
    James Campion, Jr., and another vs. J. C. Whitney and others.
    January 27, 1883.
    Release of Mortgage of Surety by Extension of Time to Principal— Effect on Junior Liens. — A land mortgage made by A., as surety for 13., to C., is discharged by an extension granted to 33. by C. without A.’s consent. The discharge is available not only in favor of A., but also in favor of A.’s judgment creditor, whose judgment is a lien upon the mortgaged premises. After the lien has attached, it is not affected by A.’s waiver of the discharge.
    Plaintiffs brought this action in the district court for Olmsted county, to restrain the defendants from foreclosing the mortgage mentioned in the opinion, and asking to have it declared void as against their judgments against defendant Thomas Campion. The action was tried before Start, J., without a jury, and upon the facts found, which are recited in the opinion, judgment was ordered and entered, declaring the mortgage a valid lien for the amount due on it, and the plaintiffs appealed.
    
      Chas. C. Willson, for appellants.
    
      Kellogg & Eaton, for respondents.
    The right of a surety to a release by reason of an extension of time is a personal privilege that must be taken advantage of by the surety himself, or his personal representatives. It only gives the surety an inchoate right which he may take advantage of or waive. A verbal waiver is sufficient. Brandt on Suretyship, §§ 21, 212, 300; Foioler v. Brooks, 13 N. H. 240; Bindskopf v. Doman, 28 Ohio St. 516; Bank v. Johnson, 9 Ala. 622.
   Beery, J.

In March, 1872, Cornelias and Thomas Campion made their note, payable in two years, for $389.46 to Bastían, and, to secure the same, mortgaged to him 80 acres of land, of which Thomas was owner. The note was given for money borrowed of Bastían by Cornelius for his own exclusive use and benefit. By assignment the note and mortgage came to defendant J. C. Whitney. Of the indebtedness secured by the mortgage, $218.19 remains unpaid. In June, 1880, J. C. Whitney, (then owner of the note and mortgage,) through an agent, extended the time of payment of the mortgage debt, by surrendering the note, and taking in its stead a new note, payable in five years, signed by Cornelius alone, and se-sured by a mortgage made by Cornelius and his wife upon the 80 acres of land mentioned, and other lands. At the time of the surrender of the old note and the taking of the new note and mortgage, Whitney’s agent knew that Cornelius Campion was the principal debtor on the original note. Thomas Campion had no knowledge of the extension at the time when it was consummated. Cn July 13, 1880, James Campion, Jr., and on January 13, 1881, John M. Cam-pion, (the two plaintiffs,) recovered judgments against Thomas Cam-pion, which have been duly docketed. Sundry other facts are found, but none which we regard important here. The position of the plaintiffs, in substance, is that the original mortgage is discharged by the extension mentioned, and that, therefore, the liens of their judgments are not subject to the same.

Upon the facts above recited it is clear that Thomas Campion was a surety for Cornelius upon the original note and mortgage, and this being, in legal contemplation, (Lebanon Savings Bank v. Hollenbeck, 29 Minn. 322,) known to J. C. Whitney when he gave the extension without Thomas Campion’s knowledge or consent, it is equally clear that, as between them, the extension operated to discharge Thomas Campion and to discharge his mortgage also. Wheaton v. Wheeler, 27 Minn. 464; Agnew v. Merritt, 10 Minn. 242, (308;) Allis v. Ware, 28 Minn. 166; Brandt on Suretyship, §§ 19-22; Gahn v. Niemcewicz, 11 Wend. 312; Smith v. Townsend, 25 N. Y. 479.

The principal question in the case is whether the discharge inures to the benefit of the plaintiffs as judgment creditors of Thomas Cam-pion, holding liens upon a portion of the mortgaged property, to wit, 50 acres, remaining in him when the judgments were docketed. In our opinion this question must be answered in the affirmative. Their liens bind all the right and interest held by Thomas Campion in the 50 acres when their judgments were docketed. That was a right and interest discharged of the incumbrance of the mortgage. Hence we can conceive of no reason why the plaintiffs do not, to the extent of their liens, stand precisely where Thomas Campion stood at the time when the liens attached, and therefore no reason why their liens are not also free from the incumbrance of the mortgage. While we find no case which in terms supports this proposition, we think that Barnes v. Mott, 64 N. Y. 397, furnishes a valuable analogy as respects the principle involved. See, also, Loomer v. Wheelwright, 3 Sandf. Ch. 148.

But it is said that Thomas Campion might waive the discharge. What would have been the effect of a waiver taking place before the plaintiffs’ liens attached, we have no occasion to consider at this time, none such having been found. As to the waiver said to have occurred after the attaching of the plaintiffs’ liens, it cannot relate so as to impair the valuable rights accruing to plaintiffs from the taking effect of their liens. Stein v. La Dow, 13 Minn. 381, (412.)

The judgment is reversed and the ease remanded, with directions to enter judgment for the plaintiffs in accordance with this opinion. 
      
      Gilfillan, O. J., because of illness, took no part in this case,
     