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in consideration of the execution of the said | 9th day of January, 1809, execute and deliver to conveyance by this respondent, and of her the said Henry S. Turner, Thomas Blackburn, thereby relinquishing her dower in the said and Bushrod Washington, Jun., a deed for the Spotsylvania lands, and her right to the said said lands, in Fairfax County, whereby she conlands in Fairfax, the said Richard, on his part, veyed her right to the said lands last men agreed to convey to Edmund J. Lee, William tioned, to the said Turner and others, in trust, Maffit, and Richard Coleman, all the household to secure the payment of the said debt, due and kitchen furniture, carpeting, beds, bed- from the said Richard B. Lee to the Honorable steads, bed furniture, plate, chinaware, glass, Bushrod Washington, in the manner provided tables, chairs, table linen, carpets, sideboards, by the said agreement. And that the bureaus, wardrobes, and all kinds of furniture, said Richard did on the same day, in execution then in their said dwelling-house and kitchen; of the said agreement on his part, execute and estimated to be worth sixteen hundred dollars; deliver to the said E. J. Lee, William Maffit, and the following slaves, that is to say, John and Richard Coleman, a conveyance, whereby and his wife Alice, and their children Patty, he transferred and conveyed to them the said Betty, Henry, Charles, Johnny, Margaret, Milly, slaves and furniture before mentioned, to be and Frank; Ludwell, and his wife Nancy, and held in trust for this respondent, in the manner their children Caroline, Harriet, Frederick, Lud- and on the terms before stated, which said well, and Barbara; Henny and her child Elea- deed was duly proved and recorded, within nor; Rachel and her child Rachel; two sisters, eight months from the date thereof, in the Kitty and Letty, and their brothers, Alexander County Court of the County of Fairfax, in and Alfred; George (a blacksmith), Harry (a which the said Richard and this respondent carpenter), Harry (a wagoner), Tom (a car- continued still to reside, and in which the said ter), Thornton (a cook), Samuel (a smith), and slaves and furniture still remained. And this John (a ploughboy), to be held by the said E. defendant herewith exhibits the said three J. Lee, William Maffit, and Richard Coleman, deeds severally, marked Exhibits No. 1, No. 2, and the survivors and survivor of them, and the and No. 3. This respondent avers that the executors and administrators of such survivor, said agreement before mentioned was made bein trust, for the use of this respondent during tween the said Richard and her, and the said her life, and after her death to pass to her deeds executed in pursuance thereof, fairly and heirs-at-law, provided she died intestate, or to bona fide, without any intention to defeat, desuch persons as she might bequeath the same to fraud, hinder, or delay any creditor of the said by her last will and testament, so as she Richard. She is advised and insists that they should make the same pass fully and com- were duly proved and recorded, according to pletely, and without limitation or condition, to the laws of the State of Virginia, and that, her heirs or legatees. It was further agreed by under the same, she is a bona fide purchaser the said Richard and this respondent, that the of the said slaves and furniture, according to said Richard should be authorized, at any time the terms of the said deed to E. J. Lee and during his life, to sell or otherwise dispose of others; and that the said deed fully protects any part of the said slaves and furniture, with her in the right to said property conveyed, the consent of a majority of the said trustees, according to the terms thereof, against all or of the survivors or survivor of them, or of creditors of the said Richard, and all purchasthe executors or administrators of the last ers subsequently to the date there- [*115 114*] *survivor, provided the said Richard of. And this respondent has before herewith should convey to the said trustees, or to the exhibited, as part of her answer to the said survivors or survivor, or the executors or addeed, with the certificate of proof and record ministrators of the last survivor, other property, real or personal, to the full value of the said furniture or slaves so sold or disposed of. And it was further agreed that if the said Richard should fully pay the said debt to the Honorable Bushrod Washington, without selling any part of the lands to be conveyed to the said Henry S. Turner, and others, in trust, as aforesaid, and then held in trust for the said Elizabeth, then that the conveyance to be made as aforesaid, to the said E. J. Lee, William Maffit, and Richard Coleman, should become null and void as to the slaves Ludwell, Thornton, Henry, Butler, Tom, Samuel, Jack, and Eleanor.

And the said Elizabeth avers that in execution of the said agreement, and in consideration of the conveyance of the terms thereof to be made to the said E. J. Lee, William Maffit, and Richard Coleman, for her use, in manner and on the terms aforesaid, she did, on the 16th day of July, 1809, in due form of law, with the said R. B. Lee, execute and deliver to the said Ludwell a conveyance in fee of the said lands in Spotsylvania, thereby relinquishing her claim of dower therein. And did, with the said Richard, in due form of law, on the

thereof, by the clerk of the County Court of Fairfax County, marked Exhibit No. 3.

