the suretyship is contracted, and is consummated when the surety pays the debt.1 The surety, upon the failure of his principal to pay or perform promptly, may not compel him to turn over his property to a receiver to be applied to the satisfaction of his undertaking-he must first perform the obligation, and then sue for indemnity.2 A surety who pays the debt of his principal is entitled not only to all the equities of the creditor as against the principal, but also against all persons claiming under him. All persons who take securities to which the creditor is entitled, with notice of his rights, whether from the principal debtor, or from the creditor, must hold them for the benefit of the surety.3 The right of the surety to follow such securities in the hands of a person chargeable with notice of his rights is not affected by the fact that the surety, when he entered upon his obligation, did not know of the An undertaking to pay the holders of a note any deficiency not exceeding a given sum which may exist after exhausting certain collaterals furnished by an indorser of the note, creates a separate and independent responsibility, and gives the undertaker no right of subrogation to the benefit of the collaterals. Tracy v. Pomeroy, 120 Pa. St. 14. If A borrows money for the use of B, and both execute a mortgage to secure the lender, A's land must be first sold to satisfy the debt, but he will be subrogated to the rights of the mortgagee against B. Canady v. Boliver, 25 S. Car. 547A surety who pays a note secured by deed of trust or mortgage is entitled to have the security enforced for his benefit. Taylor v. Tarr, 84 Mo. 420; Atkinson v. Stewart, 46 Mo. 510; Wolff v. Walter, 56 Mo. 292; Hall v. Morgan, 79 Mo. 47. If a debtor deposits collateral securities with the creditor, and afterwards obtains further advances from the creditor for which he provides a surety, the latter will be entitled to the benefit of any surplus of such securities remaining after the original loan has been repaid. Wright v. Morley, 11 Ves. 21; Heyman 7. Dubois, L. Ř., 13 Eq. 158; Praed v. Gardiner, 2 Cox 86. A person who charges his own property with the debt of another, will, on payment of that debt, be subrogated to the benefit of any securities of the principal debtor held by the creditor. McNeale v. Reed, 7 Ir. Eq. 251; Lewis v. Palmer, 28 N. Y. 271; Vartie v. Underwood, 18 Barb. (N. Y.) 561. Sureties on a bond to stay execution upon appeal, who, after affirmance, are compelled to make good a loss of the property levied on, will be subrogated to the benefit of the judgment appealed from. Gifford v. Rising (Supreme Ct.), 12 N. Y. Supp. 430. Sureties in an appeal bond who pay the same, have no equities superior to those of incumbrancers subsequent to the lien of the plaintiff in the judgment appealed from but prior to the undertaking of the sureties themselves. Powell v. Allen, 11 Ill. App. 129. A surety who pays a judgment after it has been affirmed on appeal will be subrogated to the rights of the judgment creditor against the lands of the principal in the hands of one who purchased from the principal pending the appeal, and will have priority over an assignee of a mortgage given by such purchaser to secure the purchase money. Hill v. King, 48 Ohio St. 75. The surety in a delivery bond is substituted to the rights of the creditor, and may resort to a court of equity to compel such an application of the property embraced in the bond as will protect his interests. Dechard v. Edwards, 2 Sneed (Tenn.) 93. See also infra, this title, Successive Sureties in Judicial Proceedings. 1. Wayland v. Tucker, 4 Gratt. (Va.) 268; 50 Am. Dec. 76. 2. McElroy v. Hatheway, 44 Mich. 399. 