Statement of case. S. 84, § 13.) That section provides that "the naming of any person executor in a will shall not operate as a discharge or bequest of any just claim which the testator had against such executor, but such claim shall be included among the credits and effects of the deceased, in the inventory; and such executor shall be liable for the same, as for so much money in his hands at the time such debt or demand becomes due; and he shall apply and distribute the same in the payment of debts and legacies, and among the next of kin, as part of the personal estate of the deceased." As a member of this firm, the executor owed this debt, and the whole of it, to the testatrix. As executor he could not sue the firm of which he was a member. There was no way, therefore, by which he could enforce payment from the firm unwilling to pay. Within the meaning of that section this was, therefore, a just claim against him, which he ought to pay, and which should be regarded as so much money in his hands. The judgment should be affirmed, with costs. All concur. 95 346 114 293 ZIPPORAH R. CLARK, Appellant, v. JAMES MACKIN et al., In an action by an assignee of a mortgage to foreclose the same it appeared that the mortgagee, after he assigned the mortgage, executed a satisfaction thereof, without consideration, and the mortgage was canceled of record; the assignment was not recorded. Subsequently the owner of the premises executed another mortgage to secure an antecedent debt, the mortgagee having notice also of the existence of plaintiff's mortgage. This second mortgage was assigned, with guaranty of payment, to two of the defendants, who purchased in good faith and without notice of plaintiff's mortgage, and had obtained judgment in an action to foreclose the same, with judgment for deficiency against their assignors. Held, that said defendants were entitled to a priority, but that plaintiff was equitably entitled to be subrogated to all the rights of said defendants and that such relief could be granted in this action. Statement of case. Judgment, therefore, ordered, directing that upon payment to said defendants of amount due for principal, interest and costs upon their judgment, plaintiff be subrogated as aforesaid, and that said defendants assign to him their judgment, bond and mortgage, and guaranty. Also held, that it was not essential to the granting of such relief that it should be demanded in the complaint, nor was it an objection that defendants' assignors were not parties. (Argued March 5, 1884; decided March 21, 1884.) APPEAL from judgment of the General Term of the Supreme Court, in the second judicial department, entered upon an order made September 11, 1883, which affirmed that portion of the judgment herein which dismissed the complaint as to defendants Mackin and Verplanck, which judgment was entered upon a decision of the court on trial at Special Term. (Reported below, 30 Hun, 411.) This action was brought to foreclose a mortgage executed in February, 1856, by Jonah Miller to Abraham Impson, to secure the payment of his bond for $1,000. Impson assigned the mortgage to Matilda Durland, April 30, 1856, she assigned it to James Durland, April 1, 1861, who assigned it to the plaintiff, January 13, 1880. None of the assignments were recorded. The premises were sold and conveyed to the defendant McNeal in May, 1863. In October, 1873, Impson executed and delivered to McNeal a satisfaction-piece of the mortgage without payment or consideration, which was duly recorded. On the 22d day of January, 1876, McNeal executed and delivered to Homer Ramsdell and others a mortgage covering the same premises, with others, for an antecedent indebtedness, and without other consideration. This mortgage was duly recorded, and was taken with notice of the existence of the mortgage in suit. This mortgage was assigned to defendants. Mackin and others, as executors, for value, and without notice of the existence of the plaintiff's mortgage, and their assignment was duly recorded. In this assignment the assignors guaranteed the payment of the mortgage. Said executors have foreclosed this mortgage, and under the judgment have sold all the land covered by it, except the premises in question. Other facts appear in the opinion. Statement of case. Henry Bacon for appellant. The mortgage to Ramsdell & Co. having been taken with actual notice of the existence of plaintiff's mortgage, and not upon the faith of the record, or an antecedent debt, was in their hands subsequent and subject to the plaintiff's mortgage. (R. S., part 2, chap. 3, § 1; Jackson v. Burgott, 10 Johns. 457; Butler v. Viele, 44 Barb. 166; Dickerson v. Tillinghast, 4 Paige, 215; Weaver v. Barden, 49 N. Y. 286; Wood v. Robinson, 22 id. 564; Cary v. White, 52 id. 138; Young v. Guy, 87 id. 457.) The respondents took only the rights which Ramsdell & Co. had under the mortgage, and it is in their hands affected by the same equities and rights as in the hands of their assignors. (Shafer v. Reilly, 50 N. Y. 61; Trustees of Union College v. Wheeler, 61 id. 88; Greene v. Warwick, 64 id. 220; De Lancey v. Stearns, 66 id. 157; Young v. Guy, 87 id. 457, 462.) The plaintiff's mortgage, having been recorded before the respondent's mortgage or assignment, was a prior lien unless affected by the recording of the satisfaction-piece. The non-recording of the assignment under which plaintiff claims did not of itself affect that lien. Neither did the recording of the defendants' assignment of itself affect that lien. (1 R. S. 756, § 1, 36, 37; Purdy v. Huntington, 42 N. Y. 334; Campbell v. Vedder, 1 Abb. Ct. of App. 295.) The satisfaction-piece was not a conveyance within the statutory definition of that word. (R. S. 762, § 38; Bacon v. Van Schoonhoven, 84 N. Y. 450; Stoddard v. Hart, 23 id. 556; Trimm v. Marsh, 54 id. 599; Collins v. Torry, 7 Johns. 