Spencer, Ch. J.
The ground on which the bill prayed relief, is, that the appellant having, as is alleged, abundant .and ample security in his hands, for the amount of the debt due on the bond and mortgage, must resort to that fund to reimburse himself, for that portion of the debt; and that then he stands, as á trustee for the respondents, for the amount he has-collected out of the property of G. Booth, ob [491]*491the execution issued on the judgment thus confessed; which is 3,167 dollars and 56 cents.
It has been, also, contended, that inasmuch as the appellant had assigned the bond and mortgage to the executors of JY. Evertson, he had no interest in that debt; and that, therefore, the judgment confessed by if. Booth can avail the appellant only so far as regards the two notes held by the bank.
, His Honour the Chancellor has, by his decree, declared, that the bond and warrant of attorney by G. Booth, was given as well to secure the note for 440 dollars, given by Gr. Booth, and endorsed by the appellant, and the amount of the note for 1,400 dollars, given by G. Booth, and endorsed by the other respondents, and the appellant, as to secure the amount of the bond conditioned to pay 6,000 dollars ; and that the proceeds of the judgment entered up on the bond and warrant of attorney in favour of the appellant, against G. Booth, ought to be applied; first, to satisfy the note of 440 dollars, and next, to satisfy the note for .1,400 dollars, and the residue to be applied towards satisfaction of the bond for 6,000 dollars; and he decreed accordingly. In assigning thé reasons for his decree, the Chancellor considered the respondents, R. Booth, Bosworth, and Merkle> as having a right to affirm and enforce the trust assumed by the appellant, in taking the security from G. Booth for the payment of the note for 1,400 dollars, although they were not knowing or assenting to the giving the same; and that, inasmuch as the debt due on the bond for 6,000 dollars was fully and amply secured, the appellant ought to be thrown on the mortgage; and that, therefore, he ought not to apply the moneys collected oh his judgment towards satisfaction of that debt, or any part of it.
The bill alleges, that the mortgage to the appellant, notwithstanding the prior mortgage to the State, was ample and sufficient security for the bond of 6,000 dollars. This fact is denied by the answer, which asserts, that the mortgaged premises have not, at any time, been worth the amount of the two mortgages; and that the premises have been greatly diminished in value since the execution of the mortgage to the appellant. That the interest on the first [492]*492mortgage has not been paid up; that the appellant always considered the mortgage to him an inadequate security, and dial G. Booth, as part of the contract, for giving and accepting the mortgage, agreed to procure a policy of insurance (-0 |je effectéd on the buildings and factory, and to assign the same to the appellant; that a policy was effected for one year, but that Booth has subsequently neglected to have the same renewed. The answer denies, that the bond and warrant of attorney given by G. Booth to the appellant, was given upon any trust for the respondents; but asserts that they were given solely to secure and indemnify the appellant. ' "
Testimony was taken as to the value of the property embraced by the appellant’s mortgage, and the witnesses differ widely in their estimates; but the weight of evidence decidedly is, that the premises are an inadequate security for the mortgages to the State, and to the appellant.
The Chancellor has, undoubtedly, considered the bond and warrant of attorney to confess judgment given by G. Booth to the appellant, as enuring, in the first place, to the appellant’s benefit, and he has, accordingly,’ directed the proceeds of the judgment to be first applied to the payment of the note for 440 dollars, of which the appellant was the sole endorser. He has considered it, also, as a security for the bond for 6,000. dollars; or, in other words, for the mortgage debt; and, as has been already stated, as a security for the note of 1,400 dollars, endorsed by R. Booth, Bosworth, Merlcle, and the appellant; but he has given a preference to the respondents, by directing the .pmount levied on the execution against G. Booth, to be applied to the payment of the note for 1,400 dollars, before any part of it be applied to the payment of the bond for 6.000 dollars. ■
I yield my entire assent to the proposition, that where a party has two funds out of which he can satisfy his debtj’ and another creditor has a lien, posterior in point of time, on one of the funds only, the first creditor will, in equity, be compelled-to resort to that fund which the junior creditor cannot touch, in order that the junior creditor may avail himself of his only security, where it can be done without-[493]*493injustice or injury to the debtor or creditor. This principie, which is so equitable and just, was thus illustrated by Lord Hardwicke in Lanoy v. The Duke and Dutchess of Athol. (2 Atk. 446.) Suppose, he said, a person who has two real estates, mortgages both, to one person, and, after-wards, only one estate to a second mortgagee, the Court, in order to relieve the second mortgagee, have directed the first to take his satisfaction out of that estate only, which is not included in the mortgage to the second mortgagee, if that is sufficient to satisfy the first mortgage, in order to make room for the second mortgagee. The same principle was adopted in Wright v. Nutt, (1 H. Bl. 150.) and in Hays v. Ward, (4 Johns. Ch. Rep. 132.) and in several other cases.