3. Drew v. Lockett, 32 Beav. 499; Atwood v. Vincent, 17 Conn. 575; Greene v. Ferrie, 1 Desaus. Eq. (S. Car.) 164. Compare Williams v. Owen, 13 Sim. 597; Bowker v. Bull, 1 Sim. (U. S.) 29; Farebrother v. Wodehouse,23 Beav. 18. existence of such securities, nor rely thereon.1 The surety cannot require the creditor, before proceeding against him, to exhaust collaterals deposited by the principal as security for the debt; 2 he must first discharge the debt-then he may enforce the securities himself.3 If the securities held by the creditor have been applied to the debt of the principal as far as they will go, leaving a deficiency; or if the debt be paid by the principal himself, there will be no right of subrogation. Nor will the surety be entitled to the benefit of any other securities or rights of the creditor than those applicable to the contract on which he is bound.5 1. I Story Eq. § 638; Aldrich v. Cooper, 8 Ves. 388; Chitty Cont. (10th Am. ed.) 584; Wheatley v. Barstow, 7 De G. M. & G. 279; Cheesebrough v. Millard, Johns. Ch. (N. Y.) 413; 7 Am. Dec. 494; Stevens v. Cooper, i Johns. Ch. (N. Y.) 430; 7 Am. Dec. 499; Hayes v. Ward, 4 Johns. Ch. (N. Y.) 130; 8 Am. Dec. 554; Lidderdale v. Robinson, 2 Brock. (U. S.) 160; 12 Wheat. (U. S.) 596; Atwood v. Vincent, 17 Conn. 583; New Hampshire Sav. Bank v. Colcord, 15 N. H. 119; 41 Am. Dec. 685; Lichtenthaler v. Thompson, 13 S. & R. (Pa.) 157; 15 Am. Dec. 581. A surety is entitled to the benefit of a security given without his knowledge by the debtor to the creditor at a different time, to secure another demand in addition to that for which he became surety. Scott v. Knox, 2 Jones 778. One who executes a note as collateral security for a note secured by a lien on real estate, will, if compelled to pay such collateral note, be subrogated to the lien in question, though he did not know of its existence when he made his note, and was informed of an assignment of the original note by the creditor to a third person. Hevener v. Berry, 17 W. Va. 474. 2. Dougherty v. MacKenzie, 34 Mo. 462; Kochler v. Farmers', etc., Bank, 51 Hun (N. Y.) 418; Buffalo Bank v. Wood, 71 N. Y. 405; Geddis v. Hawk, I Watts (Pa.) 280; Brough's Estate, 71 Pa. St. 460; Hardy v. Overman, 36 Ind. 549; Armstrong v. Poole, 30 W. Va. 666. In Gary v. Cannon, 3 Ired. Eq. (N. Car.) 64, it was held that whether a surety to a debtor can or cannot in any case require the creditor to resort to a collateral security which he has obtained from the principal debtor, he certainly may not require him to look to such security in the first instance, if it is not plainly a valid security under which the creditor may have speedy, direct, and certain redress. See also SURETYSHIP, vol. 24. 3. Brick v. Freehold Nat. Banking Co., 37 N. J. L. 307; Hall v. Hoxsey, 84 Ill. 616. Joint Debtors-Suretyship-Subroga. tion. In Roberts v. Jeffries, So Mo. 115, one of three joint debtors gave security to another by way of indemnity against the debt. A third, who stood in the relation of surety to both, insisted that the security should be exhausted before the creditor proceeded against him, but the claim was denied, his only right in respect to the security being to be subrogated to its benefit, and this would not arise until he had paid the debt. 4. Belcher v. Hartford Bank, 15 Conn. 381; Kinley v. Hill, 4 W. & S. (Pa.) 426; Shackleford v. Stockton, 6 B. Mon. (Ky.) 390; Tarbell v. Parker, 101 Mass. 165. The surety cannot require the creditor, before proceeding against him, to exhaust collaterals deposited by the principal as security for the debt. See SURETYSHIP, vol. 24. 5. Trent v. Calderwood, 2 La. Ann. 942; Old v. Chambliss, 3 La. Ann. 205; Tardy v. Allen, 3 La. Ann. 66; Houston v. Branch Bank, 25 Ala. 250; Downing v. Linville, 3 Bush (Ky.) 472; Hutchins v. McCauley, 2 Dev. & B. (N. Car.) 399; Osborn v. Cunningham, 4 Dev. & B. (N. Car.) 423; Bowman v. Blodgett, 2 Met. (Mass.) 308; Brazer v. Clark, 5 Pick. (Mass.) 96; Towne v. Ammidown, 20 Pick. (Mass.) 535; Tom v. Goodrich, 2 Johns. (N. Y.) 213; Carter v. Black, 4 Dev. & B. (N. Car.) 425; Wade v. Coope, 2 Sim. 155; South v. Bloxam, 2 H. & M. 457; Ex p. Rushforth, 10 Ves. 409. See Stafford v. New Bedford Sav. Bank, 132 Mass. 315, for a case in which The surety will be