This respondent admits that no sale of the Fairfax lands was made under the said deed to Henry S. Turner and others; she, therefore, makes no claim to the slaves, Ludwell, Thornton, Henry, Butler, Tom, Samuel, Jack, and Eleanor; that none of the said last mentioned slaves are in her possession or subject to her control, nor were they so when the complainants issued out their writ of replevin in their bill mentioned, or at the time they instituted this suit.

In this case it is agreed that the following facts be, and they are hereby admitted as true, reserving all objections to the admissibility of the facts as competent testimony in the case, viz., that Richard Bland Lee and his wife Eliza beth, one of the defendants, resided at Fairfax County, in the State of Virginia, on the 9th January, in the year 1809, and said Richard B. Lee then held the negroes and other personal property mentioned in the deed of that date, from said Richard B. Lee, to Lee, Maffit, and Coleman, filed with defendant Elizabeth's answer, and marked Exhibit No. 3.

That the said R. B. Lee and his wife Eliza

beth were housekeepers, and resided together, I equity, cannot deprive the wife of the slaves, in Fairfax County at the date aforesaid; that without doing equity to her, by restoring the the said negroes and other personal property lands now beyond our reach, provided the continued in their possession after the deed of transaction was bona fide. the 9th January, 1809, had been made, in like manner as such possession had been held before said deed was made, and so continued until they removed to Washington city, in the year 1814 or 1815, when they brought said negroes and other property from Fairfax County with them to the city of Washington. That from the period of said removal to Washington, said personal property, as distinguished from the negroes, was assessed by the officers of the corporation as the property of the said Richard B. Lee.

The other part of the consideration was the deed of trust (of January 9th, 1809) by which the Fairfax estates of Sully and Langley were pledged for the payment of the debt due to Judge Washington. These estates were the separate and sole property of Mrs. Lee, and not being subject to execution by the laws of Virginia, the creditor had not the slightest claim upon them, and it would have been most unwise for Mrs. Lee to have onerated them without ample indemnity.

Judging of the probabilities in 1809, from That four of the said negroes were, for the future results, between that time and the death first time, in the year 1818, assessed to said of Richard Bland Lee in 1827, and we are inRichard B. Lee. That prior to the 9th day of clined to conclude that Mrs. Lee, with the arJanuary, in the year 1809, the said Richard B. dor common to her sex, mistook her true interLee was seized in fee of five undivided eighth est in making the exchange of her lands for the parts of 8,000 acres of land in Spotsylvania | slaves and household goods: that she has been County, in the State of Virginia, which was greatly the sufferer, is free from doubt. The conveyed by said Richard B. Lee and said Eliza- Virginia estates have passed into other hands, beth his wife, to Ludwell Lee in fee-simple. to satisfy her husband's creditors; most of the The execution, due acknowledgment, and re-slaves have been sold to supply his improvicording of the deed and bills of sale, exhibited dence and necessities, and the little that is left with the defendant Elizabeth Lee's answer, is of the property secured to Mrs. Lee (down to admitted. the humblest utensil), is now sought to be ap

The execution and service of the notices ex-propriated to the satisfaction of the judgment hibited with the answer of the defendant, on which the bill is founded. Edmund J. Lee, is admitted.

It is admitted that the deed of the 9th January, 1809, was delivered to the trustees therein named, and that they agreed to act, but never took possession of the property therein mentioned, or of any part of it.

It is also agreed that the deeds referred to in 116*] E. J. Lee's, * Elizabeth Lee's, and Richard Smith's answers, severally, were duly executed, acknowledged, and recorded, and are to be received and treated as parts of the record in this case.

On these pleadings, exhibits, and admissions, various positions are assumed as grounds of relief.

