Daily globe. [volume] (St. Paul, Minn.) 1878-1884, 1878-04-24
SUPREME COURT.
DECISION or cdsE FILED YEsEEE
DAY.

DECISION OF cIsE FILED YEsTEE.
DAY.
John FELTON,, Jr., Respondent, Us. Peter Btssel
administrator Of the estate Of Joseph Basel
deceased; Elizabeth Bissel, Frank 4. Bissel
Anna ". Bissel, Nary r.. Bisse1, Nary A
Bissel, Gertrude Btssel, Catharine Bissel, ana
Mary a. Bissel, respondents.
SYLLABUS.
Where q surety pays tho debt to the cred
itor, neither the debt nor any security given b,
the principal debtor or co-surety, is thereby
extinguished, whether he pay the debt befor,
or after it becomes due. If the debt be ther
due, he becomes by the payment subrogated t.
the rights of the creditor in the debt and secu
rity, both as against the principal debtor ane
his co-surety, SO tar as may be necessary to en-
force indemnity from the one OF contribution
from the other and he may take from the cred
itor an assignment of the debt and securities
both Of the principal debtor and co-surety, fol
that purpose. II he pay the debt before it is due
his right to subrogation becomes perfect when
the debt becomes due. and he may then
take an assignment, or if he have taken out at
the time of paying the debt it operates to vest
in him the legal title as soon as the debt be-
comes due, and he may then for the purpose of
compelling indemnity or contribution, enforce
the debt and securities as assigned.
s. as principal, and F. and B. as sureties,
executed to L. two promisso1y notes to become
due at different dates. and to secure them S.
executed to l.. mortgage with the usual
power of sale upon forty acres belonging to
him, and F. executed to l.. mortgage with
such power upon forty acres belonging to him
<hA GrS< h,,% laf, 4 II.
notes became due; 3. paid the amount of the m
to L., and took from him an assignment of the
notes and mortgages, and before the
second note fell due, proceeded sas assignee
to foreclose both mortgages under the powers
for the amount of both notes and sold first un-
der the foreclosure of the s mortgage for more
than enough to satisfy the note then due and
then under the mortgage sold the land de-
scribed in it for enough to satisfy the second
note, becoming himself the purchaser! In an
note anS the Mortgage naaf ehs adiadeed
satisfied, and the assignment Of the note and
mortgage. and the foreclosure of the + mort
gage, and the certificate there under adjudged
null and void.
Held, that as between B. and F the notes and
mortgages were not extinguished by BIS pay
ment of their amount to L., that by such pay.
ment and the assignment by l.. the lega
title to the note then due and Of
the mortgages SO far as they secured that note
vested in b, as assignee, SO that he could en-
force the same against S. to compel indemnity
or against F, to compel contribution. and thai
the legal title to the note not then due and the
mortgages, SO far as they secured the same, die
not at once vest in 3 as assignee, but under
the assignment. would 80 vest as soon as hi:
right of subrogation should become perfect BY
that note falling due, and that at the time O.
the foreclosure of the F mortgage, the lega
4 Ia 70 he 1ft ho
which the first note, being satisfied by the fore
closure against s, secured, only that note wa
not yet in B. because his right of subrogatior
as to that note had not become perfect, anc
that his foreclosure of that mortgage was void
Judgment ordered modified.
OPINION.
On April l6. 1868, one Steinhauer, as prin
cipal, and Joseph Bissel and plaintiff, as co
sureties, executed to one Latto two promissor,
notes of five hundred dollars each, with inter
est at twelve per cent. per annum, one payabl
October l, 1869, the other October /, 1870, ant
to secure their payments Steinhauer executed t.
Latto mortgage upon forty acres of land be
longing to him, and plaintiff executed mort
gage to Latte upon another forty acres of Ian.
belonging to him, each mortgage contained tn
usual power and was duly recorded. The frs
Of these notes having fallen due, Latte, on tn
10Th day of December 1869, recovered judg
ment against Joseph Bissel and plaintiff fo
the amount then due on that note and tn
costs amounting to $529.57. No execution wa
issued on this judgment, and on December %
1869, Latte, for valuable consideration, pait
him by Bissel released and discharge,
it. on the same day Joseph Bisse
without any request or assent o
plaintiff further than is evidenced by their exc
cution of the notes as co-sureties) paid to Latte
the full amount of the indebtedness secured b,
the notes and mortgages, and in consideration
iii. assigned the mortgages and debts secured b,
them to Joseph Bissel and the assignment
thereof was duly recorded. On the 2lst day O
April, 1870, Joseph Bissel, as assignee of tn
mortv ages foreclosed, each of them under tn
power OF sale contained in it, and at the sales
became the purchaser and received the prope
certificates of sale. The property covered b,
Bissel at the sum of $675.5O, considerably NOR
than was due en- the first debt or judgment
From the order in which the foreclosures ar,
stated by the court below, we assume, and tn
defendants in their points admit to be the fact
that this mortgage was foreclosed. FRS
Bissel then proceeded to sell plaintiffs fort,
acres under the mortgage executed by him, ant
became he purchaser at such sale. It is tn
validity of this latter foreclosure and the stand
ing OF plaintiffs mortgage which this action in
wolves. That as between Bissel and Stien
hauer the debt represented by the first not
was not extingnished by Bissel paying it will
appear presently, and consequently, SO far 1;
the case shows, he had the right to foreclo.
Stienhauer's mortgage to satisfy that debt
The foreclosure satisfied it leaving the secon,
note and the mortgage of plaintiff as securit
for it, as this note is stated by the court below
the interest was not payable till the principa
should become due, to-wit: on October LIST
1870, so that the first note having been satiste
by the Stienhauer foreclosure, there was moth
ing due at the date of the foreclosure agains
plaintiff April 2lst, 1870 upon the debt fo
which his mortgage remained security. Thi
is sufficient to avoid the foreclosure. TIE fore
closure was void for another reason which vii
be apparent when we consider the status an
rights of the parties with respect to the mort
cages and the debts they were given to secure
1t ls necessary for us to do this, because tn
appellants complain that the judgment Of tn
court below is not only erroneous in adiudgin
foreclosure to be void, but also in adjudgin
that the mortgage by plaintiff is paid no longe
lien upon the premises, and directing it to b
Cancelled and in adjudging to be void, the a.
signment from Latto to Bissel.
The only ground upon which the mortgag
is adjudged paid and the assignment by Latt
to Bissel void, is the payment by the latter t
the former OF the amount of the debts at th
time Of the assignment of the debts and mort
cages and of the entry Of satisfaction of tn
judgment. Ordinarily the payment by on
joint debtor extinguishes the debt and dis
charges all collaterals, so that there is nothin
which can pass through an assignment fror
the cred tor. This is the case except which a
a consequence of the payment the right of sui
rogation or substitution arises to prevent th
extinction of the debt and sureties and to kee
them alive for the benefit of the party paying
That surety paying the debt is entitled to b
surrogate as between him and the principa
debtor to all sureties for the debt is both i
of equity Jurisprudence. And although it i
held otherwise in England, in Americ
it is too well settled to requir
citation of authorities, that as betwec,