entitled to the actual possession of all securities held by the creditor for the payment of the principal's debt, immediately upon his satisfaction thereof;1 and it has been held that the court may direct a transfer of such securities to the surety before rendition of judgment against him for the debt of his principal. The creditor, after receiving payment of his debt from a surety, may not discharge or cancel any security from or on account of the principal without the consent of the surety.3 A surety for an installment, or part only, of a debt, will not be entitled to the benefit of a security given by the debtor for another installment or part of the debt at a different time.4 It has been held that a surety will not be subrogated to the rights of the creditor, unless necessary for his protection.5 Subrogation will not be enforced in favor of a surety so as to defeat an interest acquired and held by a third party, when that interest, though subordinate to that of the creditor, is prior in date to the surety's undertaking. The surety will not be entitled to any greater rights than the person to whose place he is substituted.7 a surety of a bankrupt corporation was held not entitled to the benefit of stock taken by the creditor, a bank, in a new corporation composed of the creditors of the old bankrupt corporation, such stock being in no manner collateral security for the indebtedness of the old corporation. As the liability of a surety is limited to the express terms of his contract, so his right of subrogation is confined to the rights and securities of the contract for which he is surety. Flannary . Utley (Ky. 1887), 3 S. W. Rep. 413. 1. Klopp v. Lebanon Bank, 46 Pa. St. 88: Loundes v. Chisholm, 2 McCord Eq. (S. Car.) 455; Murray v. Catlett, 4 Greene (Iowa) 108; Jacques v. Fackney, 64 Ill. 87; Smith v. Schneider. 23 Mo. 447; Loughridge v. Bowland, 52 Miss. 546. If the security consists of a chattel mortgage, the surety will, on payment of the debt, be entitled to the possession of the chattels. Torp v. Gulseth, 37 Minn. 135. 2. Knoblauch v. Foglesong, 37 Minn. Grubbs v. Wysors, 32 Gratt. (Va.) 127; 5. Thus, the application of a surety of a railroad company who had been compelled to pay for land condemned by the company, to be subrogated to the landowner's right to an injunction to prevent the use of the road over the land, was denied, on the ground that it was not necessary to his protection to prevent such use, there being nothing to be gained by him through such injunction; the company being insolvent and its affairs in the hands of a receiver, and the road being operated for the accommodation of the public, by a trustee of holders of bonds of the company, with a view to a more advantageous sale of the property on foreclosure. In re Hewitt, 25 N. J. Eq. 210. See also Joliet, etc., R. Co. v. Healy, 94 Ill. 416, where it is said that equity will not do that which will be of no benefit to the party asking it, and only a hardship upon the party coerced or, as the maxim is, the law does not require any one to do vain or useless things. 6. Patterson v. Pope, 5 Dana (Ky.) 243; Johnson v. Morrison, 5 B. Mon. (Ky.) 106; Farmers', etc., Bank v. Sherley, 12 Bush (Ky.) 304; Fishback v. Bodman, 14 Bush (Ky.) 117. 7. 3 Pom. Eq., § 1417; Walsh v. McBride, 72 Md. 45, where one of two joint purchasers, who had paid off the b. WHEN RIGHT TO SUBROGATION BECOMES COMPLETE.