OlaeksoN, J.
In 38 C. J.,'p. 1366, “Marshaling Assets and Securities,” the following is laid down: “The doctrine of marshaling assets is an old equitable doctrine, founded in natural justice and recognized in every enlightened system of jurisprudence governed entirely by principles of equity, well recognized in this country. It is not an absolute rule of law. In some jurisdictions the doctrine is recognized by force of statute, such statutes being merely declaratory of the general equity rule. Marshaling is not founded on contract, nor is it in any sense a vested right or lien, but rests upon equitable principles only and the discretion of the court.”
Bynum, J., in Jackson v. Sloan, 76 N. C., p. 309, says: “The rule of equity is, that when one creditor can resort to two funds for the satisfaction of his debt, and another to one only of the funds, the former shall first resort to the fund upon which the latter has no claim, as that by this means of distribution both may be paid. And it is an analogous principle of equity that where a debtor whose lands are encumbered by a judgment lien sells one portion of it, the creditor who has a lien upon [517]*517that which is sold and upon that which is unsold, shall be compelled to take his satisfaction out of the undisposed of land, so that thus the creditor and the purchaser both may be saved,” citing authorities. “But this, however, is never done when it trenches on the rights or operates to the prejudice of the party entitled to go upon both funds,” citing authorities. 38 C. J., 1372; Harrington v. Furr, 172 N. C., 610; Brown v. Harding, 170 N. C., 265; Graves v. Currie, 132 N. C., 307; Pope v. Harris, 94 N. C., 62.
“Subrogation is the substitution of one who, under the compulsion of necessity for the protection of his own interest, has discharged a debt for which another is primarily liable, in the place of the creditor, with all the security, benefits and advantages held by the latter with respect to the debt. One of the prerequisites to the exercise of the right is the complete discharge of the debt.” 2 Beach Mod. Eq. Jur., secs. 797 and 798. Liles v. Rogers, 113 N. C., 197; Grainger v. Lindsay, 123 N. C., 216; Fidelity Company v. Jordan, 134 N. C., 241; Blacknall v. Hancock, 182 N. C., 369; Grantham v. Nunn, 187 N. C., 394; Taylor v. Everett, 188 N. C., 264.
In 37 Cyc., p. 370, it is laid down: “Formerly the right of subrogation was limited to transactions between principals and sureties, but it is no longer confined to cases of strict suretyship, but is broad enough to include every instance in which one party is required to pay a debt for which another is primarily answerable, and which, in equity and good conscience, ought to be discharged by the latter, and is the mode which equity adopts to compel the ultimate discharge of the debt by him who, in good conscience, ought to pay it, and to relieve him whom none but the creditor could ask to pay. Thus where two or more persons are equally liable to the creditor, if as between themselves there is a superior obligation resting on one to pay the debt, the other after paying it may use the creditor’s security to obtain reimbursement,” etc. We have given the generally accepted definition of the equity of marshaling and subro-gation.
Defendant, J. C. Jones, administrator, earnestly contends that subro-gation did not apply where there is a remedy at law, and quotes from Gaston, J., in Scott v. Dunn, 21 N. C., 428; “The doctrine of substitution which prevails in equity is not founded on contract, but as we have seen on the principles of natural justice.” W& think this principle of law correct but not applicable on this record. Defendant insists that plaintiff, Page Trust Company, had only a remedy at law. That the introduction of the contract between J. M. Jones and the Page Trust Company of 15 May, 1923, agreeing that the Page Trust Company lien “shall have priority and precedence over the said Jones mortgage,” etc., excepted to by all the defendants, should not have been admitted in [518]*518evidence. But the record shows that although the Bank of Benson excepted, yet it has acquiesced in the judgment of the court below and makes no appeal. Under the facts as now appearing of record, we cannot hold that this was prejudicial to defendant Jones, administrator.
In marshaling assets, the rule does not apply as between debtor and creditor, it applies only as between different creditors. The defendant debtor, Godwin, makes no defense. The contest is between the creditors of Godwin, the Page Trust Company, J. C. Jones, administrator of J. M. Jones, and the Bank of Benson. All the parties are before the Court. Under our liberal practice, complete justice may and should be done in this action by the record now before us. Multiplicity of suits should not be allowed where justice can be done in one. Our Constitution in part says: Art. IN, sec. 1 r “The distinction between actions at law and suits in equity and the forms of all such actions and suits shall be abolished, and there shall be in this State, but one form of action for the enforcement or protection of private rights or the redress of private wrongs, which shall be denominated a ‘civil action,’” etc. Distinction between and forms of action at law and suits in equity are abolished under our Constitution, but does not destroy equitable rights and remedies nor does it merge legal and equitable rights. Furst v. Merritt, ante, 397; Waters v. Garris, 188 N. C., p. 310.