The deed of January 9, 1809, recites that Mrs. Lee had executed a deed to Ludwell Lee, relinquishing her right of dower to the 5,000 acres of land in Spotsylvania; whereas, the deed to Ludwell Lee, relinquishing the dower interest, bears date subsequently, in July, 1809. It is insisted for complainants that the recital was false, and that this part of the consideration had must be rejected. We do not think so. The transaction is of nearly thirty years' standing, and not so open to explanation as a more recent one; it may be that a deed had been executed by Mrs. Lee, as recited, to Ludwell Lee, and that it was afterwards superseded by another: be this as it may, Richard Bland Lee was estopped by the recital in his own deed, and Mrs. Lee's trustees, bound to performance on her part, supposing the recital to have been untrue. The substance of the contract was that she should relinquish her dower interest to Ludwell Lee; and she did relinquish it, obviously in compliance with the agreement; and that it was done in July, instead of the preceding January, is an immaterial circumstance. The husband's alienee acquired the disencumbered estate in consideration of the deed sought to be impeached; and in a court of

That the deed of trust to Henry S. Turner and others to secure Judge Washington's debt was executed in good faith, is not controverted; the objection is that the debt was paid [*117 by means independent of the lands mortgaged, and the mortgage discharged. The consideration, therefore, given by Mrs. Lee for the slaves and other property secured to her separate use is fully proved, and was ample when the contract was made; and this is all that rested upon the respondents to establish, to resist the claim of the complainants on the first aspect of the bill-that which alleges the deed to have been fraudulent in its inception.

But an after circumstance is invoked as furnishing evidence favorable to the complainants. In the interrogating part of the bill, the respond. ents are required to answer whether the debt mentioned in the deed of 1809 as due to Judge Washington had ever been paid, by whom, and from what funds. Edmund J. Lee responds that he had no distinct recollection on the subject; Mrs. Lee admits that no sale of the Fairfax lands was made under the deed to Henry S. Turner and others, but that the eight slaves, who in such event were to be returned to her husband had been disposed of by him, etc. If Mrs. Lee meant to say that the trustees had not sold by virtue of the deed of trust for judge Washington's benefit, then she answered truly; if, however, she is to be understood as answering that the estates pledged were not applied, in part, to the extinguishment of the debt, then she was mistaken. Sully, the homestead, was sold to Francis Lightfoot Lee in February, 1811, for eighteen thousand dollars; embracing the five hundred acres which was Mrs. Lee's indi vidual property, and including two hundred and seventeen acres in addition, out of which sum Judge Washington was paid seven thou sand four hundred and fifty dollars. The es tate was not conveyed by the trustees, but by

Richard Bland Lee, the respondent Elizabeth, | the community in which they lived, and esand Bushrod Washington, with covenants of pecially to the complainants, when within the title and warranty. The conveyance upon its wife's knowledge he was holding out her propface recites in the fullest manner that seven erty as his own, and using of it as his own, thousand four hundred and fifty dollars of the and obtaining credit upon the faith that he purchase money had been paid by Francis Light- was the true and absolute owner. foot Lee to Judge Washington in discharge of the balance of debt due to him. There can be little doubt Mrs. Lee in her answer was mistaken in admitting to her prejudice that the Fairfax lands had not been appropriated to the payment of Judge Washington's debt. Her principal object seems to have been to disavow all claim of title to the eight slaves.

Suppose, however, that Judge Washington's debt had been paid by other means, and the Fairfax lands disencumbered of it; could the fact influence this cause? That it could not is manifest. The complainants, by their bill, do not seek to come in under the deed to Turner and others, nor under that to Edmund J. Lee and others; if they had, and if the fact had been established, that Mrs. Lee, by the payment of the debts from independent means, retained her lands, and the slaves also, then a court of equity would treat her as a trustee for Richard Bland Lee, and let in the complainants as his assignees, to subject the slaves, etc., to the payment of the bank debt. But the bill charges that the deed to Edmund J. Lee 118] and others was fraudulent and void in its inception, presenting no case founded on the subsequent transaction alluded to; and the court cannot notice it other than as evidence to fix the fraud on the respondents in executing the deed sought to be set aside, which if valid then, must be deemed so now. The capacity of the husband to contract through the intervention of trustees, with the wife, and to make a valid conveyance, founded on a bona fide consideration paid out of the wife's separate estate, has not been questioned, nor is the doctrine open to controversy.

That a liberal construction should be given to the clause in the Virginia statute for the suppression of fraud we admit; this is the well established rule in construing the statutes of Elizabeth, which the first section of the Virginia statute substantially adopts. Heydon's case, 3 Rep.; 1 Black. Com. 88; Fitzhugh v. Anderson, 2 Hen. & Munford, 304.

On the second ground on which relief is sought, it is insisted the complainants are entitled to have satisfaction out of the property claimed by Mrs Lee.

