The decree on appeal directing the subrogation of Edwin Allen to the lien of the judgment settled the right to subrogation as against the parties to the suit, and all persons bound by the decree, but does not itself execute or work out the subrogation, and on the remittitur the cause is now before this court for that purpose. At the time of filing the original bill, the Mapes company, as judgment creditor, and Cornelius N. Conover, as judgment debtor, and owner of the lands, subject to the judgment and levy, were the only persons directly interested either in the judgment, or in the mortgaged chattels or land, and if this situation had continued pending the suit and until the remittitur, the subrogation would have been worked out by a decree (on supplemental bill, if necessary) that upon payment of the judgment by the receiver, the judgment creditor assign the judgment to Edwin Allen for the collection thereby of the amount found due to him by the decree. If the security to which subrogation was to be made were a decree of this court made in the suit, or an equitable lien, like a mortgage, before the court for foreclosure or redemption, then the subrogation might be effected directly by a decree of this court directing the sale of the lands to pay the party entitled to be subrogated. But the judgment is a purely legal lien on lands which were not and could not be subject to the direct order or decree of this court in the suit, and the only control over the lands subject to the judgment is by directions as to the legal ownership or control of the judgment. The right to subrogation is not the same as the right to an assignment, but an actual, assignment may be necessary in order to effect subrogation. 3 Pom. Eq. Jur. (3d ed.) 1214. In Hill v. White, 1 N. J. Eq. (Sax.) 435, an assignment of a mortgage was directed for this purpose, while in Bigelow v. Cassedy, 28 N. J. Eq. (11 C. E. Gr.) 557 (Court of Errors and Appeals, 1875), it was held that no assignment was necessary, the lands to be sold being under foreclosure in the suit. In the present case the principle of subrogation has been extended to a new class of cases, viz., cases arising under the Recording acts, where the grantee or mortgagee has failed to comply with these acts, and his property has been subsequently taken by a judg

ment creditor to pay the debts which the grantor or mortgagor, having conveyed with warranty, was, as between him and his grantee, liable to pay. This principle was applied in a case where the property of the mortgagee was taken by a decree of the court, and the right to subrogation arose by reason of this taking, and all the parties interested (mortgagee, judgment creditor and mortgagor) were before the court in relation to the proceeds of the mortgaged property, and were at the time of the decree apparently the only persons interested. I think the subrogation must be carried out in a case of this kind by considering the mortgagee as equitably entitled, by reason of the decree, to an actual assignment of the judgment, and that the cause on the supplemental bill must be disposed of on his equity to an assignment under the decree, modified or controlled, so far as the facts shown by any of the defendants entitle them to any modification of such right to an absolute assignment, either against Edwin Allen or between themselves. Subrogation, being an equitable right or remedy, is applied only with due. regard to the legal and equitable rights of others. Gaskill v. Wales, 36 N. J. Eq. (9 Stew.) 527, 533 (Court of Errors and Appeals, 1883). And all persons interested either in the judgment or lands covered by it at the time the subrogation is worked out are entitled to be heard as to their equities, either against the claimant of the right or against their co-defendants subject to the burden. As to the defendant Speyers, as assignee of the judgment and holder of a subsequent mortgage and judgment against Cornelius N. Conover on part of the lands, and as to the defendant Cornelius N. Conover, as the present owner of a portion of the lands levied on under the judgment, there is little difficulty. The assignment to Speyers was received with actual notice of the pendency of the suit, and that one of the objects of the suit was the marshaling of the securities. Speyers is chargeable in this respect with the knowledge of his attorneys, who were also Cornelius N. Conover's solicitors in the suit, and his answer shows that the assignment to him was held for the purpose of giving Cornelius N. Conover the benefit of the payment of the judgment from the mortgaged property. If the assignment of the judgment to Speyers could on the facts be

considered as a purchase of the judgment as a valid security against Conover, then Speyers' tenure of it and receipt of the money thereon under the decree was subject to any decree on appeal as to his right to receive the money in the hands of the receiver for the payment of the judgment and the conditions of its receipt. But from the answer of Speyers and the evidence in the case, it is clear that the transaction of the assignment, so far as Speyers and the judgment debtor are concerned, was not intended as a purchase of the judgment by Speyers as an outstanding security against Cornelius N. Conover, but was a payment of the judgment by his own money, raised by a mortgage on his lands, to Speyers, which was to be reimbursed to the debtor by means of the assignment, which kept the judgment alive for that purpose. Mr. Booraem, who acted for Conover, says Conover paid the judgment with his own money, which he borrowed from Speyers; that the judgment was assigned so that they could get out of it all they could for Conover and Mrs. Boice, and that so far as Speyers' mortgage was concerned, their only interest for him was to see that his interests were properly protected by the custody of the assignment of the judgment, and that the money received from the receiver was not to go to Speyers, but to Conover, as it belonged to him. This transaction is substantially a payment of the judgment debtor himself, and such payment, by the settled law of this state, discharges the judgment as against the judgment debtor and those who held interests in his lands subject to the judgment, and the judgment as to them cannot be kept alive by assignment. Traphagen v. Lyons, 38 N. J. Eq. (11 Stew.) 613, 616 (Court of Errors and Appeals, 1884), cites the cases from Bolles v. Wade, 4 N. J. Eq. (3 Gr.) 459 (Chancellor Haines, 1844). And the assignee of the judgment, even if a bona fide purchaser, takes subject to this defence of payment by the judgment debtor in favor of persons interested in the lands. Traphagen v. Lyons, supra, p. 618. A fortiori it must be subject to this defence if assigned and held for the benefit of the judgment debtor. The fact that the Mapes company did not know the money paid on the assignment was the debtor's money, and that it made the assignment as on a purchase by Speyers with his money, cannot

