Poluckie v. Wegenke

Maeshalu, J. It seems to be conceded by appellant, as might well be the case, upon the facts found which are not [437] now challenged, tbat tbe judgment is right so far as it secures plaintiff ber dower and homestead rights in the premises, subject to such rights as he acquired under the deed from Joseph, Sr., and the assignment of the land contract as reformed, given by Krause at the time the deed was made to him. But it is insisted by appellant that his title is referable to that of the deceased grantor of John through the conveyance to the latter and subsequent conveyances, instead of through the descent of such title to John and Joseph as heirs at law of their father and such transfer; that the condition precedent, arising out of the circumstance of the conveyance to John, as to the deceased, should not be regarded as having survived his death. . In that view it seems to be thought that appellant because of his dealings with Joseph, Jr., should be left an opportunity of subrogation to the rights of Krause under, at least, the mortgage outstanding at the death of Joseph, Sr., for the protection of his title against the claim of respondent, and the heirs of the latter other than John and Joseph, if there be any. Manifestly if appellant obtained by the judgment all he is ■entitled to, it is immaterial whether it be referable to the title of Joseph, Sr., through mesne conveyances or through descent to his heirs at law and such conveyances. We are unable to discover anything in the transaction between appellant and his grantor, Joseph, Jr., upon which the right of subrogation claimed can be grounded. Subrogation is based on rules of equity. It is a creation of the law whereby the substantial ends of justice may be accomplished regardless of contract relations. If a person for the protection of his title to property is compelled to pay off a lien thereon for a debt which he is not liable for, so that another having an interest in the property and who stands prior in obligation to pay the debt either because of being the debtor or being more immediate to the creator of the lien, will be relieved of the burden, equity immediately operates in favor [438] of the payor, jareserving the lien for his protection to the extent that he would otherwise suffer loss to such other’s gain. Charmley v. Charmley, 125 Wis. 297, 103 N. W. 1106. There is no such situation disclosed in the record as the one suggested nor opportunity therefor as regards protection of appellant. He took a quitclaim deed from Joseph, Jr., for a consideration of $1,910, to be paid, as appears, to Krause to-the extent of his mortgage interest and the balance to the former. He took with full knowledge of the rights of respondent, giving only the value of Joseph Jr.’s equity. That was the entire title so far as it reached John and Joseph by descent or otherwise, subject to whatever rights respondent had and subject to the Krause mortgage interest, the measure of which, as seen by the acts of the parties, was taken account of as a burden to be borne by appellant. If he speculated on the probability of acquiring plaintiff’s interest in the property upon the theory that she had irrevocably parted with it,, that such interest was her right to support under the contract given by John and had been parted with by the transaction with Krause, of course he must take the consequences after the ordinary manner of risks of speculation. As between him, Joseph, Jr., and the plaintiff, he, not they or either of them, is the one to discharge the mortgage burden on the property, as he seems to have recognized after the entry of judgment by electing to leave to Joseph, Jr., according to the original idea, the balance of the $1,910 named in the latter’s deed to him after deducting the amount requisite to discharge such interest. If there be any opportunity for subrogation under any circumstances it is a possession of the respondent against appellant in case of her having to pay Krause. Appellant had no equity in that regard; not the least. In this disposition of the case it becomes unnecessary to pass on the question of whether the decision below should have been limited to giving effect to the condition subsequent in the original transaction so far as necessary -to restore re439 spondeut to ber former position. In any event appellant got all be was entitled to as regards tbe parties before tbe court. If there are other heirs than John and Joseph, whose interests are contingent upon whether the deed to John should have been wholly superseded or only as to respondent, the rights of such heirs are not affected by the judgment nor are the rights of appellant as regards them. They should have been brought in on motion of appellant, or without any motion.' While there is some language in the complaint suggesting other heirs than those before the court, the findings are entirely silent in respect to the matter. On the whole, we have concluded to affirm the judgment because each party before the court got just what he or she was entitled to, and as between appellant and other parties interested, if there be such, the situation is unaffected by the judgment. By the Court. — The judgment is affirmed.