That Richard Bland Lee did deal with and use the property in controversy as if it had been his own whilst he resided in this city, and that the community did believe him the true owner, and give him credit on the faith of the property, is no doubt true; and it is very probable that Mrs. Lee knew the fact, but continued passive and silent on the subject. She denies, however, that she had any knowledge of the execution of the deed of trust to Richard Smith until long after it had been made; and the answer, being responsive to the allegations in the bill, is conclusive of the fact denied; there being no proof to the contrary.

Was it a duty incumbent on Mrs. Lee to advertise the community in which she lived that her husband had no title to the property on the faith of which he was obtaining credit, but that it was hers? This would have been charging her husband with fraudulent conduct; *for it cannot be denied that if A sells [*119 and conveys his slaves or lands, and then produces to another his previous paper title, and obtains credit upon the goods or lands by pledging them for money loaned, he is guilty of a fraud; and if the true owner stands by and does not make his title known, he will be bound to make good the contract, on the principle that he who holds his peace when he ought to have spoken, shall not be heard now that he should be silent. He is deemed in equity a party to the fraud. How far the principle applies in a case of the wife of a fraudulent vendor standing by, we are not called on to decide, and wish to be understood as not deciding. Mrs. Lee's is not that case; to say the most, she was only passive and silent, in regard to her rights generally, although she may have had knowledge that Mr. Lee was obtaining credit on the faith of her property; and the question is, was it her duty to have acted otherwise? All we need say is that a court of chancery cannot hold Mrs. Lee responsible because of her silence.

Then as to the question of possession continuing with the grantor. Leave the relation of man and wife between Richard Bland Lee and Elizabeth Lee out of view, and it would be impossible that anyone could have been misled by Mrs. Lee having the possession; she having the sole and exclusive beneficial interest and right of possession. The difficulty arises from a circumstance, the existence of which the statutes of Virginia contemplated and provided for. By the Act of 1785, it is declared that where any reservation or limitation shall "II. That said deed so executed in Virginia be made of a use, or property, by way of conwill not validate the possession, use, and en-dition, reversion, remainder, or otherwise, in joyment of said property in the city of Washington."

"I. Because the continued possession, use, and enjoyment by said Richard Bland Lee, of the said property, purported to be conveyed by the deed of 9th January, 1809, was evidence of a continued ownership, and avoids said deed as against subsequent bona fide purchasers and creditors, without notice.

The investigation of this assumed ground of relief involves considerations affecting the nuptial relation.

We are asked to deal with the conduct of a wife living in harmony with her husband as if she was a third person, and to decree against her because she did not expose her husband to

goods and chattels, the possession whereof shall remain in another, the same shall be taken, as to creditors and purchasers of the persons remaining in possession, to be fraudulent, within the first section of the act, and that the absolute property is with the possession, unless such reservation or limitation of a use, or property, is declared by will or by deed, proved by two witnesses in the General Court,

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The statute of Virginia has been adopted in Tennessee, where it has been holden that a deed like the present, founded on a good consideration, and separating the title from the possession, was within the statute and must be recorded; but when recorded, creditors and purchasers of him who retains the possession must take notice of it, and that the recording exempts the property from liability to execution. Crenshaw v. Anthony, Martin & Yerger's R. 110. The great object of the act was to secure the settlement of slaves by the intervention of executors and trustees, so as to retain them in the family, and this could be done by a bona fide gift of a husband (not materially indebted at the time) to a wife or children; if the deed was duly recorded, to the exclusion not only of subsequent creditors, but subsequent purchasers also, contrary to the 27th of Elizabeth, whereby, in the language of the Supreme Court of Tennessee, in Marshall v. Broker, 1 Berger's R. 15, an extravagant, 120*] *spendthrift husband, may provide for his wife and children before they are overtaken by ruin." But we can say with Lord Hardwicke, in Russell and Hayward v. Hammond, 1 Atk., "that we have hardly known one case where a person conveying was deeply indebted at the time of such gift, that it has not been deemed fraudulent." In Virginia, therefore, the possession of Mrs. Lee was in accordance with the established practice, and is in no degree subject to imputation.

retaining the possession of the slaves. In 1805 Brodhag removed to Alleghany County, Maryland, and continued in possession of the slaves, as apparent owner, until August, 1809, when the sheriff of Alleghany seized on them by virtue of an execution against Brodhag in favor of Deakin's executors, and Smith, the trustee, sued Bruce, the sheriff, in trespass. In that case (as in this) Brodhag had given in the slaves to the assessor of taxes; and had sold part of them between 1804 and 1809.

