consideration, without notice of Miller's equitable rights. But the appellant here does not stand in such a position. His rights were subsequent and subject to the Lyness mortgage. They existed before the transaction between Miller and Steever, and were not acquired upon the faith of the discharge of the Lyness judgment upon the record. He is therefore in no position to insist that he is injured by allowing that discharge to be set aside and the judgment kept in force for Miller’s security, according to the agreement between him and Steever. Where a prior mortgage or judgment has, by wrong or fraud, been discharged of record, a subsequent mortgagee, whose rights existed at the time of such discharge, cannot claim to be injured by allowing it to be set aside, and the prior mortgagee to Jae restored to his rights. If Lyness had been induced by fraud to enter a discharge of his judgment, would Downer have been in any position to object to its being set aside? Clearly not. And the principle is the same as the case now stands. Miller raised the money with which Lyness was paid, upon an agreement that he was to have the judgment as security. To deprive him of that security is a fraud upon him. To restore him to his rights is no injury to the appellant, for it leaves him just where he was.

It is true, he claims to have been injured by delaying the enforcement of his own claim, in consequence of Steever's representations that the Lyness judgment was extinguished. He says he might have redeemed the first mortgage, and then have enforced the personal judgment against Olason & Steever. But the case shows that this personal judgment was to have been vacated when the foreclosure judgment was entered as a substitute for it. And although it may not have been so entered on the record, the court would undoubtedly have caused it to be done at anytime on a proper application.

The appellant therefore lost nothing there. Nor do we think his delay to enforce his own claim can be regarded as such a change of position, on the faith of the record, as should enable him to object to the enforcement of the agreement between Miller and Steever. His own evidence shows that he never agreed to any extension of the time to Steever so as to release Clason the guarantor. Had he done so upon the faith of the Lyness judgment, and did it appear that he would now suffer loss by allowing that judgment to be enforced against the property, it might constitute a good objection upon his part. But the proof fails to show this. Nor is the fact that Lyness was no party to the agreement that his decree should be assigned for Miller's security, any reason why that agreement should not be enforced. It was a matter of indifference to him whether the decree was assigned or discharged, and where justice between others requires it to be assigned, he should not be allowed to prevent it upon the supposed technical right to control his own decree. The enforcement of this agreement between Miller and Steever without reference to the question whether Lyness assented to it, is entirely analogous to the principle of sub-rogation, where the assent or agreement of the creditor who gets his money is not essential to the right. If a surety pays a debt, he has a right to be subrogated to the securities of the creditor, and the latter would not be allowed to object, for it is a matter of indifference to him. It is equally true here, though Miller’s right is not that of subrogation, but grows out of the agreement between him and Steever. That agreement is one which should have been enforced, even though Lyness had adhered to his refusal to assign the decree. But here he voluntarily consented in the end to make the assignment.

The judgment is affirmed, with costs.  