tion was made or subsequently, or whether or not the surety knew of its existence; the creditor's duty is the same in either case. 22 An early opinion stated the rule which has been followed both at law and in equity: "Now it seems to be a well-settled principle in equity, that a creditor who has the personal contract of his debtor, with a surety, and has also or takes afterwards property from the principal as a pledge or security for his debt, is to hold the property fairly and impartially for the benefit of the surety as well as himself, and if he parts with it without the knowledge or against the will of the surety, he shall lose his claim against the surety to the amount of the property so surrendered." 23 It should be noted that a different result follows where the creditor prejudices the surety by releasing security placed in his possession by the debtor for the payment of the debt, and where he is given a mortgage on property which remains in the possession and control of the mortgagor-principal. In the first case, the surety is pro tanto discharged; in the second the obligee owes no duty to the surety to acquire the possession of the mortgaged property.24 § 112. The effect of a judgment upon the debtor's realty. The object of a judgment is to compel payment by the debtor. A judgment, by operation of law, becomes a lien on the defendant's realty, which, unless otherwise discharged, continues until the debt is paid. It is incapable of enforcement as an independent lien, but by levy of execution. Until the debt is paid, 22 The syllabus by the court in Dempsey v. Bush et al. (1868) 18 Oh. St. 376, says: "A surety against whom and his principal judgment has been recovered, has the right, in equity, on paying the amount due on the judgment, to be subrogated to the rights of the judgment creditor in the judgment; and this right of the surety will not be defeated by the fact that there was no stipulation therefor by the surety at the time of making the payment, nor by the fact that he was at the time ignorant of the existence of such right." Aecord: Pledge v. Buss (1860) Johnson, 663, 667, 70 Eng. Rep. Reprint 585; Duncan, Fox & Co. et al. v. North and South Wales Bank et al. (1880) 6 App. Cas. 1. 23 Baker v. Briggs (1829) 8 Pick. (Mass.) 121, 128-129, 19 Am. Dec. 311. 24 Freaner v. Yingling et al. Trus tees (1872) 37 Md. 491, 499. the object of the law is not accomplished.25 The United States Supreme Court gave expression of the rule in this language: "A judgment lien on land constitutes no property or right in the land itself. 'It only confers a right to levy on the same, to the exclusion of other adverse interests subsequent to the judgment; and when the levy is actually made on the same, the title of the creditor for this purpose relates back to the time of judgment, to cut out intermediate incumbrances.' Subject to this charge, the defendant may convey the land. 'A judgment creditor has no jus in re, but a mere power to make his general lien effectual, by following up the steps of the law.'" 26 The judgment itself, under the old common law, created no lien; but under a statute of 13 Edw. I, doubtless enacted in sufficient time to become a part of the common law adopted in the United States, a lien was created by the writ of elegit after the judgment. A recent opinion, in tracing briefly the development of liens on realty, after pointing out that a judgment lien is a creature of statute arising only by operation of law, creating a right preferential to certain adverse interests, continues: "At common law a judgment per se created no lien on real estate, nor could the lands of the judgment debtor be sold on execution. As the social and commercial life of the English people changed and became more complex, it became necessary to enact a statute giving to the creditor the security by way of a lien as known to the modern law. This first finds expression in the Statute of Westminster 2 (13 Edw.I), commonly known as the statute de mercatoribus. This authorized the judgment creditor to sue out the writ of elegit, which subjected the goods of the debtor to execution and sale, and, if insufficient for the purpose, the creditor was entitled to a moiety of the freehold estate of the debtor. It will be observed that it was the writ, and not the judgment, that created the lien." 27 Thus, it is seen judgment liens on realty are of statutory origin, and the time the lien attaches and the effect of a judg 25 Planters' Bank v. Calvit (1844) 3 Smedes & Marshall (Miss.) 143, 41 Am. Dec. 616, 618. 26 Massingill v. Downs (1848) 7 How. 760, 767. 27 Beatty v. Cook (1921) 192 Ia. 549, 185 N. W. 360, 361. In Todd v. Todd (1919) 214 Ill. App. 282, 287, it is said: "At common law a judgment created no lien upor ment are dependent upon the interpretation of the statute creating the lien. They entry of the judgment creates a lien on the realty in some states, while in others a transcript thereof must be filed with some public official. Different provisions may be found elsewhere.28 Judgments and decrees of Federal courts become liens in a state to the same extent and under the same conditions as if the judgment or decree had been rendered by a court of general jurisdiction of such state. And the judgment of a Federal court ceases to be a lien in the same manner as a judgment of such state terminates as a lien.2 29 Where a judgment against the principal debtor becomes a lien on his land situated in any jurisdiction, its release by the creditor will discharge the surety to the extent of the value of the land upon which it exists. Once the judgment attaches as a lien under the law of the state in which the realty is situate, this statement by the West Virginia Supreme Court of Appeals seems to be accepted: "On the 17th day of August, 1891, the attachment debtor