Buskirk. v. State-Planters Bank, (No. 7578)

• Citation: 113 W.Va. 764
• Decision Date: 06 June 1933
• Docket Number: (No. 7578)
• Court: West Virginia Supreme Court
• Parties: George R. Buskirk et al. v. State-Planters Bank & TrustCompany et al.

113 W.Va. 764

George R. Buskirk et al.
v.
State-Planters Bank & Trust
Company et al.

(No. 7578)

Supreme Court of Appeals of West Virginia.

Submitted May 11, 1933.
Decided June 6, 1933.

[113 W.Va. 764]

Subrogation

Subrogation, being a creation of equity, will not be allowed except where the subrogee has a clear case of right and no injustice will be done to another.

Litz, Judge, absent.

Appeal from Circuit Court, Cabell County.

Suit by George R. Buskirk and another against the StatePlanters' Bank & Trust Company, the Life Insurance Company of Virginia, and others. Prom the judgment, the lastnamed defendant appeals.

Reversed in part and remanded.

John E. Jenkins, Brown, Jackson & Knight and Herman Bennett, for appellant.

[113 W.Va. 765]

Livezey, Hogsett, McNeer & Delaney, for appellees Buskirk and Switzer.

Woods, Judge:

This is an injunction suit brought on January 14, 1932, by plaintiffs Switzer and Buskirk, as beneficiaries under a junior deed of trust upon certain hotel property, to prevent a sale thereof on January 15, 1932, under the senior deed of trust; to ascertain the liens against the property, their priority, etc; and to have the property sold by the court. All of which was done, priority being given to the unpaid taxes for 1931 and to the taxes for 1929 and 1930 which had been paid by the junior lienor, as first and second liens, respectively. The senior lienor (by assignment), Life Insurance Company of Virginia, appeals from the adjudication of the taxes paid by the junior lienor as a lien prior to its lien.

The senior deed of trust was given to secure money borrowed by the hotel company to pay on its obligations. Prom recitals in the junior trust deed it appears that Switzer was at one time either the owner of the hotel property or of an interest therein; that "a portion" of the money borrowed under the senior deed of trust went to him on the purchase price of the hotel; and that the remainder due him was secured by the junior trust deed. Both trust deeds were dated the same day, November 5, 1927; but the one in favor of Switzer expressly recognized the other trust deed as senior. Each trust deed contained a covenant that the grantor (the hotel company) should pay all taxes, and in its default the trustee or the lienor could pay them and the amount (of taxes) paid would be added to and become part of the sum secured by the trust deed. Each deed also provided that upon the breach of any of the covenants, the entire debt secured should at once become due and payable, if the lienor should so elect. Taxes upon the encumbered property for 1929 were in default, and on October 18, 1930, the senior lienor notified the hotel company and the junior lienor that unless the taxes were paid by October 25, 1930, the entire debt under the senior deed of trust would be declared due and payable. Switzer paid the taxes on October 22nd and thus disposed of the threat of foreclosure. A similar series of events occurred in 1931, in re-

[113 W.Va. 766]

gard to the 1930 taxes. Switzer testified unequivocally that he paid the taxes each time to prevent foreclosure by the senior lienor, saying: "I took it that that (the payment of the taxes) was the only way for me to postpone it (the foreclosure)." He made no reference whatever to a tax sale. Switzer assigned a one-half interest in all his claims against the hotel company to Buskirk. As the sole point at issue is a legal one, further detail seems unnecessary.

The junior lienors contend that they should be subrogated to the lien of the state for the taxes paid by Switzer. The senior lienor admits subrogation is ordinarily accorded to one (not a stranger) paying another's taxes, but contends that under the circumstances here the junior lienors are not entitled to subrogation.

The principle seems to be well established that one possessed of a substantial interest in property who pays taxes thereon for which another is bound, is entitled ordinarily to be subrogated to the right of the taxing power. See Camden v. Goal Co., 106 TV. Va. 312, 145 S. E. 575, and the extensive note to that case in 61 A. L. R. 587. But the right of subrogation is not an absolute right, which a paying creditor may enforce at will. Pierson v. Haddonfleld, 66 N. J. Eq. 180, 192, 57 A. 471. The right is "a pure equity" and will be recognized only when consonant with right and justice. "Subrogation is founded on equity and benevolence, and is not to be allowed except in a clear case, and where it works no injustice to others." Wallace Est., 59 Pa. 401. Sheldon on Subrogation, section 4; 5 Pomeroy Eq. Juris. (2d) sec. 2349; 60 C. J., on Subrogation, section 18. The right "depends upon the facts and circumstances of each particular case, to which must be applied the principles of justice." 25 R. C. L., on Subrogation, section 2. N. Y. Co. v. F. N. Bank, 51 Fed. (2d) 485. The right is not thrust on every creditor who pays a debt of his principal, as the right may be relinquished. "The effects of this principle may be controlled by acts of the parties." Bank v. Peter, 13 Peters, (U. S.) 123. Henderson etc. v. Shillito Co., (Ohio) 60 N. E. 295, 298. A second lienor who satisfies a paramount lien against his principal has the option of succeeding to the rights of the superior lien or resorting to his principal directly. And if it appears that at

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