-The creditor is entitled to full satisfaction of the debt before the right of subrogation may be invoked; the surety may not meddle with any of his rights and securities so long as any portion of the debt remains unsatisfied. It seems, however, that an exception will entire purchase money, claimed the benefit of the vendor's lien as against his co-purchaser. It was denied on the ground that the lien was extinguished by payment to the vendor in full. Barton v. Brent, 87 Va. 385; Hopewell v. Cumberland Bank, 10 Leigh (Va.) 206; Stephenson v. Taverners, 9 Gratt. Va. 398; Morsell v. Baden, 22 Md. 391; Heth Tp. v. Lewis, 114 Ind. 508; Schur v. Schwartz, 140 Pa. St. 53. In Kilpatrick v. Dean, 15 Daly (N. Y.) 182, warehousemen, who had guarantied the payment of advances made by third parties to the owner of goods stored in the warehouse,and secured by a pledge of the goods, were compelled to pay to the lenders the amounts due them. It was held that the warehousemen thereupon became subrogated to the rights of the lenders as pledgees in respect to the property, but that having converted the property to their own use by a sale not authorized under the conditions of the pledge, this operated as a payment of the debt to the extent of the value of the property, and its value exceeding the amount of the debt, the warehousemen were liable in damages for the market value of the property, less the amount of the debt. 1. Bank of Pa. v. Potius, 10 Watts (Pa.) 148; Brough's Estate, 71 Pa. St. 460; New Jersey Midland R. Co. v. Wortendyke, 27 Ñ. J. Eq. 658; People's Ins. Co. v. Straehle (Ohio), 2 Cinn. Super. Ct. Rep. 186; Ex p. Rushforth, 10 Ves. 409; Fare brother v. Wodehouse, 23 Beav. 18; Cooper v. Jenkins, 32 Beav. 337; Davies v. Humphreys, 6 M. & W. 153; Copis v. Middleton, T. & R. 224; Hodgson v. Shaw, 3 Myl. & K. 183; Ewart v. Latta, 4 Macq. H. & L. Cas. 983; Gannett v. Blodgett, 39 N. H. 150; Field . Hamilton, 45 Vt. 35; Wilcox v. Fairhaven Bank, 7 Allen (Mass.) 270; Child v. New York, etc., R. Co., 129 Mass. 170; Richardson v. Washington Bank, 3 Met. (Mass.) 536; Swan v. Patterson, 7 Md. 164; Neptune Ins. Co. v. Dorsey, 3 Md. Ch. 334; Bullock v. Campbell, 9 Gill (Md.) 182; Com. v. State, 32 Md. 501; Lawson v. Sny der, 1 Md. 79; Hopkinsville Bank v. Rudy, 2 Bush (Ky.) 326; Glass v. Pullen, 6 Bush (Ky.) 346; Rice v. Downing, 12 B. Mon.(Ky.) 44; Cason v. Westfall, 83 Tex. 26; Jamis v. Day, 37 Iowa 164; Magee v. Leggett, 48 Miss. 139; Lee v. Griffin, 31 Miss. 632; Gilliam v. Esselman, 5 Sneed (Tenn.) 86; Hall v. Hall, 10 Humph. (Tenn.) 352; Harlan v. Sweeny, 1 Lea (Tenn.) 682; Delaney v. Tipton, 3 Hayw. (Tenn.) 15; McConnell v. Beattie, 34 Ark. 113; Schoonover v. Allen, 40 Ark. 132; Pickett v. Bates, 3 La. Ann. 627; Bridges v. Nicholson, 20 Ga. 90; Darst v. Bates, 51 Ill. 439; Conwell v. McCowan, 53 III. 363; Williams v. Williams, 5 Ohio 444; Vert v. Voss, 74 Ind. 566; Covey v. Neff, 63 Ind. 391. Compare Zook v. Clemmer, 44 Ind. 15, and Rooker v. Benson, 83 Ind. 250; accord, Opp v. Ward, 125 Ind. 241; 21 Am. St. Rep. 220; In re Church, 16 R. I. 231; Barton v. Brent, 87 Va. 385. The creditor's rights must be entirely divested before another may be substituted in his place so as to have them vest in him. Stamford Bank v. Benedict, 15 Conn. 437; Union Bank v. Edwards, 1 Gill & J. (Md.) 346. In Kyner v. Kyner, 6 Watts (Pa.) 227, the court said: "There shall be no interference with the creditor's rights or securities which by possibility might prejudice or embarrass him in the collection of the residue of his debt. The surety must satisfy first his entire debt." Payment of part of the debt by the surety will not entitle him to an assignment of the creditor's securities pro tanto. Hollingsworth v. Floyd, 2 Har. & G. (Md.) 87. If lands devised subject to a charge in favor of legatees, be divided among the devisees, and the portion of one in the hands of his mortgagee be applied to the charge, the mortgagee cannot be subrogated to the benefit thereof, unless the charge has been paid in full. Alleghany Nat. Bank's Appeal (Pa. 1887), 7 Atl. Rep. 788. A groom of a stallion who gives his note for the horse's keep, will not be entitled to subrogation to the innkeeper's lien, unless it appears that the note has been fully paid, or accepted be made to this rule when necessary to prevent a needless multiplicity of suits, no detriment resulting thereby to the creditor.1 And should the creditor permit the surety to resort to the right of subrogation before the debt has been entirely paid, neither the principal debtor