5. If a surety on a debt secured by mort gage pays the debt, he is entitled to the mortgage as security. 1 Turn. & R. Ch. 224; 4 Russ. Ch. 277 ; 1 Younge, Ch. 111 ; 3 Mylne & R. Ch. 183; 2 Swanst. Ch. 191; 2 Sim. Ch. 155. In all cases the payment must have been made by a party liable, and not by a mere volunteer. 3 Paige, Ch. N. Y. 117; 1 Spears, Eq. So. C. 37 ; 2 Brock. Va. 252. The creditor roust have had his claim fully satisfied, 1 Gill & J. Md. 347 ; 3 Md. Ch. Dec. 334, and the surety claiming subrogation must have paid it, 6 Watts, Penn. 221 ; 7 Watts & S. Penn. 99; 3 Heyw. No. C. 14; 3 Barb. Ch. N. Y. 625 ; 11 Ired. No. C. 118 ; 13 Ill. 68, and is subrogated, where he has paid to redeem a security, only to the amount he has paid, whatever be the value of the secu rity. 19 Miss. 632; 2 Sneed, Tenn. 93; 11 Gratt. Va. 522. But giving a note is pay ment within this rule. 8 Tex. 66.
Judgment obtained against the principal and surety does not destroy the relation as between themselves. 2 Ga. 239; 11 Barb. N. Y. 159. If a judgnient is recovered azainst a debtor and surety separately for tfie same amount, the surety can enforce the judgment against his principal when as signed to him after he paid the amount of the judgment. 10 Jo.hns. N. Y. 524; 3 Rich. Eq. So. C. 139.
A surety in a judgmsnt, to obtain a stay of execution, is not entitled to be substituted on paying the judgment. 5 Watts & S. Penn. 352; 1 Penn. St. 512. Nor can the surety be subrogated, although he has paid a judgment, if he has brought suit against his principal and failed to recover. 8 Watts, Penn. 384.
6. If a judgment is recovered and the sureties pay. they are entitled to be subro gated, 1 Watts & S. Penn. 155; 3 Leigh, Va. 272; 14 Ga. 674; 5 B. Monr. Ky. 393; 22 Ala. N. s. 782; 3 Sandf. Ch. N. Y. 431, even where a mortgage had been given them, but which turned out to be invalid. 4 Hen. & M. Va. 436. This seems to be contradicted in 3 Gratt. Va. 343.
Entry of satisfaction on a judgment does not destroy subrogation, if the entry was not made at the instance of the surety. 20 Penn. St. 41.
Where the surety has become liable on the contract of his principal, when the principal fails to perform the contract the surety may oay and be subrogated. 6 Gill & J. Md. 243; 15 N. II. 119 : thus, where the surety was held on a bond which he was obliged to pay, 2 Call, Va. 125 ; 1 Ired. Ch. No. C. 340; 3 id. 17, 147; 22 Vt. 274; and this even where the bond was given to the United States to pay duties on goods belonging t,o a third person. 4 Rand. Va. 438. And where the
bond was given for the payment of the price of land, he was allowed to sell the land. 2 Day. & B. No. C. 390; 3 Ala. br. s. 430; 2 B. Monr. Ky. 50.
But it is said the mere payment does not ipso facto subrogate him. 6 Watts & S. Penn. 190.
If the suret3r be also a debtor, there will be no substitution, unless expressly made, 2 Penn. St. 296; and the person who claims a right of subrogation must have superior equities to those opposing him. 3 Penn. St. 200.
Sureties of a surety, and his assignee, are entitled to all the rights of the surety, and to be substituted to his place as to all reme dies against the principal or his estate. 5 Barb. N. Y. 398; 22 Vt. 274.
7. Fourth, subrogation is allowed in the civil law for the benefit of the beneficiary heir who has paid with his own money the debts of the inheritance. Masse, ub. sup.
Fifth, aud for the benefit of the payer of a debt through the medium of a bill of ex chaege or promissory negotiable note. Code Commerciel, 159.
Sixth, and for the benefit of the successive indorsers of a note, to the rights of those who follow them against those who precede them, when they are called upon to pay the note.
The debt of the accepter of a bill is not extinguished by the payment of tha bill by the indorser or drawer ; for the same rights will remain against him, in their favor, which the holder had himself, unless he is a mere accommodation accepter. Story, Bills, 422. See a limitation in 19 Barb: N. Y. 562.
But if payment is made by an indorser who had not received due notice, it is at hie own risk, and he can ordinarily have no re course over to third persons. Chitty, Bills, c. 9.
An accommodation accepter is not entitled on payment to a securit3r given to an accom modation indorser. 1 Dev. Eq. No. C. 205.
An accommodation indorser who is obliged to pay the note is fsubrogated to the collate ral securities. 12 La. Ann. 733. This sub rogation in the civil law operates for the benefit of a holder by intervention (i.e. who pays for the honor of the drawer).
This species of subrogation (by indorse. ment) is to be distinguished from that which a surety on a note has when he is compelled to pay. Such surety is entitled to the benefit of all the securities which the holder has. 2 Rich. Eq. So. C. 179 ; 4 Ired. Eq. No. C. 22; 22 Penn. St. 68; 7 N. H. 236; 7 Rich. So.