Washington. Ordway v. Downey, 18 Wash. 412, 61 Pac. 1047, 52 Pac. 228, 63 Am. St. Rep. 892; Ver Planck v. Lee, 19 Wash. 492, 53 Pac. 724; Frasey v. Casey, 98 Wash. 422, 165 Pac. 104.

Wisconsin. Bishop v. Douglass, 25 Wis. 696; Kollock v. Parcher, 52 Wis. 393, 9 N. W. 67; Palmeter v. Carey, 63 Wis. 426, 21 N. W. 793, 23 N. W. 686; Enos v. Sanger, 96 Wis. 150, 70 N. W. 1069, 37 L. R. A. 862, 66 Am. St. Rep. 38; Morgan v. South Milwaukee Co., 97 Wis. 276, 72 N. W.

cause the subject of mortgages fell within the scope of equity jurisdiction, the attempt was early made by mortgagees to sue in equity those who had assumed an obligation to pay the mortgage, while no such attempt was made with other debts. The earlier cases were in New York, and the result of them is thus summarized in a later decision which first extended the mortgagee's right to a direct action at law.

"If the plaintiff had sought to foreclose the mortgages in question and to charge the defendant with the deficiency which might remain after applying the proceeds of the sale, and had made both the mortgagor and the present defendant parties, the authorities would be abundant to sustain the action in both aspects. "50

The earlier New York doctrine has had considerable following in other jurisdictions. Alabama,51 California,52 Connecticut,53 Indiana,54 Maryland,55 Michigan,56 New Jersey,57 North

872; States v. Thompson, 98 Wis. 329, 73 N. W. 774.

50 Burr v. Bows, 24 N. Y. 178, per Denio, J., citing Curtis v. Tyler, 9 Paige, 432; Halsey v. Reed, 9 Paige, 446; March v. Pike, 10 Paige, 695; King p. Whitely, 10 Paige, 466; Blyer v. Monholland, 2 Sandf. Co. 478; Vail v. Foster, 4 N. Y. 312; Trotter v. Hughea, 12 N. Y. 74,62 Am. Deo. 137; Belmont v. Coman, 22 N. Y. 438, 78 Am. Dec. 213. See also Wager v. Link, 150 N. Y. 649, 44 N. E. 1103.

51Young v. Hawkins, 74 Ala. 370.

52Williams v. Naftsger, 103 Cal. 438, 37 Pac. 411; Alvord P. Spring Valley Gold Co., 106 Cal. 647, 40 Pac. 27; Tulare County Bank v. Madden, 109 Cal. 312, 41 Pac. 1092; Hopkins v. Warner, 109 Cal. 133, 41 Pac. 868. In California by statute an independent action cannot be maintained even against the mortgagor on a debt secured by mortgage. Code Civ. Proa, Sec. 720. The mortgaged property must first be exhausted. Stockton Savings A Loan Soc. v. Harrold, 127 Cal. 612, 617, 60 Pac. 165.

53 Bamett v. Bradley, 48 Conn. 224. See also Gen. Stat., Sec.983; Morgan c. Randolph-Clowes Co., 73 Conn. 396, 398, 47 Atl 658, 61 L. R. A. 653.

54See early Indiana cases cited, supra, Sec.381, n. 27.

55 George v. Andrews, 60 Md. 26, 45 Am. Rep. 706; Chilton v. Brooks, 72 Md. 564, 20 Atl. 125; Stokes v. Det-riok, 75 Md. 256, 23 Atl. 848.

56 Crawford v. Edwards, 33 Mich. 354; Miller v. Thompson, 34 Mich. 10.

57Klapworth v. Dressier, 13 N. J. Eq. 62, 78 Am. Dec. 69; Pruden v. Williams, 26 N. J. Eq. 210; Crowell v. Currier, 27 N. J. Eq. 162; Crowell v. Hospital, 27 N. J. Eq. 650; Wise v. Fuller, 29 N. J. Eq. 257; Green v. Stone, 54 N. J. Eq. 387, 34 Atl 1099, 55 Am. St. Rep. 577; Whittaker v. Belvidere Co., 55 N. J. Eq. 674,688,38 Atl. 289.

Carolina,58 North Dakota,59 Vermont,60 Virginia,61 Washington,62 and the United States Supreme Court 63 have adopted it. The phrase commonly used is that the mortgagee is "subrogated" to the rights of the mortgagor, who is the promisee. The use of the word subrogation is not wholly fortunate. It suggests analogies which do not exist, with the position of a surety who has paid the debt. In fact, the relief granted is merely the application towards the payment of the debt by a court of equity of the mortgagor's property, consisting of the promise running to him from the grantee of the mortgaged premises; and whatever terminology is used there is no doubt that this is substantially the meaning of the courts which have followed the early New York decisions.

$ 385. Mortgagor Should Be Parry To The Suit

Even courts which derive the right of the mortgagee to sue the grantee from his right to enforce the mortgagor's rights, too frequently allow the suit to be maintained without joinder of the mortgagor. The essential reason why the proceeding should be in equity is because the mortgagor ought to be joined, since it is his property - that is, a promise to him - of which the plaintiff is seeking to avail himself, and that property should not be taken without giving the owner his day in court. Moreover, it is unfair to the grantee to charge him at the suit of the mortgagee unless at the same time all claim against him on the part of the mortgagor is extinguished. This cannot be judicially determined unless the mortgagor is joined.64

58Woodcock v. Bostic, 118 N. C. 822, 24 S. E. 362; Baber v. Hanie, 163 N. C. 588, 80 S. . 57.

59 Moorev. Booker, 4 N. Dak. 543,62 N. W. 607.

60 Davis v. Hulett, 58 Vt. 90, 4 Atl. 139; Hodges v. Phelps, 66 Vt. 303, 26 Atl. 626; Lamoille County Sav. Ac. Co. v. Belden, 90 Vt. 635, 98 Atl. 1002.

61 Willard v. Worsham, 76 Va. 392; Osborne v. Cabell, 77 Va. 462; Francisco v. Shelton, 85 Va. 779, 8 S. E. 789; Fisher v. White, 94 Va. 236, 26 8. E. 573; Ellett v. McGhee, 94 Va, 377, 26 S. E. 874.

62 Frasey v. Casey, 96 Wash. 422,165 Pac. 104.

63 Keller v. Aehford, 133 U. 8. 610, 10 S. Ct. 494, 33 L. Ed. 667; Willard v. Wood, 135 U. S. 309, 314, 10 S. Ct. 831, 34 L. Ed. 210. See also Winters v. Hub Mining Co., 57 Fed. 287- But in a case arising under the Arisona Code, which assimilates legal and equitable procedure, a direct action was allowed against the grantee in Johns v. Wilson, 180 U. S. 440, 21 S. Ct. 445, 45 L. Ed. 613.

64 In Keller v. Ashford, 133 U. S.610, 626, 10 S. Ct. 494, 33 L. Ed. 667,