and creditor went into court, and without the knowledge or consent of Ward Parsons, the surety, by their own agreement and consent caused not only the setting aside of the order of sale of the personal property, which was right enough, but set aside the personal decree which bound Barnett's land, and consented that none other should be entered during that term. The liability of a surety is strictissimi juris. If the creditor deprives the surety of any right which he would have had against the original debtor, the surety is discharged. . . . . Here the lands of a defendant. The lien of judgments on real estate and the power to sell lands under execution are regulated alone by statute. The lien only attaches and becomes effective by force of the statute, and only in the mode, at the time, and upon the conditions and limitations imposed by it. It receives no vigor or even aid from the common law, to which it was unknown."' For an excellent dis cussion of the effect of judgments on the debtor's property, see McMillan et al. v. Davenport (1911) 44 Mont. 23, 118 Pac. 756, Ann. Cases 1912-D, 984. 28 See Freeman on Judgments (1925) Vol. II, Sections 918 and 936. 29 See Act Aug. 1, 1888, c. 729; 25 Stat. 357; R. S. Sec. 967; Act July 4, 1840, c. 43, § 4; 5 Stat. 393. the creditor has, by having the decree set aside, taken from the surety the equity of subrogation to the lien on Barnett's real estate, which was incident to the decree." 30 § 113. The effect of a judgment upon the debtor's personalty. A recent text says of the effect of judgment upon the debtor's personalty that: "While in some states personal property has been made a subject of lien, generally the statutes confine the lien to real property or interests therein, and either expressly or impliedly limit the lien to property or interests which may be levied upon and sold under execution." 81 The judgment creditor, in most jurisdictions, therefore, does not acquire any lien until the personalty is seized under a writ of execution. Prior to the levy, the creditor may suspend further action.32 This excerpt from a judicial opinion seems in accord with the view recognized by American authorities, where the statute does not make the judgment a lien upon personalty: "The delivery of the execution to the sheriff is not, properly speaking, a lien upon the goods of the debtor: it is the levy which makes the lien; that, it is true, has relation, to some extent, (i. e. as against mesne purchasers, but not as against other execution creditors), to the delivery to the sheriff, but in like manner, and to the like effect, and upon the same policy that a judgment lien on lands has relation to the first day of the term. There can be no relation of a judgment lien without a judgment, and so there can be no relation of a levy lien without a levy.''33 But once the levy on the principal's personalty has been made, a withdrawal of the execution is an abandonment of the levy, requiring a return of the goods to the creditor. The result 80 First National Bank of Cumberland et al. v. Parsons et al. (1896) 42 W. Va. 137, 24 S. E. 554, 559. 31 Freeman on Judgments (1925) § 936. See also § 938. 82 See Summerhill et al. v. Tapp (1875) 52 Ala. 227; Crawford v. 33 Humphrey v. Hitt (1850) 6 Gratt. (Va.) 509, 527, 52 Am. Dec. 133. is a discharge of the sureties, 34 because "a levy, as to the surety, is a satisfaction.'' 85 If, however, the obligee withdraws the execution in consideration of security of equal or greater value than the property levied upon, the surety is not discharged.86 § 114. Alteration of the surety's undertaking. Two distinct things must be noted in any consideration of an altered instrument: (a) Is it to be decided under the Negotiable Instruments Law (b) Is the alteration on the instrument which the surety has undertaken to perform, or is it an agreement by a separate instrument to change some provision of the undertaking to which the surety was a party? The second question will be discussed in the succeeding section as well. It may be stated as a rule controlling non-negotiable undertakings, and negotiable instruments prior to the adoption of the Negotiable Instruments Law, that any material alteration on the face of a written instrument will avoid it, if made after its delivery and by one claiming a benefit thereunder. In determining the materiality of any alteration made on the contract, it has been said: "Whether an alteration is material does not depend upon whether it increases or reduces the maker's liability. The 34 The State Bank v. Edwards and Walke (1852) 20 Ala. 512; Curan v. Colbert (1847) 3 Ga. 239, 146 Am. Dec. 427. It was said in the opinion in Hyde v. Rogers, Sheriff, et al. (1884) 59 Wis. 154, 161, that: "After levy upon the property of one joint debtor a creditor cannot countermand the levy so as to seize the property of the other debtor. So far as the rights of third persons are concerned, the levy upon goods is a satisfaction to the extent of their value, unless the plaintiff is deprived of the benefit of his levy without any fault of his."' 35 Brown v. Executors of Riggins (1847) 3 Ga. 405, 413. Accord: Mt. Sterling Improvement Co. v. Cockrell (1902) 24 Ky. Law Rep. 1151, 70 S. W. 842; Springer v. Toothaker (1857) 43 Me. 381, 69 Am. Dec. 66. 36 Young v. Cleveland (1862) 33 Mo. 126, 82 Am. Dec. 155. 37 Davis v. Bauer (1884) 41 Oh. St. 257, 261. the true subject of inquiry in such a case as this is not as to whether the change made in the principal contract without the surety's assent was or could be prejudicial to him, but is as to whether it effected a material alteration of the agreement to which his undertaking of suretyship related. If it did, as in this case is indubitable, he was relieved from liability, and for the obvious reason that the identical contract to which |