But a Court of equity will take care not to give the junior creditor this relief, ifit will endanger thereby, the priorcredii- or, or in the least impair his prior right to raise his debt out of both funds. The utmost that equity enjoins in such a case is, that the creditor who has a prior right to two funds, shall first exhaust that to which the junior creditor cannot resort; but where there exists any doubt of the sufficiency of that fund, or even where the prior creditor is not willing to run the hazard of getting payment out of that fund, I know of no principle of equity which can take from him any part of his security, until he is completely satisfied. If these principles be applied to the present ease, the respondents, by making the executors of N Evertson parties, might have invoked the aid of the Court of Chancery, to compel them to proceed and sell under the mortgage assigned to them, and, also, to compel the appellant to apply towards that mortgage, the amount raised on the execution against G, Booth, after first satisfying the note for 440 dollars.
They had, also, another remedy; they might have offered to pay up the mortgage assigned to the executors of N. Evertson, after compelling the appellant to pay the assignees the surplus in his hands, after first satisfying the note for 440 dollars, and thus, substituting themselves in the place of the assignees of the mortgage, have availed themselves of all the rights both of the appellants and the assignees.
I do not understand the Chancellor to have proceeded on principles in the least irreconcilable with those I have [494]*494advanced. Indeed, the decree, itself, professes to adopt these very principles.
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Spencer, Ch. J.
The ground on which the bill prayed relief, is, that the appellant having, as is alleged, abundant .and ample security in his hands, for the amount of the debt due on the bond and mortgage, must resort to that fund to reimburse himself, for that portion of the debt; and that then he stands, as á trustee for the respondents, for the amount he has-collected out of the property of G. Booth, ob [491]*491the execution issued on the judgment thus confessed; which is 3,167 dollars and 56 cents.
It has been, also, contended, that inasmuch as the appellant had assigned the bond and mortgage to the executors of JY. Evertson, he had no interest in that debt; and that, therefore, the judgment confessed by if. Booth can avail the appellant only so far as regards the two notes held by the bank.
, His Honour the Chancellor has, by his decree, declared, that the bond and warrant of attorney by G. Booth, was given as well to secure the note for 440 dollars, given by Gr. Booth, and endorsed by the appellant, and the amount of the note for 1,400 dollars, given by G. Booth, and endorsed by the other respondents, and the appellant, as to secure the amount of the bond conditioned to pay 6,000 dollars ; and that the proceeds of the judgment entered up on the bond and warrant of attorney in favour of the appellant, against G. Booth, ought to be applied; first, to satisfy the note of 440 dollars, and next, to satisfy the note for .1,400 dollars, and the residue to be applied towards satisfaction of the bond for 6,000 dollars; and he decreed accordingly. In assigning thé reasons for his decree, the Chancellor considered the respondents, R. Booth, Bosworth, and Merkle> as having a right to affirm and enforce the trust assumed by the appellant, in taking the security from G. Booth for the payment of the note for 1,400 dollars, although they were not knowing or assenting to the giving the same; and that, inasmuch as the debt due on the bond for 6,000 dollars was fully and amply secured, the appellant ought to be thrown on the mortgage; and that, therefore, he ought not to apply the moneys collected oh his judgment towards satisfaction of that debt, or any part of it.
