Claim and Delivery — Chattel Mortgage — Lien — Payment of Note by Surety — Discharge of Debt and Lien Securing it.
1. Payment of a note by a surety without having it transferred to a trustee for his benefit is a discharge of the debt and an extinguishment of a lien by which it was secured; therefore,
2. Where V., a surety on a purchase-money note for a horse, retaining title and duly recorded, paid it and did not have it transferred to a trustee for his benefit, and the principal debtor, after mortgaging the horse to another person, delivered it to V., the mortgagee has a first lien and is entitled to possession.
AVERY, J.
When the surety Vinson paid the note in full on (64) 9 November, 1897, and failed to have it assigned to a trustee for his benefit, the debt was discharged. Peebles v. Gay, 115 N.C. 38; Lyles v. Rogers, 113 N.C. 197, and authorities there cited. The satisfaction of the debt extinguished the vendor's lien, and the legal estate in the horse, at the time in the possession of Solomon, vested in his mortgagee, who had then a first lien on it, and, on breach of the condition, the right to recover the possession of the horse, as he seeks to do in this action. The judgment of the court below is
Affirmed.
Cited: Dunn v. Beaman, 126 N.C. 766; Burnett v. Sledge, 129 N.C. 120.