Boley v. Daniel
| Citation | 72 So. 644,72 Fla. 121 |
| Parties | BOLEY v. DANIEL. |
| Decision Date | 27 July 1916 |
| Court | United States State Supreme Court of Florida |
Appeal from Circuit Court, Escambia County; A. G. Campbell, Judge.
Suit in equity by Lee Daniel against Louis Boley and others. On the death of the defendant, Louis Boley, his executor, M. C Boley, was made defendant in his stead. From a decree for complainant, defendant appeals. Reversed.
Syllabus by the Court
Subrogation is the substitution of one person in the place of another with reference to a lawful claim or right.
Subrogation arises by operation of law where one, having a liability or a right or a fiduciary relation in the premises, pays a debt due by another under such circumstances that he is in equity entitled to the security or obligation held by the creditor whom he has paid. This is called 'legal subrogation.'
'Conventional subrogation' depends upon a lawful contract, and occurs where one, having no interest in or relation to the matter pays the debt of another, and by agreement is entitled to the securities and rights of the creditor so paid.
When a first mortgage lien existing against real estate is paid off and the lien discharged, the lien of a second mortgage thereon becomes at once, by operation of law, a first lien on the property; and this first lien, and the right to enforce it as such, are vested rights.
Courts of equity will not apply the doctrine of subrogation where to do so would be to deprive a party of a legal right.
Where a party who is under no duty, legal or otherwise, to pay a first mortgage debt, and has no interest in the property loans money that is used to pay off such first mortgage, and takes a mortgage on the same and other property, with an understanding with the mortgagor 'that he was to have a first lien on the property covered by said mortgage,' and 'in the belief that there were no other liens on the property caused to be satisfied on record the first mortgage,' with no agreement that the security of the first mortgage shall be kept alive for his benefit, there is no clear showing of a right to a conventional subrogation.
COUNSEL E. C. Maxwell, of Pensacola, for appellant.
Watson & Pasco, of Pensacola, for appellee.
This suit was brought against Louis Boley and others. After Boley's death his executor was made a party defendant in his stead. The purpose of the suit is to have a mortgage held by Daniel decreed to be a first lien on property upon which Boley has a mortgage prior in time to Daniel's mortgage and for incidental relief. From a decree on the pleadings granting the relief, the defendants appealed.
It appears that one Waters mortgaged property described as lot 4, block 131, to Leslie E. Brooks, to secure the payment of a note for $500. Brooks assigned the note and mortgage to a third party. Brooks acquired the property covered by the mortgage, and, the note being past due, Brooks borrowed $500 from Lee Daniel for the purpose of paying up the mortgage indebtedness, and executed to Lee Daniel a note for $500, with a mortgage on lot 4 and the south five feet of lot 5, block 131. Lee Daniel made the loan and took the mortgage from Brooks 'in the belief that there were no other liens on the property, and caused to be satisfied on record the first mortgage' given by Waters to Brooks. Leslie E. Brooks conveyed the property to Bessie B. Brooks, wife of Harry L. Brooks. After the execution of the mortgage from Waters to Leslie E. Brooks, 'and while the same was subsisting and outstanding, the defendant, Louis Boley, with full knowledge of the existence of the' note and mortgage from Waters to Brooks, acquired a mortgage lien on the property, which was duly recorded, but Lee Daniel 'had no actual notice or knowledge thereof' when he took his mortgage, 'and caused to be satisfied on record the first mortgage' from Waters to Brooks. At the time Lee Daniel 'made the loan aforesaid, it was understood and agreed between him and Brooks that he was to have a first lien on the property covered by said mortgage.' The question to be determined in whether Daniel is entitled to be subrogated to the rights of the first mortgagee whose mortgage was canceled upon payment, with money furnished by Daniel for that purpose.
Subrogation is the substitution of one person in the place of another with reference to a lawful claim or right. Subrogation arises by operation of law, where one having a liability or a right or a fiduciary relation in the premises pays a debt due by another under such circumstances that he is, in equity, entitled to the security or obligation held by the creditor whom he has paid. This is called 'legal subrogation.' Conventional subrogation depends upon a lawful contract, and occurs where one having no interest in or relation to the matter pays the debt of another, and by agreement is entitled to the securities and rights of the creditor so paid. See Sheldon on Subrogation, §§ 2, 140; Rice v. Winters, 45 Neb. 517, 63 N.W. 830; Watson v. Wilcox, 39 Wis. 643, 20 Am. Rep. 63; Home Savings Bank v. Bierstadt, 168 Ill. 618, 48 N.E. 161, 61 Am. St. Rep. 146.
As Lee Daniel was under no obligation whatever to pay the note that was secured by the first mortgage on the property given by Waters to Brooks, and had no interest in or...
To continue reading
Request your trial
-
Transamerica Ins. Co. v. Barnett Bank of Marion County, N.A.
... ... 4 Commercial Bank in Panama City v. Board of Pub. Instruction of Okaloosa County, 55 So.2d 552 (Fla.1951) ... 5 Boley v. Daniel, 72 Fla. 121, 72 So. 644 (1916); Eastern Nat'l Bank v. Glendale Fed. Savings and Loan Assoc., 508 So.2d 1323 (Fla. 3rd DCA 1987); 73 ... ...
-
Zurich Am. Ins. Co. v. Southern-Owners Ins. Co.
... ... (citing Boley v. Daniel , 72 Fla. 121, 72 So. 644, 645 (1916) ). Distinctly, legal or equitable subrogation—the doctrine at issue in this action—arises from ... ...
-
Kala Investments, Inc. v. Sklar
... ... Haber, Smith & Supraski and Jose Smith, Miami, Richard Sherman, Fort Lauderdale, for appellees ... Before HUBBART, DANIEL S. PEARSON and FERGUSON, JJ ... DANIEL S. PEARSON, Judge ... The central question presented by this case is ... Boley v. Daniel, 72 Fla. 121, 72 So. 644 (1916) ... There is substantial support for Kala's claim that it has a cause of action against ... ...
-
Stowers v. Wheat, 7649.
... ... Ley, citing Boley v. Daniel, 72 Fla. 121, 72 So. 644, L. R. A. 1917A, 734, claims that the trustee in taking up the mortgage was a volunteer, that the use of bond ... ...
-
Legal theories & defenses
...be to deprive a party of a legal right. United States Fidelity & Guaranty Co. v. Bennett , 119 So. 394, 396 (Fla. 1928); Boley v. Daniel , 72 So. 644, 645 (Fla. 1916). 4. Statutes of Limitation: See Jones v. Williams Steel Industries, Inc. , 460 So.2d 1004, 1006 (Fla. 5th DCA 1984), petitio......
-
Equitable subrogation: the evolution of the volunteer and the continued irrelevance of constructive notice.
...litigators representing the party seeking subrogation are increasingly being called upon to defend the argument that Boley v. Daniel, 72 So. 644 (Fla. 1916), a 1916 Florida Supreme Court opinion, limits the availability of equitable subrogation to refinancing lenders with constructive notic......
-
Whose shoes to use: achieving a subrogation footing in the wave of foreclosures.
...he had actual knowledge of the intervening mortgage held by First National Bank of Quincy. Just two years earlier in Boley v. Daniel, 72 So. 644 (Fla. 1916), the Florida Supreme Court had refused to apply subrogation in a similar situation and appeared to reject application of the doctrine ......