The bill alleges, that the mortgage to the appellant, notwithstanding the prior mortgage to the State, was ample and sufficient security for the bond of 6,000 dollars. This fact is denied by the answer, which asserts, that the mortgaged premises have not, at any time, been worth the amount of the two mortgages; and that the premises have been greatly diminished in value since the execution of the mortgage to the appellant. That the interest on the first [492]*492mortgage has not been paid up; that the appellant always considered the mortgage to him an inadequate security, and dial G. Booth, as part of the contract, for giving and accepting the mortgage, agreed to procure a policy of insurance (-0 |je effectéd on the buildings and factory, and to assign the same to the appellant; that a policy was effected for one year, but that Booth has subsequently neglected to have the same renewed. The answer denies, that the bond and warrant of attorney given by G. Booth to the appellant, was given upon any trust for the respondents; but asserts that they were given solely to secure and indemnify the appellant. ' "
Testimony was taken as to the value of the property embraced by the appellant’s mortgage, and the witnesses differ widely in their estimates; but the weight of evidence decidedly is, that the premises are an inadequate security for the mortgages to the State, and to the appellant.
The Chancellor has, undoubtedly, considered the bond and warrant of attorney to confess judgment given by G. Booth to the appellant, as enuring, in the first place, to the appellant’s benefit, and he has, accordingly,’ directed the proceeds of the judgment to be first applied to the payment of the note for 440 dollars, of which the appellant was the sole endorser. He has considered it, also, as a security for the bond for 6,000. dollars; or, in other words, for the mortgage debt; and, as has been already stated, as a security for the note of 1,400 dollars, endorsed by R. Booth, Bosworth, Merlcle, and the appellant; but he has given a preference to the respondents, by directing the .pmount levied on the execution against G. Booth, to be applied to the payment of the note for 1,400 dollars, before any part of it be applied to the payment of the bond for 6.000 dollars. ■
I yield my entire assent to the proposition, that where a party has two funds out of which he can satisfy his debtj’ and another creditor has a lien, posterior in point of time, on one of the funds only, the first creditor will, in equity, be compelled-to resort to that fund which the junior creditor cannot touch, in order that the junior creditor may avail himself of his only security, where it can be done without-[493]*493injustice or injury to the debtor or creditor. This principie, which is so equitable and just, was thus illustrated by Lord Hardwicke in Lanoy v. The Duke and Dutchess of Athol. (2 Atk. 446.) Suppose, he said, a person who has two real estates, mortgages both, to one person, and, after-wards, only one estate to a second mortgagee, the Court, in order to relieve the second mortgagee, have directed the first to take his satisfaction out of that estate only, which is not included in the mortgage to the second mortgagee, if that is sufficient to satisfy the first mortgage, in order to make room for the second mortgagee. The same principle was adopted in Wright v. Nutt, (1 H. Bl. 150.) and in Hays v. Ward, (4 Johns. Ch. Rep. 132.) and in several other cases.
But a Court of equity will take care not to give the junior creditor this relief, ifit will endanger thereby, the priorcredii- or, or in the least impair his prior right to raise his debt out of both funds. The utmost that equity enjoins in such a case is, that the creditor who has a prior right to two funds, shall first exhaust that to which the junior creditor cannot resort; but where there exists any doubt of the sufficiency of that fund, or even where the prior creditor is not willing to run the hazard of getting payment out of that fund, I know of no principle of equity which can take from him any part of his security, until he is completely satisfied. If these principles be applied to the present ease, the respondents, by making the executors of N Evertson parties, might have invoked the aid of the Court of Chancery, to compel them to proceed and sell under the mortgage assigned to them, and, also, to compel the appellant to apply towards that mortgage, the amount raised on the execution against G, Booth, after first satisfying the note for 440 dollars.
