Hubbard v. Le Barron

Waterman, J. Plaintiff’s right to succeed is dependent upon his establishing two propositions: (1) That theBinkley mortgage was superior to the claim of the landlord, and (2) that he is entitled to. be subrogated to- the mortgagee’s-rights to the extent of the payment made on the mortgage debt. The evidence is in sharp conflict on the question whether-the mortgage was made before the cattle were taken upon the leased premises. The trial court must have found that it was. We may concede the correctness of this finding without any very close analysis of the facts in evidence, for our-holding on the other proposition disposes of the case. [444] II. The rule is that one having an interest in property, who pays off an incumbrance in order to protect his title; is-, entitled to subrogation. Sheldon on Subrogation, section 12 Goode v. Cummings, 35 Iowa, 67. But a purchaser cannot be subrogated to the benefits of - an incumbrance which he has agreed to pay; Sheldon on Subrogation, section 47; Bolton v. Lambert, 72 Iowa, 483; Goodyear v. Goodyear, 72 Iowa, [445] 329; Kellogg v. Colby, 83 Iowa, 513; Witt v. Rice, 90 Iowa, 451. We think it clearly appears that the consideration of plaintiff’s purchase of the cattle consisted in great part of the payment on the Binkley mortgage. The mortgagee was not consulted in the transaction between plaintiff and Scurloek, nor did the latter request that the •mortgage be paid, though he did say that a sale could not be lawfully made unless this was done. What occurred between plaintiff and Scurloek when the sale was made is thus fold by plaintiff: “I did not consult Binklev. but asked Scurlock if he had a right to sell the property, and he said he had ;as long as the money or proceeds went to Binkley.” On cross- ■ examination he continues: “I first made arrangements'with Scurloek for the purchase of the cattle. We agreed on the .amount to be paid. When we had done that, he informed me about the Binkley mortgage, and I'told him I would have "to pay the money directly to Binkley in order to perfect my title to the cattle; and so it was agreed between Scurloek ■and me that the purchase money, or at least one hundred -dollars of it, ■ should apply upon the Binkley mortgage.” Plaintiff’s conclusion that he made the payment to the mo-rt.gagee in order to perfect his title is to be accorded no weight, for his statement of the facts shows that this payment was made in order to procure title. Scurloek disclaimed a right to sell unless one hundred dollars of the purchase price was paid to Binkey, and itm pursuance of this understanding the ■sale was made. The testimony of Scurloek, which we do not feel called upon to set out, strengthens this conclusion. The •evidence brings the case strictly within the rule of the authorities last cited. 2 III. There is still another reason for denying to plainfiff the right of subrogation. Binkley’s debt has-been only partially paid. Under no circumstances would the right claimed exist, except upon full satisfaction of the prior incumbrance. Brandt on Suretyship-, section :306,and cases cited therein; Sheldon on Subrogation, sections [446] 14, 25) 70. For the reasons given, the judgment -must be= REVERSEp. Granger, O. J., not sitting.