An important application of the doctrine of subrogation occurs in the case of an invalid sale for the purpose of foreclosing a mortgage, whether under a decree of court or under a power of sale in the mort-gaŁej In such case, the purchaser paying the purchase money, which is applied to the payment of the debt secured by the mortgage, he is ordinarily regarded as subrogated to the rights of the holder of the mortgage.22

A payment of part only of the debt gives no right of subrogation, in the absence of express agreement therefor at the time of payment, or unless the balance of the debt has been previously paid, but the person so paying may take an assignment of part of the mortgage to secure him.23

If one is primarily liable for the debt, as between himself and others, the fact that on paying the debt he takes an assignment is immaterial. His payment discharges the debt, regardless of his endeavor to prevent this result by taking the assignment.24

3 Pac. 92; Heisler v. C. Aultman & Co., 56 Minn. 454 45 Am. St. Rep. 486, 57 N. W. 1053; Stantons v. Thompson, 49 N. H. 272; Barnes v. Mott, 64 N. Y. 397; Johnson v. Tootle, 14 Utah, 482, 47 Pac. 1033. But see Hayden v. Huff, 60 Neb. 625, 83 N. W. 920, 63 Neb. 99, 88 N. W. 179.

22. Jordan v. Sayre, 29 Fla. 100; Dutcher v. Hobby, 86 Ga. 198, 10 L. R. A. 472, 22 Am. St. Rep. 444, 12 S E. 356; Bruschke v. Wright, 166 III. 183, 57 Am. St. Rep. 125, 46 N. E. 813; Wilson v. Brown, 82 Ind 471; Equitable Mortgage Co. v. Gray, 68 Kan. 100, 74 Pac. 614; Johnson v. Robertson, 34 Md. 165; Martin v. Kelly, 59 Miss. 652; Crosby v. Farmers' Bank of Andrew County, 107 Mo. 436, 17 S. W. 1004; Pettit v. Louis, 88 Neb. 496, 34 L. R. A. (N. S.)

356, 129 N. W. 1005; Harding v. Gillett, 25 Okla. 199, 107 Pac. 665; Cooke v. Cooper, 18 Ore. 142, 7 L R. A. 273, 17 Am. St. Rep. 709, 22 Pac. 945; Brewer v. Nash,

16 R. I. 458, 27 Am. St. Rep. 749,

17 Atl. 857; Griffin v. Griffin, 82 S. C. 256, 64 S. E. 160; Jones v. McKenna, 4 Lea (Tenn.) 630; Lawrence v. Murphy, 45 Utah, 572, 142, 147 Pac. 903; Smithson Land Co. v. Brantigam, 16 Wash. 174, 47 Pac. 434;Brobst v. Brock, 10 Wall. (U. S.) 519, 19 L. Ed. 1002, And see post, Sec. 656, note 88.

23. Stuckman v. Roose, 147 Ind. 402, 46 N. E. 680; Commonwealth of Virginia v. State, 32 Md. 501, 545; Troxell v. Silverthorn, 45 N. J. Eq. 330, 12 Atl. 614, 19 Atl. 622; Kyner v. Kyner, 6 Watts. (Pa.) 221; Sheldon, Subrogation, Sec. 127.

If one paying the mortgage debt is otherwise entitled to be subrogated to the rights of the creditor as against the debtor or against the land, the fact that, upon such payment, an acknowledgment of satisfaction or release is entered upon the records is immaterial,25 except as against a third person who purchases the property or otherwise changes his position on the strength of the record satisfaction or release.26 A sub sequent purchaser has a right to assume, in the absence of knowledge otherwise, that the satisfaction or release of record was based on payment made by the per24. Clay v. Banks. 71 Ga 363; Drury v. Holden, 121 III. 130, 13 N. E. 547; Bunch v. Grave, 111 Ind. 351, 12 N. E. 514; Moore v. Olive, 114 Iowa, 650, 87 N. W. 720; Kingsley v. Purdom, 53 Kan. 56, 35 Pac. 811; Kelly v. Jenness, 50 Me. 455, 79 Am. Dec. 623; Pike v. Goodnow, 12 Allen (Mass.) 472; Byles v. Kellogg, 67 Mich. 318. 34 X. W. 671; Hussey v. Hill, 120 N. C 312, 58 Am. St. Rep. 789, 26 S. E. 919; Cooley's Appeal, 1 Grant (Pa.) 401; Dargan v. McSween, 33 S. C. 324, 11 S. E. 1077. But it has apparently been decided in New York that a debtor paying his mortgage debt may have it assigned by the payee to one who is his creditor to the amount of the payment, this being regarded as in effect a purchase by such creditor. Champney v. Coope, 32 N. Y. 543; Hubbell v. Blakeslee, 71 N. Y. 63; Coles v. Appleby, 87 N Y, 114. And see Sheddy v. Geran, 113 Mass. 378.