They had, also, another remedy; they might have offered to pay up the mortgage assigned to the executors of N. Evertson, after compelling the appellant to pay the assignees the surplus in his hands, after first satisfying the note for 440 dollars, and thus, substituting themselves in the place of the assignees of the mortgage, have availed themselves of all the rights both of the appellants and the assignees.
I do not understand the Chancellor to have proceeded on principles in the least irreconcilable with those I have [494]*494advanced. Indeed, the decree, itself, professes to adopt these very principles. The Chancellor has fallen, as I conce¡ve, into a mistake as to facts. He supposed, that there was no doubt, that the premises mortgaged were an abunjant an(i ampie security for the payment of both mortgages, whereas the fact is rendered not only doubtful, but almost certain, that the mortgaged premises are inadequate to pay ' the principal and interest of both mortgages. In that event, the decree, as it stands, deprives the appellant of the means, of satisfying the mortgage in the hands of the executors of JV*. Evertson, the assignees of the appellant, and leaves him exposed, under his guaranty, to pay whatever the premises may fall short of satisfying the mortgage. I am persuaded, the Chancellor never intended thus to expose the appellant, nor thtfs to deprive him of the security which he has fairly and honestly acquired.
The counsel for the respondents defended the decree, on a ground not taken by the Chancellor, and on a ground which the decree itself rejects : namely, that the appellant having assigned the bond and mortgage for 6,000 dollars, to the executors of JV*. Evertson, ceased to have any interest in if, and had no right to take the further security of a judgment, as his indemnity for the payment of the debt. It is true, that by the assignment, the debt became due in equity to the assignees ; and O. Booth, having notice of the assignment, could not pay the debt to the appellant, to the prejudice of the assignees. But it is not correct to say, that the appellant had no interest in the debt, or its payment by Booth. He had guaranteed the payment, and stood answerable for Booth’s default. He had a right, therefore, to take additional security from him, and such security enured to the benefit of the assignees; and, in a view of a Court of equity, they were as fully entitled to the benefit of that security, although they were ignorant of its being taken, as the respondents were, as regards the note for 1,400 dollars. But the appellant himself, having fairly acquired this additional security, had a right to hold it, until he was completely indemnified against his responsibility under his guaranty. If the respondents desired "to coerce the assignees of the mortgage to resort to that fund, and to exhaust it in. [495]*495the event of its producing enough to satisfy the mortgage for 6,000 dollars, then their equity to compel the appellant to apply the moneys in his hands to the satisfaction of the note for 1,400 dollars, would have been undoubted.
The executors of J\C Evertson, who aré assignees of the mortgage, have act been made parties. They have not only a material interest in the subject matter of this suit, but no decree can be made to compel a sale under.> the mortgage, unless they are made parties, for they have the legal and equitable interest in the mortgage. The appellant cannot proceed to a sale under the mortgage, unless he shall be re-invested with his original interest in it.
The present bill is not adapted to such a case. The respondents have neither offered to pay up the mortgage, and become substituted in the place of the assignees ; nor have they required, that the mortgaged premises should be sold, in order to ascertain whether the security of the mortgage is adequate to pay the debt. G. Booth, undoubtedly, has a right to require the appellant to apply the moneys raised on the execution, after satisfying the note for 440 dollars, in the event, that the appellant will not be called on, as endorser of the note, for 1,400 dollars, towards satisfying the mortgage. But the bill is not framed with any such intent, nor has any such relief been asked for by the bill, or denied by the appellant.
My conclusion, then, is, that the decree proceeds on a mistake of facts, in relation to the sufficiency of the mortgaged premises to pay both mortgages ; and that there is a want of necessary and material parties; and, finally, that the bill is not so framed, that any relief can be afforded to the respondents; and that, consequently, the decree must be reversed, with directions to the Court of Chancery to dismiss the bill with costs.
Yates, J. Van Ness, J. Platt, J. and Woodworth, J. concurred.
The rest of the Court (except Miles and Mooers, Senators) being of the same opinion: It was, thereupon, order[496]*496ed, adjudged, and decreed, that the decree of the Court of Chancery be reversed, &cc.
Decree of reversal.