Johnson,  the  owner  of  certain  property,  gave  a  mortgage  on  It  to
one  Root  to  secure  the  payment  of  a  bond  to  which  the  mortgage  was
collateral.  Subsequently  Johnson  sold  the  property  to  one  Comstock
"subject"  to  the  mortgage  in  question.  The  mortgage  formed  part  of
the  consideration  of  the  transfer,  Comstock  paying  the  price  of  the
property,  less  the  amount  of  the  mortgage.  Comstock  afterwards  sold
the  property  to  Mrs.  Zink.  wife  of  the  defendant,  and  agreed  to  pay
the  mortgage  when  it  came  due.  Comstock  did  not  fulfill  this  agree-
ment, and  defendant  then  bought  the  mortgage  and  bond,  and  com-
menced suit  against  Johnson  on  the  bond.  Johnson  then  tendered
defendant  the  amount  due  on  bond  and  costs,  and  requested  defendant
to  execute  an  assignment  of  bond  and  mortgage;  this  defendant  refused
to  do.  Johnson  then  commenced  this  proceeding  to  restrain  prosecution
of  action  on  bond  and  for  the  subroigation  of  plaintiff  or  some  person
nominated  by  him  to  the  right  of  the  defendant  on  payment  of  amount
due  on  bond  and  mortgage.  The  court  held  that  on  the  transfer  of  the
property  from  Johnson  to  Comstock  "subject"  to  the  mortgage,  the
land  became  the  primary  fund  for  the  payment  of  the  debt,  and  John-
son thereby  became  a  surety  for  its  payment.  Johnson  was  held  to  be
still  liable  on  the  bond.  "Equity,  however,  requires  that  the  obligor
(Johnson)  on  the  payment  of  the  debt  out  of  his  own  funds,  should  be
subrogated  to  the  rights  of  the  obligee,  so  that  he  can  re-imburse  him-
self by  a  recourse  to  the  mortg.aged  premises.  This  cannot  prejudice
the  creditors;  and  it  is  clearly  equitable  as  between  the  creditor  and
owner  of  the  land."

The  judgment  of  the  lower  court  granting  relief  asked  for  by
plaintiff  was  therefore  affirmed.
