Diversity of opinion likewise prevails in regard to the right of a creditor whose debtor has received a promise to pay the debt, to sue both the new promisor and the original debtor. Courts which hold that the original contract is in effect an offer of novation to the creditor naturally hold that if the creditor accepts the promisor as his debtor he releases the original debtor, and on the other hand if he elects to sue the original debtor he thereby rejects the proffered novation and cannot afterwards sue the new promisor.96 The more common doctrine, however, allows the creditor a right against both the original debtor and the new promisor.97 And in some States
96Henry v. Murphy, 64 Ala. 246; Hall v. Alford, 20 Ky. L. Rep. 1482, 49 S. W. Rep. 444; Floyd v. Ort, 20 Kan. 162; Searing v. Benton, 41 Kan. 768, 21 Pac. 800 (compare Kansas Pac. Ry. Co. v. Hopkins, 18 Kan. 494, 499, and Piano Mfg. Co. v. Burrows, 40 Kan. 361, 19 Pac. 809. In the latter case the court said that "no one has the right to take the objection that the old debt is not extinguished, but the old debtor, and probably even he would not have such right"); Bobanan v. Pope, 42 Me. 93; Brewer v. Dyer, 7 Cuah. 337; Warren a. Batchelder, 16 N. H. 680; Wood v. Moriarty, 15 R. I. 618, 522, 9 Atl. 427; Phenix Iron Foundry v. Lockwood, 21 R. I. 566, 45 Atl, 646. See also Steinfdd v. Wing Wong, 14 Aria. 336, 128 Pac. 354; Blake v. Atlantic Nat. Bank, 33 R. I. 464, 82 Atl. 226, 39 L. R. A. (N. 3.) 874; McDvane 8. Big Stony Lumber Co.. 106 Va. 613, 54 S. E. 473; King v. Scott, 76 W. Va. 68, 84 S. E. 964.
In no case, however, has a court held that a mortgagee by seeking to recover against one who had assumed a mortgage released the mortgagor; and in Rouse v. Bartholomew, 51 Kan. 425, 32 Pac. 1088, the Kansas court held the mortgagor was not released though the decision is inconsistent in principle with the previous decisions of the court as to other debts.
In Young v. Hawkins, 74 Ala. 370, it was held that recovering judgment against the original debtor in ignorance that a new promisor had agreed to pay the debt did not bar a subsequent recovery against the latter. To make a binding election it was said knowledge of the facts is essential.
97 United States v. Illinois Surety Co., 226 Fed. 653, 661, 141 C. C. A. 409; Steinfeld v. Wing Wong, 14 Ariz. 336, 128 Pac. 354; Hopkins v. Warner, 109 Cal. 133, 41 Pac. 868; South Side Planing Mill Assoc v. Cutler Co., 64 Ind. 660; Davis v. Hardy, 76 Ind. 272; Rodenbarger v. Bramblett, 78 Ind. 213; Stanton v. Kendrick, 135 Ind. 382,389, 35 N. E. 19; Rothermel v. Bell &. Zol-ler Co., 79 111. App. 667; Wickham v. Hyde Park Assoc, 80 111. App. 523; Rouse v. Bartholomew, 51 Kan. 425, 32 Pac. 1008; Leckie v. Bennett, 160 Mo. App. 145, 141 S. W. 706; Davis v. Nat. Bank of Commerce, 45 Neb. 589, 63 N. W. 862; Stephany v. More, 82 N. J. 186, 82 Atl. 731; Fischer v. Hope Mut. Life Ins. Co., 69 N. Y. 161; Foe' p. Dixon, 60 Ohio St. 124, 129, 64 N. E. 86, 71 Am. St. Rep. 713; Feldman v. McGuire, 34 Oreg. 309, 313, 55 Pac. 872; Hawkins v. Western Nat. Bank (Tex. Civ. App.), 145 S. W. 722, he is allowed to join both as defendants in the same action.98 He ought to be compelled to do so.