Marsh v. Pike , 10 Paige Ch. 595 ( 1844 )

The Chancellor.

The facts in this case are not disputed j and the only question is whether the complainant was entitled to the relief granted as against the defendant Towle, upon these facts : In January, 1839, the complainant, who was the owner of lot No. 29, Fourth-street, in the city of New-York, gave to the defendant Pike his bond, conditioned for the payment of $3000 in three years, with interest thereon, payable semi-annually. In April, 1841, the complainant conveyed the mortgaged premises to the defendant McLean, subject to the mortgage, the amount of which was deducted from the purchase money, and which mortgage McLean agreed with the complainant to pay off and discharge. And in August of the same year McLean sold the premises to the defendant Towle, subject to the mortgage as a part of the consideration of the conveyance, and which mortgage Towle agreed to pay off and satisfy. After the mortgage became due, the complainant called upon Towle to pay off and satisfy the bond and mortgage, so as to relieve him from his responsibility upon his bond ; but he neglected to do so. The effect of these several conveyances and agreements is, in equity, to place the complainant in the stituation of a surety for the payment of the bond and mortgage, and to make the defendants Towle and McLean the principal debtors as to him; the first being primarily and the latter secondarily liable to him for the payment of the debt.

The complainant, therefore, if he had paid the bond and mortgage to Pike, would have been entitled to be substited in Pike’s place, not only as to the remedy against the land but also as to the equitable claim against McLean and Towle who had agreed to pay off the mortgage. This, however, was not his only remedy ; although the assistant vice chancellor rightly decided that the complainant could not compel his creditor to file a bill of foreclosure against the persons to whom the premises were subsequently conveyed, when there was no good reason why the complainant did not pay his bond according to his agreement, and take an assignment of the bond and mortgage, and proceed against the land and the subsequent grantees thereof, for his indemnity. For Marsh has the right to come into this court to compel such subsequent grantees, as to whom he is in the situation of a mere surety, to pay off and discharge the debt for his protection and indemnity. (Warner v. Beardsley, 8 Wend. 199. Lee v. Rook, Mose. Rep. 318. Ranelaugh v. Hayes, 1 Vern. Rep. 130.) Here, it is true, McLean was the person who had agreed directly with the complainant to pay off and discharge the mortgage, for his protection and indemnity. But as Towle the appellant had ^entered into a similar agreement with McLean, and was moreover the owner of the mortgaged premises, he was properly joined in the suit. And the decree was right in giving to McLean a remedy over against Towle who was in justice and equity bound to pay off and discharge the debt, as between himself and all the other parties to the suit.

The part of the decree which is appealed from is therefore affirmed, with' costs.