Cowan & Oates, contra.
1. The equity of the bill rests on the doctrine of subrogation, and it was not necessary that the complainant should have exhausted his legal remedies. Toulmin v. Hamilton, 7 Ala. 362; Troy v. Smith & Shields, 33 Ala. 469; Moses v. Murgatroyd, 1 Johns. Ch. 118.
2. The bill shows the impracticability of requesting defendant Banks to join as a complainant, his whereabouts being unknown.
3. As to the misjoinder of Banks as a party defendant, the other defendants cannot take advantage of the objection. Robison v. Robison, 44 Ala. 269.
4. If either the estate of Eubanks, or Thomas P. Saffold, suffers any injury from the decree, it is not the complainant’s fault. It was the duty of said Saffold under the circum[218]*218stances, to furnish the necessary information to complainant. 19 Ala. 121, 691; 27 Ala. 618; 16 Ala. 364.
5. Mrs. Ann Saffold is not a purchaser for valuable consideration, within the meaning of the statute. Wells v. Morrow, 38 Ala. 125; Dickerson v. Tillinghast, 4 Paige, 214.
BRICKELL, J.
We may dismiss from consideration the allegations of the bill as to the provisions of the constitution and the decisions of the courts of Georgia, with the remark, that they furnish no sufficient ground on which a court of equity in this State Can afford the complainant relief. The jurisdiction of the courts of equity in this State, so far as dependent on the existence or absence of legal remedies, must be determined in view of the remedies afforded by our laws, and not by the laws of another State.
We may dismiss from consideration, also, the complainant’s right to relief, so far as it depends on the allegations of fraud in the conveyance of the land by William O. Saffold to his mother, Mrs. Ann Saffold; because these allegations are fully denied in the answers, and are wholly unsupported by proof. This leaves the case to be considered in the single aspect of the complainant’s right to be subrogated to, and to foreclose, the mortgage given by said William O. Saffold to his surety, Thomas P. Saffold, to indemnify him against the payment of the debt owing by them to the complainant.
Subrogation is, exclusively and purely, the creature of a court of equity. When a security is given by the principal debtor, for the ease and indemnity of his surety against the liability to the common creditor, a trust is created, in the contemplation of a court of equity, for the better protection of the debt, which both principal and surety are bound to pay. Subrogating the creditor to the rights of the surety relieves him from the vexation of suit, and from the necessity of resorting for redress to the security furnished, or to the principal debtor. The liability of the principal is thereby extinguished, to the extent to which "the security can be made available, and complete justice is done to all parties in interest. Moses v. Murgatroyd, 1 Johns. Ch. 119; 1 Leading Cases in Equity, 163; Toulmin v. Hamilton, 7 Ala. 363; Ohio Life Ins. & Trust Co. v. Ledyard, 8 Ala. 866; Br. Bank at Mobile, v. Robertson, 19 Ala. 779; Troy v. Smith & Shields, 33 Ala. 469.
2. The judgment obtained by the complainant in Georgia, against the principal debtor and his "surety, does not entitle him to seek any other relief in the courts of equity of this State than such as those courts can accord to general creditors. He is not a creditor who has exhausted his legal remedies, or who has acquired a legal lien, the obstruction of which a court [219]*219of equity will intervene to prevent. No priority of lien, or capacity of execution, attaches here to such a judgment. It is a mere cause of action, protected, as matter of evidence, by the provision of the constitution of the United States, that full faith and credit — the credit which attached to it in the State in which it was taken — shall be here given to it as evidence.
3. But a judgment, or the exhaustion of legal remedies, is not essential to the creditor’s right of subrogation. The creditor, asserting this right, .asks only the enforcement of a trust enuring to his benefit. The trust attaches only to the particular debt, and adheres to it, without regard to the form it may assume. No other creditor than the holder of the debt can appropriate the subject of the trust. A court of equity only can enforce the trust, and its enforcement lies within the original jurisdiction of that court. A court of law has no process or remedy adapted or adequate to the creditor’s relief. Therefore, the complainant, though only a general creditor, has a right to the enforcement of this trust, without reducing his debt to judgment at law, or the pursuit or exhaustion of legal remedies. Toulmin v. Hamilton, supra.
4. There is, however, a fatal error in the decree in this aspect of the case. The mortgage security, to which the complainant prays subrogation, is averred to have been made equally for the indemnity of the surety against his liability to complainant, and a similar liability to Thomas (or Francis) A. Banks, administrator of the estate of Thomas Eubanks, deceased. The existence and validity of this latter debt are not assailed by the pleading, nor in the least impugned by the evidence. Banks is made a party defendant by publication, and a decree pro eonfesso is taken against him. It is not averred that he has ever waived, or refused to recognize, the trust which the law raised in his favor. He has, therefore, the same equity the complainant asserts. Yet, a decree is rendered, directing a sale of the mortgaged estate, and the application of the proceeds of sale, exclusively to the debt of the complainant. In this, the court erred, in the present state of the pleadings and proof. The decree should have directed the application to the payment of both debts, according to their respective amounts.