25. Home Sav. Bank \. Bier-stadt, 168 III. 618, 61 Am. St. Rep

146, 18 N. E. 161; Johnson v. Bar rett, 117 Ind. 551, 10 Am. St. Hop. 83, 19 N. E. 199; Cobb v. Dyer, 69 Me. 194; Gato v. Christian. 112 Me. 427, 92 Atl. 489; Milholland v. Tiffany, 64 Md. 455, 2 Atl. 831; Gerdine v. Menage, 41 Minn. 417, 43 N. W. 91; Whitney v. Lowe, 59 Neb. 87. 80 N. W. 266; Hammond v. Barker, 61 N. H. 53: Rossiter v Sanaghiaro, 78 N. H. 484. 102 Atl. 759; Kocher v. Kocher, 56 N J Eq. 545, 39 Atl. 535; Arnold v. Green, 116 N..Y. 566, 23 N. E. 1: Commercial & Farmers' Nat. Bank v Scotland Neck Bank, 158 N.C 238, 73 S. E. 157; Duffy v. Mc-Guiness, 13 R. I. 595; Anderson v. Robertson, 137 Tenn. 182, 192 S. W. 917; First Nat. Bank of Houston v. Ackerman, 70 Tex. 315, 8 S. W. 45; Johnson v. Tootle, 11 Utah, 482, 47 Pac. 1033.

26. Persons v. Shaeffer, 65 Cal. 79, 3 Pac. 94; Richards v. Griffith. 92 Cal. 493, 27 Am. St. Rep. 156, 28Pac. 484: Home Savings Bank v. Bierstadt, 168 III. 618, 61 Am. St. Rep. 116, 48 N. E, 161;

3 R. P. - 26 son primarily liable, and that there is no right of subrogation in some third person.27

Whether one, who is entitled to subrogation upon paying the mortgage debt, can demand and compel an assignment to him by the creditor of the mortgage debt, does not appear to be entirely settled. In New York his right to an assignment appears to be fully recognized,28 while more generally, it seems, he is entitled to demand and compel an assignment only when he is personally liable for the debt as surety thereon.29 And by some cases it appears to be denied that a right to an assignment exists in any case.30

647. Marshaling of securities. When one holds a mortgage on two tracts of land, and a second mortgage or other lien in the hands of another person covers but one. of these tracts, the prior mortgagee may be compelled to resort first to the parcel not covered by the inferior lien, in order to leave the other, so far as possible, to the second lienor, and the latter is, in case the prior mortgagee does proceed against such other land in the first place, entitled to be subrogated to the rights of the prior mortgagee against the land covered by the first mortgage only, this being an application of the general equitable principle that one having two funds to satisfy his demands shall not, by his election, disappoint a person who has only one fund.31 The

Ahern v. Freeman, 46 Minn. 156, 24 Am. St. Rep. 206, 48 N. W. 677. See Rand v. Cutler, 155 Mass. 451, 29 N. E. 1085.

27. Ahren v. Freeman, 46 Minn. 156, 24 Am. St. Rep. 206, 48 N. W. 677; Amick v. Wood-worth, 58 Ohio St. 86, 50 N. E. 437; Clark Bros. v. Watson (Iowa), 159 N. W. 761.

28. Twombly v. Cassidy, 82 N. Y. 155; Clark v. Mackin, 95 N. Y. 346; Nelson v. Loder, 132 N.

Y 288, 30 N. E. 369. And see Hopkins Mfg. Co. v. Kellerer, 237 Pa. 285, 85 Atl. 421.

29. Bigelow v. Cassedy, 26 N. J. Eq. 557; Holland v. Citizens' Sav. Bank, 16 R. I. 734, 8 L. R. A. 553, 19 Atl. 654; Gatewood v. Gatewood, 75 Va. 407.

30. See Handley v. Munsell, 109 III. 362; Lumsden v. Manson, 96 Me. 357, 52 Atl. 783; Lamb v. Montague, 112 Mass. 352.

31. 3 Pomeroy, Eq. Jur., principle will not be applied, however, if it will in any way prejudice the first mortgagee, the mortgagor, or third persons.32 And, as before indicated,33 the prior mortgagee is not charged with notice of the debtor's right to such marshaling of the securities by the mere record of the junior mortgage or other lien.