The record now before us shows: That Godwin owes the debts. He is the debtor. He made (1) to secure bonds aggregating $10,000, a deed in trust on 122 acres of land in Cumberland County for the benefit of plaintiff, Page Trust Company; (2) to secure $4,000 bond, a mortgage to J. M. Jones on the same land. J. M. Jones is dead and J. C. Jones is his administrator. J. M. Jones in. his lifetime, transferred his $4,000 note, secured by mortgage, to the Bank of Benson before maturity and guaranteed the payment. The bank was an innocent purchaser for value. The $4,000 lien was registered first, giving the Bank of Benson the first lien, and the $10,000 lien was registered subsequently. Sometime afterwards, J. M. Jones signed a paper-writing, which we construe to be a contract, that the $10,000 lien should have had priority and precedence over the $4,000 lien he had assigned to the Bank of Benson and the lien of the bank should be a subsequent encumbrance. The Bank of Benson, a defendant, by way of cross-action, demanded judgment against J. O. Jones, administrator of J. M. Jones, upon the endorsement and guaranty of the $4,000 note secured by mortgage. From the language on the back of the note: “We as endorsers, for value received, hereby guarantee the payment,” etc., whether the judgment against Jones, administrator, as endorser and guarantor both was correct or not, is immaterial. Treated as a guarantor, defendant Jones, administrator, contends it was error; that Jones’ liability ceased when it was [519]*519made to appear that tbe Bank of Benson bad sufficient security witb which to pay the indebtedness due it. We cannot so hold.
In Carpenter v. Wall, 20 N. C., p. 279, Daniel, J., defines a guaranty as follows: “A guaranty is a promise to answer for the payment of some debt, or the performance of some duty, in case of the failure of another person who is himself in the first instance liable to such payment or performance. Fell on Guaranties, 1; Smith on Mercantile Law, 277.” Beecker v.
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OlaeksoN, J.
In 38 C. J.,'p. 1366, “Marshaling Assets and Securities,” the following is laid down: “The doctrine of marshaling assets is an old equitable doctrine, founded in natural justice and recognized in every enlightened system of jurisprudence governed entirely by principles of equity, well recognized in this country. It is not an absolute rule of law. In some jurisdictions the doctrine is recognized by force of statute, such statutes being merely declaratory of the general equity rule. Marshaling is not founded on contract, nor is it in any sense a vested right or lien, but rests upon equitable principles only and the discretion of the court.”
Bynum, J., in Jackson v. Sloan, 76 N. C., p. 309, says: “The rule of equity is, that when one creditor can resort to two funds for the satisfaction of his debt, and another to one only of the funds, the former shall first resort to the fund upon which the latter has no claim, as that by this means of distribution both may be paid. And it is an analogous principle of equity that where a debtor whose lands are encumbered by a judgment lien sells one portion of it, the creditor who has a lien upon [517]*517that which is sold and upon that which is unsold, shall be compelled to take his satisfaction out of the undisposed of land, so that thus the creditor and the purchaser both may be saved,” citing authorities. “But this, however, is never done when it trenches on the rights or operates to the prejudice of the party entitled to go upon both funds,” citing authorities. 38 C. J., 1372; Harrington v. Furr, 172 N. C., 610; Brown v. Harding, 170 N. C., 265; Graves v. Currie, 132 N. C., 307; Pope v. Harris, 94 N. C., 62.
“Subrogation is the substitution of one who, under the compulsion of necessity for the protection of his own interest, has discharged a debt for which another is primarily liable, in the place of the creditor, with all the security, benefits and advantages held by the latter with respect to the debt. One of the prerequisites to the exercise of the right is the complete discharge of the debt.” 2 Beach Mod. Eq. Jur., secs. 797 and 798. Liles v. Rogers, 113 N. C., 197; Grainger v. Lindsay, 123 N. C., 216; Fidelity Company v. Jordan, 134 N. C., 241; Blacknall v. Hancock, 182 N. C., 369; Grantham v. Nunn, 187 N. C., 394; Taylor v. Everett, 188 N. C., 264.
