Brown v. Brown

• Decision Date: 11 March 1907
• Docket Number: 12,680
• Citation: 43 So. 178,90 Miss. 410
• Court: Mississippi Supreme Court
• Parties: MARGARET FORD BROWN v. TURNER BROWN

43 So. 178

90 Miss. 410

MARGARET FORD BROWN v. TURNER BROWN

No. 12,680

Supreme Court of Mississippi

March 11, 1907

FROM the chancery court of Washington county, HON. PERCY BELL Chancellor.

Turner Brown, the appellee, was complainant in the court below, and Margaret Ford Brown, the appellant, was defendant there. From a decree overruling the demurrer of defendant to the bill of complaint, defendant appealed to the supreme court.

The complainant, Turner Brown, filed a bill in chancery against Margaret Ford Brown, wherein he alleged that he had married her in Washington county in 1899 and had lived with her on her premises for six years continuously, when she left him and moved to Memphis, Tennessee, to live; that at the time of his marriage with her, she fraudulently represented to him that she was unmarried and legally capable of entering into a marriage contract under the laws of this state; that at the time of his marriage with her, she owned certain real estate in Greenville, which was mortgaged to the extent of $ 600 practically its entire worth; that, after the marriage believing himself to be her husband, and desiring to provide a homestead for himself and his supposed wife, the defendant he proceeded with diligence and at her special instance and request to work out and pay off the mortgage indebtedness with his own funds and proceeds of his labor, she promising to convey him a half interest in the property. The bill further alleged that at the time of his formal marriage with her she had a husband named Thomas Ford, having never been divorced from him, and her marriage with complainant was not in ignorance of law on her part, but for the fraudulent purpose of having her property redeemed from the mortgage through his labor and money; that, although the mortgage has been thus fully paid, she has declined to convey to him any interest whatever in the realty; has left him to go to her husband, Thomas Ford, in Memphis; and, on the ground that her marriage with complainant was illegal, has instituted proceedings for its annulment in Washington county against complainant. The bill further recited that as a result of all the foregoing, complainant finds that he is to be without a wife, and all of the money he has paid on the land, and his equitable interest therein, unless equity comes to his relief. The bill prayed for an equitable lien on the land by way of subrogation for the full amount paid out in settlement of the mortgage by complainant, and that the land be sold to satisfy the same.

The defendant, Margaret Ford Brown, demurred to the bill, on the ground that the allegations therein did not authorize subrogation, and that there was no equity on the face of the bill.

Decree reversed, and demurrer sustained, and bill dismissed.

Campbell & Cashin, for appellant.

The bill shows that the appellee, Turner Brown, supposing himself to be the legal husband of the appellant, proceeded to work out and pay off a mortgage indebtedness upon appellant's land, because of his desire to provide a home for himself and her, and because of her promise to convey him a half interest in said property. The bill does not state whether the appellant's alleged promise of a half interest was verbal or written, but this is immaterial, inasmuch as the bill does not seek to enforce the specific performance of any promise on the part of appellant to convey a half interest in the property to appellee. If the promise was made in writing, the bill does not seek to enforce it; and if it was a verbal promise, of course it could not be enforced. Appellee only seeks to be subrogated to the mortgage which he alleges was paid off by him.

Nor does the bill allege that any agreement existed between appellant and appellee that the mortgage should be kept alive for appellee's benefit, nor that there was any promise or agreement on appellant's part to repay to appellee the money he paid on the mortgage indebtedness. The bill merely alleges that the inducement leading appellee to pay off the mortgage debt was to provide a home for himself and appellant, and to receive a half interest in the property.

We think the facts in this case bring it fairly within the rule announced by this court in Berry v. Bullock, 81 Miss. 463, S.C., 33 So. 410. The bill does not make out a case for legal or conventional subrogation. It is framed expressly on the theory that the appellee paid off the mortgage because of his desire to provide a home for himself and appellant, and because of appellant's promise above mentioned. No assignment of the mortgage to appellee is alleged in the bill; but, on the contrary, the bill distinctly alleges that the mortgage was satisfied and discharged.

Appellee must be held to have carved out his own security, and paid off the mortgage debt, not on the hope of any subrogation, but on the hope of securing a half interest in the property.

In the case of AEtna Insurance Co. v. Middleport, 124 U.S 534, cited in the opinion of this court in Berry v. Bullock, supra, the United States supreme court said, "The doctrine of subrogation in equity requires, (1) that the person seeking its benefit must have...