99. Southworth v. Scofield, 51 N. Y. 513.

1. Ante, Sec. 624, note 28.

2. Ante, Sec. 623, against the land, so as to take priority of others having junior incumbrances thereon or for other purposes.3 Nor can he assert a right of subrogation as against another part of the mortgaged land retained by his grantor, or subsequently conveyed by the latter to another.4 And one claiming under a grantee who has assumed stands, it has been decided, in the same position in this regard as his grantor.5 Conversely, the transferee having assumed the debt, the transferor is secondarily liable only, and is entitled to subrogation in case he pays the debt.6

3. Dodds v. Spring, 174 Cal. 412, 163 Pac. 351; Clay v. Banks, 71 Ga. 363; Ellis v. Bashor, 17 Idaho, 259, 105 Pac. 214; Drury v. Holden, 121 III. 130, 13 N. E. 547; Theisen v. Dayton, 82 Iowa, 74, 47 N. W. 891; Burnham v. Dorr, 72 Me. 198; McCabe v. Swap, 14 Allen (Mass.) 188; Ly-don v. Campbell, 204 Mass. 580, 91 N. E. 151; Probstfield v. Czizek, 37 Minn. 420, 34 N. W. 896; Nelson v. Brown, 140 Mo. 580, 62 Am. St. Rep. 755, 41 S. W. 960; Gul-ling v. Washoe County Bank, 24 Nev. 477, 56 Pac. 580; Kahn v. McConnell, 37 Okla. 219, 47 L. R. A. (N. S) 1189, 131 Pac. 682; Lackawanna Trust & Safe Deposit Co. v. Gomeringer, 236 Pa. 179, 84 Atl. 757; Dargan v. McSween, 33 S. C. 324, 11 S. E. 1077; De Roberts v. Stiles, 24 Wash. 611, 64 Pac 795; Martin v. C. Ault-man & Co., 80 Wis. 150, 49 N. W. 749. But see Capitol Nat. Bank v. Holmes, 43 Colo. 154, 16 L. R. A. (N. S.) 470, 127 Am St. Rep. 108, 95 Pac. 314; Johnson v. Tootle, 14 Utah, 482, 47 Pac. 1033, contra.

4. Wright v. Briggs. 99 Ind.

563; Johnson v. Walter, 60 Iowa, 315, 14 N. W. 325; Cushing v. Ayer, 25 Me. 383; Putnam v. Col-lamore, 120 Mass. 454; Pike v. Goodnow, 12 Allen (Mass.) 472; Russell v. Pistor, 7 N. Y. 171, 57 Am. Dec. 509; Champlin v. Williams, 9 Pa. 341.

5. Goodyear v. Goodyear, 72 Iowa, 329, 33 N. W. 142; De Roberts v. Stiles, 24 Wash. 611, 64 Pac. 795. See Hamilton v. Robinson, 190 Ala. 549, 67 So. 434.

6. Hamilton v. Robinson, 190 Ala. 549, 67 So. 434; Flagg v. Geltmacher, 98 III. 293; Howard v. Burns, 279 III. 256, 116 N. E. 703; Begein v. Brehm, 123 Ind. 160, 23 N. E. 496; Kinnear v. Lowell, 34 Me. 299; North End Sav. Bank v. Snow, 197 Mass. 339, 83 N. E. 1099; Minnesota Loan & Trust Co. v. Peteler Car Co., 132 Minn. 277, 156 N. W. 255; Ben-sieck v. Cook, 110 Mo. 173, 33 Am. St. Rep. 422, 19 S. W. 642; Pas-sumpic Sav. Bank v. Weeks, 59 N. H. 239; Stillman's Ex'rs v. Stillman, 21 N. J. Eq. 126; Ay-ers v. Dixon, 78 N Y. 318; Win ans v. Hare. 46 Okla. 741, 148 Pac.