In 37 Cyc., p. 370, it is laid down: “Formerly the right of subrogation was limited to transactions between principals and sureties, but it is no longer confined to cases of strict suretyship, but is broad enough to include every instance in which one party is required to pay a debt for which another is primarily answerable, and which, in equity and good conscience, ought to be discharged by the latter, and is the mode which equity adopts to compel the ultimate discharge of the debt by him who, in good conscience, ought to pay it, and to relieve him whom none but the creditor could ask to pay. Thus where two or more persons are equally liable to the creditor, if as between themselves there is a superior obligation resting on one to pay the debt, the other after paying it may use the creditor’s security to obtain reimbursement,” etc. We have given the generally accepted definition of the equity of marshaling and subro-gation.
Defendant, J. C. Jones, administrator, earnestly contends that subro-gation did not apply where there is a remedy at law, and quotes from Gaston, J., in Scott v. Dunn, 21 N. C., 428; “The doctrine of substitution which prevails in equity is not founded on contract, but as we have seen on the principles of natural justice.” W& think this principle of law correct but not applicable on this record. Defendant insists that plaintiff, Page Trust Company, had only a remedy at law. That the introduction of the contract between J. M. Jones and the Page Trust Company of 15 May, 1923, agreeing that the Page Trust Company lien “shall have priority and precedence over the said Jones mortgage,” etc., excepted to by all the defendants, should not have been admitted in [518]*518evidence. But the record shows that although the Bank of Benson excepted, yet it has acquiesced in the judgment of the court below and makes no appeal. Under the facts as now appearing of record, we cannot hold that this was prejudicial to defendant Jones, administrator.
In marshaling assets, the rule does not apply as between debtor and creditor, it applies only as between different creditors. The defendant debtor, Godwin, makes no defense. The contest is between the creditors of Godwin, the Page Trust Company, J. C. Jones, administrator of J. M. Jones, and the Bank of Benson. All the parties are before the Court. Under our liberal practice, complete justice may and should be done in this action by the record now before us. Multiplicity of suits should not be allowed where justice can be done in one. Our Constitution in part says: Art. IN, sec. 1 r “The distinction between actions at law and suits in equity and the forms of all such actions and suits shall be abolished, and there shall be in this State, but one form of action for the enforcement or protection of private rights or the redress of private wrongs, which shall be denominated a ‘civil action,’” etc. Distinction between and forms of action at law and suits in equity are abolished under our Constitution, but does not destroy equitable rights and remedies nor does it merge legal and equitable rights. Furst v. Merritt, ante, 397; Waters v. Garris, 188 N. C., p. 310.
The record now before us shows: That Godwin owes the debts. He is the debtor. He made (1) to secure bonds aggregating $10,000, a deed in trust on 122 acres of land in Cumberland County for the benefit of plaintiff, Page Trust Company; (2) to secure $4,000 bond, a mortgage to J. M. Jones on the same land. J. M. Jones is dead and J. C. Jones is his administrator. J. M. Jones in. his lifetime, transferred his $4,000 note, secured by mortgage, to the Bank of Benson before maturity and guaranteed the payment. The bank was an innocent purchaser for value. The $4,000 lien was registered first, giving the Bank of Benson the first lien, and the $10,000 lien was registered subsequently. Sometime afterwards, J. M. Jones signed a paper-writing, which we construe to be a contract, that the $10,000 lien should have had priority and precedence over the $4,000 lien he had assigned to the Bank of Benson and the lien of the bank should be a subsequent encumbrance. The Bank of Benson, a defendant, by way of cross-action, demanded judgment against J. O. Jones, administrator of J. M. Jones, upon the endorsement and guaranty of the $4,000 note secured by mortgage. From the language on the back of the note: “We as endorsers, for value received, hereby guarantee the payment,” etc., whether the judgment against Jones, administrator, as endorser and guarantor both was correct or not, is immaterial. Treated as a guarantor, defendant Jones, administrator, contends it was error; that Jones’ liability ceased when it was [519]*519made to appear that tbe Bank of Benson bad sufficient security witb which to pay the indebtedness due it. We cannot so hold.
