Boyd v. McKenney
| Decision Date | 23 March 1926 |
| Docket Number | 16228. |
| Citation | 246 P. 406,118 Okla. 8,1926 OK 269 |
| Parties | BOYD v. McKENNEY et al. |
| Court | Oklahoma Supreme Court |
Rehearing Denied May 11, 1926.
Syllabus by the Court.
Where a party to an action has become the owner of a mortgage on property, which is second or inferior to a prior mortgage executed by the owner of the property, he has the right under section 7420, Comp. St. 1921, to redeem the property in the same manner as the owner might from the superior lien and to be subrogated to all the rights of the superior lienholder when necessary for the protection of his interests upon satisfying the claim secured thereby.
The principle to be derived from the doctrine of subrogation is that it is born of equity and results from the natural justice of placing the burden where it ought to rest. It does not flow from any fixed rule of law, but rather from principles of justice, equity, and benevolence. It is a purely equitable result, depending like other equitable doctrines upon the facts and circumstances of each particular case to call it forth. It is a device adopted or invented by equity to compel the ultimate discharge of a debt or obligation by him, who, in good conscience, ought to pay it.
No doctrine of equity jurisprudence is more beneficent in its operation than is subrogation, and perhaps none stands in higher favor. No general rule can be laid down which will afford a test in all cases for its application, and its exercise depends upon the particular facts and circumstances of each case, and is not enforced as a matter of legal right but in order to subserve the ends of justice in the particular controversy under consideration.
Commissioners' Opinion. Division No. 5.
Appeal from District Court, Ottawa County; J. J. Smith, Judge.
Action by Eva McKenney and another against E. I. Boyd and others to set aside a judgment and sale of certain real estate in the city of Miami, Okl., or, in the alternative, to be subrogated to the rights of certain mortgagees and for general relief. Judgment for plaintiffs. Defendant E. I. Boyd appeals. Affirmed.
D. H. Wilson, of Miami, for plaintiff in error.
G. W. Cornell, of Oklahoma City, for defendants in error.
This action was commenced in the district court of Ottawa county, Okl., by Eva McKenney and G. A. McKenney, defendants in error, plaintiffs below, against E. I. Boyd, Dennis H. Wilson, Lucy M. Thompson, John L. Spangler, H. J. Butler, trustee, Annie J. Scott, and H. J. Butler, as defendants below, the defendant, E. I. Boyd, being plaintiff in error here, for judgment perfecting the title to lots 7 and 8 in block 136 in the city of Miami, Okl., or, in the alternative, that defendants in error be subrogated to the rights of the mortgagees in certain mortgages assumed and paid by them and for the cancellation of sale of the property and vacation of judgment obtained by plaintiff in error, E. I. Boyd, in the district court of Ottawa county, and for general relief. Parties will be referred to as plaintiffs and defendants as they appeared in the lower court.
The record discloses that the record title to the lots in question was, on the 13th day of November, 1917, vested in John L. Spangler, subject to a mortgage in the sum of $375 held by Charles Acton; that on the 15th day of November, 1917, Spangler executed a mortgage to the Vinita Building & Loan Association in the sum of $1,800, and on the 17th day of November, 1917, Spangler executed a deed to H. J. Butler as trustee; that, on January 7, 1918, Butler paid off the mortgage of $375 owned and held by Charles Acton, and on the 16th day of February, 1918, H. J. Butler, trustee, conveyed said property to Lucy M. Thompson, and on the said 16th day of February, 1918, a building contract was entered into between Annie J. Scott and Lucy M. Thompson, and on February 19, 1918, H. J. Butler and wife, by quitclaim deed, deeded the property to Lucy M. Thompson, and on the 8th day of April, 1918, Lucy M. Thompson mortgaged said property to Beulah Thompson for the sum of $500, and on the 7th day of August, 1918, E. I. Boyd instituted a suit in the district court of Ottawa county against Lucy M. Thompson, John L. Spangler, H. J. Butler, and Annie J. Scott, in which she claimed that, under an oral agreement with John L. Spangler, she paid one-half of the purchase price of the lots paid by Spangler, or the sum of $350, and that she was entitled to a one- half interest in the title to said property, or a lien on same, for money expended by her, and prayed that the deed from John L. Spangler to H. J. Butler be declared a mortgage. On the 14th day of October, 1918, Lucy M. Thompson conveyed the property by deed to George O. Gibson, subject to the mortgage of the Vinita Building & Loan Association in the sum of $1,800, and the mortgage to Beulah Thompson in the sum of $500, and on the 13th day of January, 1919, George O. Gibson paid off the $500 mortgage to Beulah Thompson, and on the 17th day of January, 1919, Gibson conveyed the property by deed to Elmer Jackson, subject to the Vinita Building & Loan Association mortgage in the sum of $1,800, and on the 19th day of October, 1919, Elmer Jackson and wife conveyed the property by deed to the plaintiff Eva McKenney, who assumed the balance of the mortgage held by the Vinita Building & Loan Association in the sum of $1,518.95, paying the said Elmer Jackson the sum of $692 as the purchase price in addition to the above mortgage assumed by her. On the 10th or 15th day of November, 1920, judgment in rem against the property was rendered by the district court in the case of E. I. Boyd instituted on the 7th day of August, 1918, heretofore referred to, in the sum of $724.60, with six per cent. interest from the 8th day of August, 1918, and declaring the deed from John L. Spangler to Butler to be a mortgage, and declaring a lien against said property for the satisfaction of said judgment. The property was sold under an execution by the sheriff of Ottawa county, and on the 3d day of December, 1923, said sale was by the court confirmed, and on the 8th day of December, 1923, the plaintiffs herein filed a petition to set aside said sale and to vacate the judgment, and on the 4th day of February, 1924, the court rendered judgment, vacating the former order confirming said sale, retaining for further consideration of the cause on motion of E. I. Boyd to confirm the sale until the present case should be heard and determined upon its merits, and by stipulation of counsel the further consideration of the motion to confirm the sale was suspended pending final determination of this action.
Disclaimers were entered by some of the defendants, and the cause proceeded to trial before the court without the intervention of a jury upon the petition of plaintiffs and the separate answer of the defendant, E. I. Boyd, in which she denied generally the allegations of plaintiffs' petition and claimed the title to the property by virtue of her purchase at sheriff's sale under execution...
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