5. The mortgage, to which the complainant seeks subrogation, was made on the 15th of March, 1866, but it was not recorded, or filed for record, until the 28th day- of May, 1866. On the 27th April, 1866, the mortgagor made an absolute conveyance of the mortgaged premises to the defendant Ann Saffold, in part payment of a preexisting debt; and this conveyance was recorded on the 30th April, 1866, before the registration or filing for registration of the mortgage. It is [220]*220averred in the bill, that Mrs. Ann Saffold had, at the making of the conveyance, notice of the mortgage. This averment is denied fully in her answer, and the only evidence on the point supports the answer, and contradicts the averment of the bill. The mortgage was made as a security for antecedent debts of the mortgagor; and the consideration of the absolute conveyance is an antecedent debt, due from the mortgagor to the grantee.
The statutes provide: “ Conveyances of unconditional estates and mortgages, or instruments in the nature of a mortgage, of real property, to secure any debt created at the date thereof, are void, as to purchasers for a valuable consideration, mortgagees, and judgment creditors, having no notice thereof, unless recorded within three months from their date.” R. C. § 1557.
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Cowan & Oates, contra.
1. The equity of the bill rests on the doctrine of subrogation, and it was not necessary that the complainant should have exhausted his legal remedies. Toulmin v. Hamilton, 7 Ala. 362; Troy v. Smith & Shields, 33 Ala. 469; Moses v. Murgatroyd, 1 Johns. Ch. 118.
2. The bill shows the impracticability of requesting defendant Banks to join as a complainant, his whereabouts being unknown.
3. As to the misjoinder of Banks as a party defendant, the other defendants cannot take advantage of the objection. Robison v. Robison, 44 Ala. 269.
4. If either the estate of Eubanks, or Thomas P. Saffold, suffers any injury from the decree, it is not the complainant’s fault. It was the duty of said Saffold under the circum[218]*218stances, to furnish the necessary information to complainant. 19 Ala. 121, 691; 27 Ala. 618; 16 Ala. 364.
5. Mrs. Ann Saffold is not a purchaser for valuable consideration, within the meaning of the statute. Wells v. Morrow, 38 Ala. 125; Dickerson v. Tillinghast, 4 Paige, 214.
BRICKELL, J.
We may dismiss from consideration the allegations of the bill as to the provisions of the constitution and the decisions of the courts of Georgia, with the remark, that they furnish no sufficient ground on which a court of equity in this State Can afford the complainant relief. The jurisdiction of the courts of equity in this State, so far as dependent on the existence or absence of legal remedies, must be determined in view of the remedies afforded by our laws, and not by the laws of another State.
We may dismiss from consideration, also, the complainant’s right to relief, so far as it depends on the allegations of fraud in the conveyance of the land by William O. Saffold to his mother, Mrs. Ann Saffold; because these allegations are fully denied in the answers, and are wholly unsupported by proof. This leaves the case to be considered in the single aspect of the complainant’s right to be subrogated to, and to foreclose, the mortgage given by said William O. Saffold to his surety, Thomas P. Saffold, to indemnify him against the payment of the debt owing by them to the complainant.
Subrogation is, exclusively and purely, the creature of a court of equity. When a security is given by the principal debtor, for the ease and indemnity of his surety against the liability to the common creditor, a trust is created, in the contemplation of a court of equity, for the better protection of the debt, which both principal and surety are bound to pay. Subrogating the creditor to the rights of the surety relieves him from the vexation of suit, and from the necessity of resorting for redress to the security furnished, or to the principal debtor. The liability of the principal is thereby extinguished, to the extent to which "the security can be made available, and complete justice is done to all parties in interest. Moses v. Murgatroyd, 1 Johns. Ch. 119; 1 Leading Cases in Equity, 163; Toulmin v. Hamilton, 7 Ala. 363; Ohio Life Ins. & Trust Co. v. Ledyard, 8 Ala. 866; Br. Bank at Mobile, v. Robertson, 19 Ala. 779; Troy v. Smith & Shields, 33 Ala. 469.
2. The judgment obtained by the complainant in Georgia, against the principal debtor and his "surety, does not entitle him to seek any other relief in the courts of equity of this State than such as those courts can accord to general creditors. He is not a creditor who has exhausted his legal remedies, or who has acquired a legal lien, the obstruction of which a court [219]*219of equity will intervene to prevent. No priority of lien, or capacity of execution, attaches here to such a judgment. It is a mere cause of action, protected, as matter of evidence, by the provision of the constitution of the United States, that full faith and credit — the credit which attached to it in the State in which it was taken — shall be here given to it as evidence.
3. But a judgment, or the exhaustion of legal remedies, is not essential to the creditor’s right of subrogation. The creditor, asserting this right, .asks only the enforcement of a trust enuring to his benefit. The trust attaches only to the particular debt, and adheres to it, without regard to the form it may assume. No other creditor than the holder of the debt can appropriate the subject of the trust. A court of equity only can enforce the trust, and its enforcement lies within the original jurisdiction of that court. A court of law has no process or remedy adapted or adequate to the creditor’s relief. Therefore, the complainant, though only a general creditor, has a right to the enforcement of this trust, without reducing his debt to judgment at law, or the pursuit or exhaustion of legal remedies. Toulmin v. Hamilton, supra.