If the transfer of the land by the mortgagor was not subject to the mortgage, and was unaccompanied by an assumption of the debt by the transferee, the mortgagor is primarily liable, the debt secured being his own debt, and he has consequently no right of subrogation on paying the debt.7 The transferee, on the other hand, under such circumstances, is entitled to pay the debt and then assert a claim by way of subrogation.8 And so if the conveyance was of a part of the mortgaged land, the grantee is, on paying the debt, entitled to subrogation for the purpose of enforcing any rights which may exist in his favor as against other parts of the land.9

If the mortgage debt is paid by one having a junior lien, a mortgage or judgment for instance, he is entitled to be subrogated to the position of the mortgage credi-tor.10 Likewise, if the debt is paid by one who has an interest in the land of a limited duration, subject to the mortgages as, for instance, a conventional life estate,11 or a widow's dower or homestead estate,12 such person is entitled to be subrogated. And a merely inchoate right of dower has been regarded as sufficient for the purpose.13

1052; Hampe v. Manke, 28 S. D. 501, 134 N. W. 60; Stevens v Goodenough, 26 Vt. 676.

7. Young v. Morgan, 89 III. 199 (semble); Abbott v. Kasson, 72 Pa. St. 183; Walker v. King, 45 Vt. 525; Barnes v. Mott, 64 N. Y. 397. See Loverin v. Humboldt Safe Deposit & Trust Co., 113 Pa. St. 6, 4 Atl. 191. So when there is a covenant of title by the transferor sufficient to protect the transferee against the mortgage. Jones v. Lamar (C. C.) 34 Fed. 454; Maitlen v. Maitlen, 44 Ind. App. 559, 89 N. E. 966; Kelly v. Jen-ness, 50 Me. 455, 79 Am. Dec. 623; Butler v. Seward, 10 Allen (Mass.) 466; Wadsworth v. Williams, 100 Mass. 126; Byles v. Kellogg, 67 Mich. 318, 34 N. W. 671; Hooper v. Henry, 31 Minn. 264, 17 N. W. 476; Nixon v. Jullian, 72 Miss. 570, 18 So. 366. The effect of the covenant in this regard has been held to be removed by a subsequent conveyance "subject" to the mortgage. Merritt v. Byers, least he makes the payment in the belief that he has an interest in the land or that one who has requested him to do it has such an interest.15 But it does exist in favor of one who, though not personally liable, and without any interest in the land to protect, pays the mortgage debt at the request and for the benefit of the person primarily liable, with an agreement or understanding that he shall have the benefit of the existing mortgage.16 And one who loans money to the owner of the land in order to pay the mortgage debt, and takes another mortgage in order to secure him, is by the weight of authority entitled to the benefit of the prior mortgage, if the new mortgage turns out to be ineffective for purposes of security,17 although there are decisions to an opposite effect, that he has no right to subrogation, as against an intervening lien.18

46 Minn. 74, 48 N. W. 417. But as to this see ante Sec. 622, note 32.

8. Simpson v. Ennis, 114 Ga. 202, 39 S. E. 853; Hazle v. Bondy, 173 III. 302, 50 N. E. 671; Braden v. Graves, 85 Ind. 92; Holden v. Pike, 24 Me. 427; Lovejoy v. Vose, 73 Me. 46; Gleason v. Dyke, 22 Pick. (Mass.) 390; Brown v. Lap-ham, 3 Cush. (Mass.) 551; Ryer v. Gass, 130 Mass. 227; Mclntyre v. Agricultural Bank, Freeman (Miss.) 105; Bell v. Woodward, 34 N. H. 90; Newcomb v. Lubras-ky, 65 N. J. Eq. 125, 55 Atl. 89 (semble); Wadsworth v. Lyon, 93 N. Y. 201; Joyce v. Dauntz, 55 Ohio St. 538, 45 N. E. 900; Duffy v. McGuiness, 13 R. I. 595; Fears v. Albea, 69 Tex. 437, 5 Am. St. Rep. 78, 6 S. W. 286; Hudson v. Dismukes, 77 Va. 242; McNeil v. Miller, 29 W. Va. 480, 2 S. E 335; Lamberson v. Bailey, 158 Wis. 105, 147 N. W. 1066 (payment by remote grantee).