On 6 March, 1869, the defendant sold and conveyed to one B. L. Scott a tract of land. Scott gave his note for the purchase money, and secured its payment by a mortgage on the land. On 15 May thereafter, the defendant assigned the note to the plaintiff, without endorsement, and at the same time gave the plaintiff a paper writing in the nature of a guaranty, by which the defendant agreed to guarantee the payment of the note in case the plaintiff failed to collect it.

At the time of the assignment, the defendant proposed to John H. Jones; the agent of plaintiff, who arranged the matter with defendant for his mother, to transfer the note and mortgage without any guaranty, which was declined by Jones, who said that he preferred the guaranty of defendant to the mortgage, and thereupon the assignment was made with the guaranty as aforesaid.

The plaintiff obtained judgment on the note, and sold Scott's equity of redemption under an execution issuing thereon for $84, and (174) then brought this action on the guaranty for the balance due on the note.

On the trial the only question was — whether the rights of the defendant under the mortgage passed to the plaintiff by virtue of the assignment of the note, and if so whether the plaintiff could maintain this action without and before a foreclosure of the mortgage. The question was reserved, and after a verdict for plaintiff, His Honor being of opinion with plaintiff, gave judgment accordingly, and the defendant appealed.

FAIRCLOTH, J.

The defendant held a promissory note against one Scott, secured by a mortgage on real estate. He transferred said note for value to the plaintiff without endorsement, and at the same time agreed in writing "to guarantee the payment of the aforesaid note to the said Jones, and in case she fails to recover the money on said note, that I (he) will pay to her the principal and interest and costs due thereon." At the time of the transfer the defendant proposed to plaintiff to transfer the note and mortgage without any guaranty, but the plaintiff declined this arrangement, saying that she preferred the guaranty of defendant to the mortgage. Judgment and execution were had on the note against Scott, under which only $84 could be realized, and this amount is credited by plaintiff on her claim. (175) She now demands payment from the guarantor, and he insists that she was bound to foreclose said mortgage before calling on him.

The first question discussed in this Court was whether the mortgage, under the circumstances in this case, passed to the plaintiff with the transfer of the note. It is well settled that the assignment of a note passes to the assignee, the mortgage or any other collateral security, unless the parties agree otherwise. Hyman v. Devereux, 63 N.C. 624.

Without discussing the question, we will assume that the mortgage and all the rights and remedies thereunder did pass to the grantee and consider the main question, which is, — has the guarantee performed the condition precedent to her right to sue the guarantor? In contracts of this kind the distinction between the guaranty of the payment of a note, and the guaranty for the collection of a note, or debt, is well marked out in books and adjudications on this subject. The former is an absolute promise to pay the debt at maturity if not paid by the principal debtor, and the guarantee may begin an action at once against the guarantor. The latter is a promise to pay the debt upon the condition that the guarantee shall diligently prosecute the principal debtor without success.

We think the present case belongs to the latter of the above classes, and that the rule applicable to the case derived from the contract, is the guarantor will pay. What amounts to due diligence is a question for the Court to decide in each case upon the facts found or admitted. Suppose a case of guaranty for collection, and before the maturity of the debt, the principal debtor should reside and remain in a distant State. It would not be reasonable to require the guarantee to go there and pursue the collection. Suppose the principal debtor can be shown by sufficient proof to be entirely and utterly insolvent at the maturity of the debt, and to continue so. This would seem to satisfy the demand of due diligence and excuse any (176) legal proceeding whatever. To sue would benefit no one. It would be a vain thing, and would incur useless expense and trouble. The usuual, [usual] mode of collecting money on a note is by judgment, and execution, and there is nothing in the agreement to indicate that the plaintiff was to pursue more than the usual remedies. Foreclosure of a mortgage is generally dilatory and troublesome, and this may have been the reason why the plaintiff would not purchase without defendant's guaranty. In Camden v. Doremus, 3 How., 515, it is held that "the diligent and honest prosecution of a suit to judgment with a return of nulla bona has always been regarded as one of the extreme tests of due diligence." The guaranty is only required to employ the usual legal means of collecting, and this is all that is implied in the agreement if "she fails to recover the money on said note." The only case we find directly in point is reported in 4 Wisconsin, 214, Day v. Elmore, where it is said "that the return of the execution unsatisfied is evidence of the exhaustion of the legal means of collection. The guarantee is not obliged to pursue right, credits, etc., by collateral or unusual remedies." In this case it was expressly decided that the guarantee was not compelled to foreclose a chattel mortage [mortgage] after judgment and execution unsatisfied before his right of action arose against the guarantor. 2 Parsons Notes and Bills, 142; Brockett v. Rich, 23 Amer., 703.

Our opinion then is that plaintiff may recover, and that the defendant will be subrogated to the rights and remedies of plaintiff under the mortgage.

Let judgment be entered here for plaintiff.

PER CURIAM. Judgment affirmed.

Cited: Jenkins v. Wilkinson, 107 N.C. 709; Guilford v. Georgia, 112 N.C. 37; Sullivan v. Field, 118 N.C. 360; Hutchins v. Bank, 130 N.C. 287; Cowan v. Roberts, 134 N.C. 419; Voorhees v. Porter, Ib., 601; Mudge v. Varner, 146 N.C. 149.

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