prevent the effect of the payment of the judgment by the debtor's money, for neither the judgment creditor nor debtor can revive or keep the judgment in force against those who have acquired rights in the lands intermediate the judgment and the assignment. Traphagen v. Lyons, supra, p. 617. This payment also discharged the judgment so far as it was a lien on the proceeds of sale in the hands of the receiver, and had the agreement for such payment been disclosed before the decree, or to the court on appeal, Edwin Allen, as mortgagee, would have been entitled to the fund in court, which was subsequently directed to be paid on the judgment. The decree directed that the money paid to the Mapes, &c., company should be paid in satisfaction of the judgment, and by keeping the judgment apparently alive by the assignment, Speyers, as assignee of the Mapes company, received the money as on a judgment still due from Conover as well as Allen, and in satisfaction of that judgment so far as the money extended. Having thus received the proceeds of sale under the decree unconditionally, and for the purpose of satisfying or paying the judgment as an outstanding valid lien, the judgment. as between Speyers and Conover, is to be considered as still alive and its lien restored for the purpose of payment. Speyers is estopped from denying that it was so received, and in any aspect of the case, whether considered as a purchaser of an outstanding judgment or as receiving the proceeds of sale representing to be valid a judgment already paid by the judgment debtor, he must now perform the conditions imposed by the court of appeals, under penalty of compensating the defendant. Edwin Allen, for whose benefit the conditions were imposed, if they cannot be complied with. The judgment being still uncanceled of record, it may, so far as Speyers and Cornelius N. Conover are concerned, be, in Edwin Allen's favor, declared as outstanding, and a lien on the lands still owned by Conover prior to the mortgage of Speyers, and the warrant and satisfaction piece, so far as they are concerned, will be declared void and the use of it enjoined. As to the judgment against Cornelius N. Conover obtained by George D. Nevins, administrator of Mrs. Boice, subsequent to the decision on appeal, the judgment of the Mapes company must also be considered a valid prior lien.

on the lands owned by Conover. Not only was the administrator an actual party to the suit on appeal after Mrs. Boice's death, but Mrs. Boice received from Cornelius N. Conover, the judgment debtor, the proceeds of sale, which were paid over by the receiver as on a valid outstanding judgment. The attorneys for Speyers and Cornelius N. Conover were also her attorneys in this transaction, and she is chargeable with notice of the source of the money paid to her and of the circumstances of its receipt by Cornelius N. Conover. For this reason, therefore, and also because they were actual parties to the suit, the subsequent judgment cannot be set up to defeat the right of subrogation given by the decree on appeal.

As to David A. Conover, the other tenant in common, and the defendants holding title under him to the lands partitioned by the voluntary deeds in December, 1895, the judgment, however, must be considered as paid by the judgment debtor at the time of the assignment, and their lands, under the rule in Traphagen v. Lyons, supra, were ipso facto relieved by the payment. This is the undoubted right of these claimants under David A. Conover, so far as relates to Speyers and Cornelius N. Conover. Neither of these persons could enforce the judgment against them, for two reasons-first, because the judgment was paid by the judgment debtor and the assignment in Speyers' name was held for Conover's benefit; second, because both of them accepted the partition and claim lands under it. Neither of them, therefore, could repudiate the partition. As to these owners, therefore, the question is whether Edwin Allen, as subrogated in equity to the judgment, and notwithstanding its payment by the assignment, is entitled to enforce it as still an existing lien on the lands conveyed to David A. Conover in the partition in the lands or the subsequent purchasers from him. Two of these purchasers—Mrs. MacLaughlin and Mrs. Parker-bought their lands expressly relying on the satisfaction piece, and on the statement that the judgment was paid so far as Cornelius N. Conover and his lands were concerned. These two were purchasers after Metlar, and as between Metlar and them their lands were first liable. Edwin Allen claims that as to all of these purchasers he is entitled to enforce the judgment as still