4. There is, however, a fatal error in the decree in this aspect of the case. The mortgage security, to which the complainant prays subrogation, is averred to have been made equally for the indemnity of the surety against his liability to complainant, and a similar liability to Thomas (or Francis) A. Banks, administrator of the estate of Thomas Eubanks, deceased. The existence and validity of this latter debt are not assailed by the pleading, nor in the least impugned by the evidence. Banks is made a party defendant by publication, and a decree pro eonfesso is taken against him. It is not averred that he has ever waived, or refused to recognize, the trust which the law raised in his favor. He has, therefore, the same equity the complainant asserts. Yet, a decree is rendered, directing a sale of the mortgaged estate, and the application of the proceeds of sale, exclusively to the debt of the complainant. In this, the court erred, in the present state of the pleadings and proof. The decree should have directed the application to the payment of both debts, according to their respective amounts.
5. The mortgage, to which the complainant seeks subrogation, was made on the 15th of March, 1866, but it was not recorded, or filed for record, until the 28th day- of May, 1866. On the 27th April, 1866, the mortgagor made an absolute conveyance of the mortgaged premises to the defendant Ann Saffold, in part payment of a preexisting debt; and this conveyance was recorded on the 30th April, 1866, before the registration or filing for registration of the mortgage. It is [220]*220averred in the bill, that Mrs. Ann Saffold had, at the making of the conveyance, notice of the mortgage. This averment is denied fully in her answer, and the only evidence on the point supports the answer, and contradicts the averment of the bill. The mortgage was made as a security for antecedent debts of the mortgagor; and the consideration of the absolute conveyance is an antecedent debt, due from the mortgagor to the grantee.
The statutes provide: “ Conveyances of unconditional estates and mortgages, or instruments in the nature of a mortgage, of real property, to secure any debt created at the date thereof, are void, as to purchasers for a valuable consideration, mortgagees, and judgment creditors, having no notice thereof, unless recorded within three months from their date.” R. C. § 1557. “ All other conveyances of real property, mortgages, or deeds of trust, to secure any debts other than those specified in the preceding section, are inoperative and void, as to purchasers for a valuable consideration, mortgagees, and judgment creditors, without notice, unless the same have been recorded before the accrual of the right of such purchasers, mortgagees, or judgment creditors.” R. C. § 1558.
A debt, whether created at the making of a conveyance, or previously existing, as a general rule forms a valuable consideration, supporting a conveyance, whether assailed by creditors, or impeached by subsequent purchasers. Young v. Dumas, 35 Ala. 60; Pulliam v. Newberry, 40 Ala. 168. This does not seem to be questioned by the appellee; but it is insisted, that a purchaser in payment of an antecedent debt cannot be deemed a purchaser for a valuable consideration, entitled to the protection of the statutes of registration; and in support of the proposition, we are referred to the cases of Morrow v. Wells, 38 Ala. 125; and Dickerson v. Tillinghast, 4 Paige, 214.
A defence against prior equities, or a prior conveyance, must be supported by a valuable consideration. Mere want of notice, and a subsequent grant or conveyance, however innocently accepted, though supported by a good and valid consideration, will not protect against them. The grantee must have parted with something valuable, must have changed his legal relation to the grantor, or he is not, in a court of equity, protected against prior equities, nor in any court, of law or equity, protected by the statutes of registration.
The case of Wells v. Morrow, supra, proceeds on this principle. A creditor had accepted a mortgage, as a security for a preexisting debt, and was refused protection as a bond fide purchaser without notice, against the lien of a vendor for the purchase-money. The mortgagee had not changed his relation [221]*221to his debtor. No new consideration, of forbearance to sue, or otherwise, entered into the mortgage. The debt remained as it was when the mortgage was made, capable of enforcement by all the legal remedies to which the creditor could have resorted, if the mortgage had not been made.
A different rule prevails, when the creditor, as in this case, accepts an absolute conveyance, in payment of an antecedent debt; he then becomes a purchaser for a valuable consideration, entitled to protection under the statutes of registration. The point was so adjudged in Ohio Life Ins. & Trust Co. v. Ledyard (8 Ala. 866), and the decision has not been since questioned. The case now cited, Dickerson v. Tillinghast, supra, with other New York cases, was pressed upon the consideration of the court, and it was said in answer to them : “ The cases cited by the counsel for the defendant in error, from Paige and Wendell, to be found on his brief, are based upon a principle which does not obtain in this State: that the payment, or discharge of a preexisting debt, is not a valuable consideration, in the same sense as paying money, or parting with property would be.” The pleadings and proofs here fully disclose, that the conveyance to the defendant, Ann Saffold, was made in payment of a debt due and owing her by the grantor, William O.; and this conveyance, though made subsequent to the mortgage, under which the complainant claims, was recorded prior to the registration of the mortgage. The priority of registration, under the statute, entitles her to priority of right.
It follows, that the decree of the chancellor is erroneous, and must be reversed, and the cause remanded for further proceedings in conformity with this opinion.
Saeeold, J., not sitting.