The Court of Appeals of Maryland, in substance, held that the Act of 1729 did not affect the case, and the only proof required to sustain the plaintiff's title was the bill of sale (as it is denominated), and that it lay on the defendant to prove fraud in fact in order to avoid it. In 1804 the jurisdictions exercised in the District of Columbia and the State of Maryland were as distinct as those of Virginia and the *District, so that the case of Burch v. [*121 Smith was similar in respect to conflict of jurisdiction with the one before the court.

The same point came up in Tennessee, and met the decision of the Supreme Court of that State.

The following are the material facts in the Tennessee case:

In 1812, in Lunenberg County, Virginia, Daniel Crenshaw sold and conveyed certain slaves to Richard Herring, who soon after contracted for the purchase of a tract of land from Daniel Crenshaw, lying in the same county; but Nancy Crenshaw, the wife of Daniel, refused to relinquish her right of dower; and to induce her to do so, Herring agreed with her and her It is insisted, however, that when Richardson, Cornelius Crenshaw, to convey to the latBland Lee removed into Washington city, the statute of Maryland operated on the Virginia tite of Mrs. Lee, and defeated it for the benefit of purchasers from her husband.

The statute declares that no goods or chattels whereof the vendor shall remain in possession, shall pass, alter, or change, or any property thereof be transferred to any purchaser, etc., unless the same be by writing and acknowledged before one provincial justice, or one justice of the county where such seller shall reside, and be within twenty days recorded in the records of the same county. 1729, ch. 8, sec. 5.

ter, in trust for his mother, and for her separate use, two of the slaves previously purchased from Daniel Crenshaw. The deed was duly executed and recorded in Lunenburg.

In 1814 Daniel Crenshaw and his wife removed to Tennessee, carrying the slaves with them, Cornelius, the trustee, continuing to reside in Virginia.

In Tennessee, to all appearance, Daniel Crenshaw was the true owner of the slaves, and acquired credit on the faith of the property. He was improvident, for which reason, manifestly, the wife caused the slaves to be secured to herself; and it may be remarked that similar motives have led to many, not to say most of this description of conveyances in the States where the provisions of the Act of 1785 of Virginia prevail.

In 1821 Stacy recovered a judgment against Daniel Crenshaw in the county of his residence in Tennessee, by virtue of an execution, founded on which Anthony, the sheriff, seized upon the slaves; and Cornelius Crenshaw, as his mother's trustee, sued the sheriff in detinue. The Circuit Court held the deed of trust void by force of the statute of Tennessee (which is very nearly a transcript of that of Virginia), because the deed had not been recorded in Tennessee; a verdict was rendered for the defendant, and the plaintiff prosecuted his writ of error to the Supreme Court, where the judg ment was reversed.

The statute has no reference to a case where the title has been vested by the laws of another State, but operates only on sales, mortgages, and gifts, made in Maryland. The writing is to be recorded in the same county where the seller shall reside, when it is executed. The seller, Richard Bland Lee, residing in Virginia, it was impossible for Mrs. Lee to comply with the act. That the Virginia deed secured to Mrs. Lee the same rights here that it did in Virginia, we apprehend to be, to some extent, an adjudged question. It has frequently arisen in the State courts. The case of Smith v. Burch, 3 Harris & Johnson, was this: In 1804, Brodhag owed Jones, and gave a deed of trust on slaves to secure the debt (three thousand dollars), executed to Smith as trustee. The parties resided in Georgetown, where the Act of Maryland of 1729 continued in force The court held that the deed made in Virafter this district was separated from Mary-ginia, separating the title and possession, was land. The deed of trust was duly proved and of a character to be operated upon by the Act recorded in the District of Columbia, Brodhag of 1785 of Virginia; and had the deed not been

recorded there, as to creditors and purchasers, the title would have been deemed to be with the possession; but having been recorded there, a title fair and unimpeachable vested in the trustee and cestui que trust, Nancy; that being valid in Virginia, the statute of Tennessee 'could not affect it. Furthermore:

The court refused to hold the wife responsible, because she had continued passive and silent in regard to her separate right to the slaves, by which individuals might have been, and in all probability were, induced to believe her husband the true owner, and to give him credit on the faith of the property. In that case, as in this, the wife had done no affirmative act, designedly to draw in the creditor to trust her husband; and the court believed, by 122*] remaining silent, she had violated no duty, nor been guilty of any deceit on which a forfeiture of her right could be pronounced. The deed in controversy is also embraced by the 4th section of the statute of Virginia, which, amongst other things, provides for the recording of all deeds of trust and mortgages, upon acknowledgment or proof according to the directions of the act; it having been holden by the courts of Virginia and this court (3 Hen. & Mun. 232; 3 Cranch, 150) that deeds conveying chattels are included within the section referred to. And the deed vesting the property in Mrs. Lee's trustees having been duly recorded in the manner required by the statute, it was effectual according to the laws of Virginia, to protect the title against subsequent creditors of, or purchasers from, Richard Bland Lee.

