Bigelow v. Scott

McCLELLAN, C. J. Franks had the legal title to certain lands. The Scotts were the equitable, owners of it, having the equity to compel a conveyance from Franks as upon a resulting trust. Franks mortgaged the land to Mrs. Tyson to secure money presently borrowed. Mrs. Tyson had no notice of the Scott’s equity. After this the Scotts filed their bill to enforce the trust in their favor. While this- bill was pending, Franks borrowed money from Gay to pay off the Tyson mortgage, and the money was so used, said mortgage being formally discharged and satisfied; and executed to Gay a mortgage on the land to secure this loan. Some time after this, and while the Scotts’ said bill was still pending, Franks borrowed money from Mrs. Bigelow and to se 239 cure the same executed to her -a mortgage on this land. This loan was made and obtained for the purpose of securing money to pay off the said Gay mortgage, and out of the money so borrowed Franks paid to Gay the debt secured by the above mentioned mortgage to him. Assuming that Gay made the loan to Franks in contemplation of f¿he Tyson mortgage and for the purpose of Franks applying the money so loaned in payment of that mortgage, and that it was so applied, and that mortgage thereby discharged, Gay, his own mortgage being inoperative against the Sooths because he took it Kh pnidenn, would for the security and reimbursement of his loan to Franks, so applied to the discharge of the valid Tyson mortgage, be entitled to subrogation to the lien of the last mentioned mortgage under the doctrine of equitable assignments; the theory being that having paid off the existing mortgage at the. request of the mortgagor in just expectation that he rvould have, like security for his money he, though without previous interest in the land, is not a mere stranger and volunteer in respect of such payment, but had a right to intervene as he did, and is entitled to avail himself of the lien of the Tyson mortgage which he has discharged.—Bolman v. Lohman, 74 Ala. 507; Paulk v. Calloway, 123 Ala. 325; Scott v. Mortgage Co., 127 Ala. 161; Tait v. Mortgage Co., 132 Ala. 193; 31 So. Rep. 623. But we know of no case which would extend the right of subrogation to the lien of the Tyson mortgage to Mrs. Bigelow, nor, in our opinion, can it be extended upon sound principle. She did not pay off that mortgage, nor did she lend money to Franks with which to pay it off, nor was it paid off with her money. She paid off the Gay mortgage only and that was inoperative against the equity of the Scotts. It is true that Gay as an incident to the circumstances under which his mortgage was taken had a right, of action in equity to be sub-rogated to the Tyson mortgage, which he paid off — a right to have, the chancery court decree an assignment of the lien of that mortgage to'him; but this right was not secured by the Gay mortgage, and it was not in the contemplation of Mrs. Bigelow .when she paid the Gav mortgage; she did not know of its existence; she could 240 have had no expectation of succeeding to this mere cause of action in Guy; she did not pay Gay for it and take it over, if that Avere possible; she Asms an utter stranger to this right, a stranger to the Tyson mortgage, and she in no way connects herself with it. If in any sense it can be said that her money in fact discharged Gay’s right of action to enforce subrogation to the Tyson mortgage, the discharge Avas effected without and beyond intention on her part or on the part of Gay or Franks, and she would still be a stranger to it, just as Gay would have been had he made the loan of money to Franks without reference to that mortgage. On the facts of the case, we concur with the judge of the city court that Mrs. Bigelow’s mortgage Avas without efficacy against the equity of the Scotts, and, that equity having drawn to it the legal title by virtue of the decree on the bill of the Scotts against Franks, the Scotts are entitled to have the mortgage cancelled as a cloud on their title. Affirmed.