nor any creditor may complain.2 The creditor is entitled to actual payment of the debt3—a ten by the innkeeper as payment in full. Hoover v. Epler, 52 Pa. St. 522. If judgment be recovered on one of several notes secured by mortgage, and execution be issued, and a surety on a stay of such exécution pays the judgment. he cannot be subrogated to the benefit of the mortgage unless he pays the other notes secured thereby. Rice v. Morris, 82 Ind. 204. The surety of a person indebted to the government, who pays such indebtedness, does not succeed to the government's right of priority if there be any further indebtedness of his principal to the government, though on a different account. Reg. v. O'Cal laghan, Ir. Eq. 439. In Williams v. Tipton, 5 Humph. (Tenn.) 66; 42 Am. Dec. 420, it is held that a judgment creditor has a right in equity to set aside a fraudulent conveyance, and a surety who has satisfied a part of the judgment of such creditor will be substituted to the rights of such judgment creditor to the extent of his payment. And in Bowen v. Barksdale, 33 S. Car. 142, it was held that where a surety on a mortgage note pays part of it, he is entitled to be subrogated to the right of the mortgagee and to receive payment before subsequent judgment creditors. In Iowa it is held that where sureties, who are claiming in a court of equity the right of subrogation, have not paid the demand of the creditor, the court, in the exercise of its equitable power to declare future rights and duties, should order that the sureties be subrogated to the rights of the creditor when they shall have paid the debt of their principal. Keokuk v. Love, 31 Iowa 119. 1. Thus, where a father was guardian of his minor children, and after his death they brought suit against the sureties on his bond as guardian to recover a balance due them, it was decided that they, being heirs of their father and liable for his debts to the extent of assets received from him, the sureties should be subrogated to their rights as wards and allowed to offset the one liability against the other. Luck v. Atkins, 53 Ark. 303. See also Rice v. Rice, 108 Ill. 199; State v. Hopper, 3 Bush (Ky.) 179. 2. Gedye v. Matson, 25 Beav. 310; Motley v. Harris, 1 Lea (Tenn.) 577; Spaulding v. Crane, 46 Vt. 292. In Motley v. Harris, 1 Lea (Tenn.) 577, the court, while recognizing the general rule that a surety is not entitled to the remedies of the creditor upon property conveyed in trust by his principal until the debt is fully satisfied, and that in such cases the creditor alone is entitled to hold and control the debt and the remedies for its recovery, decided that the creditors in a trust deed, other than the one to whom the surety is bound, may not object to any arrangement between such creditor and surety, by which the latter is substituted to the rights and remedies of the creditor under the assignment, whether the surety has entirely satisfied the debt or not. "The general rule that subrogation will not be allowed for partial payment extends only so far as its reason goes. The reason is that the creditor cannot equitably be compelled to split his security, and give up control of any part until he is fully satisfied. It accords with the limitation that subrogation will not be enforced against a superior equity. But if the debt as to the creditor be satisfied, he has no equity left to be displaced; he has gone out and no one else has any right to object." Eakin, J., in Schoonover v. Allen, 40 Ark. 132. The same is intimated in McConnell v. Beattie, 34 Ark. 113. 3. Pigon v. French, 1 Wash. (U. S.) 278; Judah v. Judd, 1 Conn. 309; Grieff v. Steamboat Stacy, 12 La. Ann. 8. The fact that judgment has been recovered against the surety is not sufficient to entitle him to subrogation, he must have paid the judgment. First Nat. Bank v. Crawford (Ohio), 2 Cinn. Super. Ct. Rep. 125. In Moore v. Topliff, 107 Ill. 241, it was held that a surety against whom alone judgment had been obtained, |