278; Sedgwick v. Hollenbeck, id. 376.) The respondents having taken with their assignment a guaranty of payment from Ramsdell & Co., the mortgage in their hands is subject to the same equities as if in the hands of Ramsdell & Co. (Trust Co. v. Nat. B'k, 101 U. S. 68; Omaha Nat. B'k v. Walker, 23 Alb. L. J. 437.) When two funds are specifically bound for one debt, and one of the funds only bound for another debt, the other debt has a preference in the only fund to which it is entitled to resort. (Hawley v. Mancius, 7 Johns. Ch. 174; Besley v. Lawrence, 11 Paige, 581; Geller v. Hoyt, 7 How. 265; Ingalls v. Mor Statement of case gan, Ex., 10 N. Y. 178; Taylor v. Dodd, 58 id. 335.) If the court hold that as between the present parties to the record the mortgage held by the trustees of De Witt was prior in lien to the plaintiff's mortgage, and that they were entitled to be first paid out of the proceeds, it would be the absolute legal right of the plaintiff to pay the amount due to the defendants and be subrogated to all their rights, not only in the mortgage but in the collateral security- the guaranty. (Cole v. Malcolm, 66 N. Y. 363; Barnes v. Mott, 64 id. 397; Frost v. Yonkers So'gs B'k, 70 id. 553; Twombly v. Cassidy, 82 id. 155; Nat. B'k of Lansingburgh v. Silliman, 65 id. 475.) Being subrogated to the rights of the trustees under the guaranty, they could enforce it against Ramsdell & Townsend. (Allen v. Rightmere, 20 Johns. 364; Mann v. Ekford, Ex., 15 Wend. 501; Cady v. Sheldon, 38 Barb. 103.) Ramsdell & Co., on paying on their guaranty and receiving back the bond and mortgage, would not be protected under the rights acquired by the respondents as bona fide holders. (Story's Eq. Jur., § 410; Daniells on Negotiable Instruments, § 805; Quinn v. Fuller, 7 Cush. 224; Schutt v. Large, 6 Barb. 373380.) The relation of the appellant to the respondents, if their mortgage is a prior lien, was one of quasi suretyship, and which entitled the plaintiff to an assignment, not only of the bond and mortgage, but also of the guaranty, upon payment of the amount due on the respondents' mortgage. (Griswold v. Jackson, 2 Edw. Ch. 461; Hayes v. Ward, 4 Johns. Ch. 122; Bangs v. Strong, 10 Paige, 11; Paine v. Jones, 76 N. Y. 274.) The persons composing the firm of Ramsdell & Co. were not necessary parties to this action. (Em. Ind. Svgs. B'k v. Goldman, 75 N. Y. 127; Twombly v. Cassidy, 82 id. 155; Ryerson v. Welling, Ct. of App., Nov., 1883; Code, § 452, 488, 489.) The plaintiff, by her assignment, acquired the rights of Durland under the mortgage while held by him. (Varick v. Briggs, 6 Paige, 323; Myers v. Davis, 22 N. Y. 489.) E. A. Brewster for respondents. The assignment of the Opinion of the Court, per MILLER, J. Ramsdell mortgage to the respondents was a conveyance within the meaning of the Recording Act. (1 R. S. 756, §§ 1, 37, 38; Van Keuren v. Corkins, 66 N. Y. 77; Westbrook v. Gleason, 79 id. 25; Bacon v. Van Schoonhoven, 87 id. 446; Decker v. Boice, 83 id. 215.) Before the respondents as holders of the Ramsdell mortgage can be charged with any duty respecting equities existing in favor of the plaintiff as against Ramsdell and Townsend, or of any equities in her favor as a younger incumbrance, actual notice of the facts out of which such equities arise must be brought home to them. (Howard Ins. Co. v. Halsey, 8 N. Y. 271; Baylies on Sureties and Guarantors, 256; Guion v. Knapp, 6 Paige, 35; Gahn v. Niemcewiczs, 11 Wend. 312; Elwood v. Deifendorf, 5 Barb. 399.) The guaranty of Ramsdell and Townsend, which accompanied their assignment to respondents, was not a fund or security out of which the mortgage debt might be collected. It was a mere warranty that the mortgagor would pay; not a promise that the guarantor would pay. (Baylies on Sureties, 4; Ellsworth v. Lockwood, 42 N. Y. 97; Frost v. Yonkers Svgs. B'k, 70 id. 553.) A mortgagee by assigning with guaranty comes under no obligation to any other mortgagee, prior or subsequent. (Carter v. Holohan, 92 N. Y. 498.) The debt from McNeal to Ramsdell & Co. being due, and Ramsdell & Co., at the time of crediting McNeal with the amount of the mortgage, having the right to enforce their claim against McNeal presently, and which right they relinquished by receiv ing the mortgage, and their power to collect the original debt being suspended until the mortgage came due, they parted with value which constitutes a sufficient consideration to make Ramsdell & Co. bona fide purchasers. (Burns v. Rowland, 40 Barb. 369; Pratt v. Coman, 37 N. Y. 443.) MILLER, J. Within well-settled rules the mortgage belonging to the plaintiff was not entitled to a priority over the mortgage held by Mackin and Verplanck as executors. The assignment of the mortgage held by them was taken without any knowledge, or notice, of the existence of the mortgage |