In Carpenter v. Wall, 20 N. C., p. 279, Daniel, J., defines a guaranty as follows: “A guaranty is a promise to answer for the payment of some debt, or the performance of some duty, in case of the failure of another person who is himself in the first instance liable to such payment or performance. Fell on Guaranties, 1; Smith on Mercantile Law, 277.” Beecker v. Saunders, 28 N. C., 380; Spencer v. Carter, 49 N. C., 287; Carter v. McGehee, 61 N. C., 431; Coleman v. Fuller, 105 N. C., 328, 329; Cowan v. Roberts, 134 N. C., 415; Grocery Company v. Early, 181 N. C., 459.
Shepherd, J., in Jenkins v. Wilkinson, 107 N. C., 709, says: “There is plain distinction between a guaranty of payment and a guaranty of collection. ‘The former is an absolute promise to pay the debt at maturity, if not paid by the principal debtor, and the guarantee may begin an action against the guarantor. The latter is a promise to pay the debt upon the condition that the guarantee shall diligently prosecute the principal debtor without success.’ Jones v. Ashford, 79 N. C., 173 and Baylie’s Sureties and Guarantors, 113.” Hutchins v. Bank, 130 N. C., 285; Cowan v. Roberts, supra; Voorhees v. Porter, 134 N. C., 601.
28 G. J., p. 895, says: “An absolute guaranty is one by which the guarantor unconditionally promises payment or performance of the principal contract on default of the principal debtor or obligor, the most usual form of an absolute guaranty being that of payment, ‘such as of the payment of commercial paper; but an absolute guaranty of performance is placed on the same ground, and subject to the same rules, as a guaranty of payment. A guaranty is deemed to be absolute unless its terms import some condition precedent to the liability of the guarantor. In order to bind the guarantor under an absolute guaranty it is not necessary that there should be notice of acceptance of the guaranty, or notice of the default of the principal, or that any steps should be taken to enforce the contract guaranteed against the principal, and the fact that these acts are not necessary in order to bind the guarantor distinguishes an absolute guaranty from a conditional guaranty, in which case these acts are a prerequisite to holding the conditional guarantor liable.”
It is well settled that a guarantor of the payment of a note, as in the present case, may be sued at any time after default by the party'for whom the guaranty was made. It was not incumbent, under .J. M. Jones’ guaranty, for the Bank of Benson to first resort to the security and sell under the mortgage. The judgment of the Bank of Benson against J. 0. Jones, administrator of J. M. Jones, was correct. From the record we have the status of the parties fixed: The Bank of Benson (1) [520]*520a judgment against J. C. Jones, administrator of J. M. Jones, for $4,000; (2) a mortgage on 122 acres of land to secure tbe $4,000 debt. Page Trust Company, a lien debt for $10,000 on tbe 122 acres of land, subject to tbe Bank of Benson debt, and under tbe J. M. Jones contract a priority and precedence over tbe Bank of Benson debt.
In 38 C. J., p. 1371, it is said: “Tbe operation of tbe principle of marshaling is not affected by tbe nature of tbe property wbicb constitutes tbe double fund, but applies whenever a paramount creditor bolds collateral security, or can resort collaterally to other real or personal estate for tbe satisfaction of tbe debt. However, an imperfect personal obligation, that is, one that cannot be enforced by suit, is not a security wbicb can be marshaled. . . . As a general rule, before tbe doctrine of marshaling assets will be applied, there must be two funds or properties, at tbe time tbe equitable relief is sought, belonging to tbe common •debtor of both creditors, on both of which funds one party has a claim or lien, and on one only of wbicb tbe other party has a claim or lien.”
.Although strictly speaking tbe judgment against J. C. Jones, administrator of J. M. Jones, does not constitute a fund, yet plaintiff, Page Trust Company, under tbe priority contract with J. M. Jones, would be entitled to judgment against J. C. Jones, administrator of J. M. Jones, and tbe Bank of Benson has a judgment for tbe amount in this suit. All parties being before tbe Court analogous to marshaling, we think natural justice, equity and good conscience require that tbe judgment of tbe court below should not be disturbed. Exact justice has been done all tbe parties before tbe Court — that is tbe fundamental principle of equity. We do not think tbe taxing of cost in tbe court below was prejudicial.
Tbe judgment below is
Affirmed.