Upon the whole, we are, of opinion the decree below dismissing the bill should be affirmed.

Mr. Justice Baldwin dissented.

Mr. Justice Thompson did not sit in this

cause.

prior incumbrances on land to obtain the benent of his judgment, may, by assignment, secure to himself the rights of the incumbrances; and the same rule applies where a junior mortgagee is obliged to satisfy prior mortgages. He stands as the assignee of such mortgages, and may claim all the benefits under the lien that could have been claimed by his assignor. But the effects of this principle may be controlled by acts of the parties.

United States for the County of Washing N appeal from the Circuit Court of the ton, in the District of Columbia.

This case was argued by Messrs. Sergeant and Coxe for the appellants, and by Mr. Key for the appellees.

Mr. Justice M'Lean delivered the opinion of the court:

This is an appeal from the decree of the Circuit Court for the District of Columbia. The facts out of which the controversy arises are substantially as follows:

At April Term, 1822, the Union Bank of Georgetown recovered two judgments against George Peter, amounting, exclusive of costs, to the sum of seven thousand nine hundred and thirty-four dollars.

On the 9th of April, 1824, George Peter executed a deed of trust to Thomas Peter and Robert P. Dunlop, which was supposed, at the time, to include all the real property owned by George Peter within the District of Columbia. The conveyance was made in trust to indemnify Thomas Peter, who had become the indorser of George to a large amount. A great number of debts were enumerated in the deed, and among others, one to the Bank of the United States of twelve thousand dollars; which were designed to be paid in whole or in part, by the sale of the property included in the deed of trust.

Before any act was done under this deed, Dunlop relinquished the trust to Thomas Peter, his co-trustee.

The judgments of the Union Bank, above This cause came on to be heard on the tran-stated, were not embraced by the deed of trust. script of the record from the Circuit Court of the United States for the District of Columbia, holden in and for the County of Washington, and was argued by counsel; on consideration whereof, it is decreed and ordered by this court that the decree of the said Circuit Court in this cause be, and the same is hereby affirmed with costs.

123*]

On the 19th May, 1824, the Bank of the United States recovered a judgment of five thousand dollars against George Peter, as indorser or drawer with John Peter.

In September, 1829, the property conveyed in trust was sold by Richard Smith, cashier of the Branch Bank of the United States; who had been appointed by Thomas Peter, with the consent of the creditors, to act as agent in the premises. The net proceeds of the sale, deduct

THE BANK OF THE UNITED ing certain charges, were $37,285.90, an
STATES, Appellants,

V.

GEORGE W. PETER et al., Appellees.

Payment of senior incumbrancer by junior right of subrogation.

It is a well settled principle in equity that a judgment creditor, where he is compelled to pay off

NOTE-Junior incumbrancer, rights of, to have prior incumbrances assigned to him, and to be substituted. Right of subrogation.

A junior incumbrancer is entitled to redeem a prior mortgage. And the redeeming party, who is not himself liable as a principal debtor, but who is compelled to redeem for the protection of his own llen upon the mortgaged premises, is entitled to

amount insufficient to discharge all the debts. The judgments of the Union Bank, though not included in the "deed of trust, con- [*124 stituted a lien on all the real property of George encumbered titles to purchasers at the above Peter in the district; and in order to give un.

sale, Richard Smith, with the consent of the creditors and Thomas Peter, paid those judg ments out of the proceeds of the sale; but satsubrogation to the rights of the senior mortgagee. Jenkins v. Continental Ins. Co. 12 How. Pr. N. Y. 66; Dauchy v. Bennett, 7 How. Pr. N. Y. 375; Russell v. Howard, 2 McLean, 489.

After tendering to a senior mortgagee the amount due, and demanding an assignment of the senior mortgage, a junior mortgagee may, by bill in equity, compel such assignment. Pardee v. Van

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