Evans' Adm'R v. Evans
| Decision Date | 14 February 1947 |
| Citation | 304 Ky. 28 |
| Parties | Evans' Adm'r v. Evans et al. |
| Court | United States State Supreme Court — District of Kentucky |
1. Bills and Notes. — All persons whose names appear as obligors on a note are presumed to be principals in the absence of some showing to the contrary.
2. Husband and Wife. — Wife whose name appears on note with that of her husband as obligor will be presumed to be the principal debtor, though her name appears below that of her husband, but such presumption may be rebutted by proof of surrounding circumstances indicating to the contrary.
3. Husband and Wife. — Whether wife, whose name appears on note with that of her husband as obligor, signed as principal or surety, depends upon the peculiar facts of the case.
4. Husband and Wife. — Recital in real estate mortgage that consideration therefor was paid to husband showed that wife signed note secured by mortgage merely as husband's surety, and hence, under statute, wife as husband's surety was not bound on the note. Ky. Stats. sec. 2127.
5. Subrogation. — Subrogation is an equitable doctrine and may or may not arise from contract, and the right to relief it affords depends on the facts in each particular case.
6. Subrogation. — Subrogation is not a fixed rule, but is one of benevolence to prevent unjust enrichment and it attempts to do complete justice between the parties.
7. Subrogation. — Subrogation does not ordinarily apply to volunteers, but may be invoked in favor of one who voluntarily pays a debt of another where the payor has some interest to protect.
8. Subrogation. — Wife who signed note as surety for husband and hence was not bound thereon was not a "volunteer" in paying note, where such payment was necessary to protect her one-half interest in realty mortgaged to secure the note and life estate in husband's interest devised to her, and hence wife, having paid note, was entitled to be subrogated to mortgagee's lien on husband's one-half interest in the realty. Ky. Stats. sec. 2127.
9. Subrogation. — Ordinarily, one who is subrogated to the rights of a mortgagee is entitled to recover interest on the sum involved from date of payment.
10. Subrogation. — Where life tenant by satisfying husband's debt was able to enjoy for more than 35 years the life estate which husband devised to her in the realty mortgaged to secure such debt, though life tenant thereby became entitled to be subrogated to mortgagee's lien against husband's interest in the realty, the rights of her heirs were fully protected by adjudging them a lien against remainder interest in the realty for the amount life tenant paid in satisfying debt without allowing interest thereon.
11. Subrogation. — Subrogation cannot be invoked when it will work an injustice or displace intervening rights of others.
12. Subrogation. — Remaindermen suffered no injustice by permitting life tenant who paid testator's debt secured by a mortgage on the realty to be subrogated to mortgagee's lien against the realty, since, had life tenant not paid the debt, their interest in remainder in the realty would have been subjected to its payment.
Appeal from Madison Circuit Court.
Ross, Ross & Bayer for appellant.
Chenault & Parrish for appellees.
Before W.J. Baxter, Judge.
Affirming.
Sallie W. Evans and her husband, James E. Evans, owned jointly a small farm in Madison County of approximately 33 acres, which they acquired from William Williams and others by deed dated April 17, 1895. On April 16, 1899, James borrowed $587.90 from his brother, George W. Evans, as will be shown later in this opinion, evidenced by a note signed by James and his wife, Sallie, which was secured by a mortgage of even date executed by both James and his wife and covered the entire farm.
James died in 1900 and his will devised all of his property to Sallie for life with remainder to his nieces and nephews, the children of his brother George. Soon after James' death, George instituted a suit against Sallie individually and as executrix of James to foreclose his mortgage, but he did not make his children, the remaindermen under James' will, parties to that action. At the decretal sale Sallie became the purchaser for $732.89, which she paid and obtained a deed from the master commissioner for the entire farm on January 27, 1902.
Sallie died intestate on October 8, 1939, and her administrator, State Bank & Trust Company, joined by her heirs, brought this action against the devisees of her deceased husband, James, and against her creditors to settle her estate. Sallie's heirs asserted title to the entire farm by reason of the master commissioner's deed. By answer, counterclaim and cross-petition as amended the devisees of James pleaded that they were infants at the time the foreclosure proceeding was brought and as they were not made parties thereto, the judgment was void and that Sallie obtained no title to her husband's one-half undivided interest in the farm by virtue of the master commissioner's deed. In a reply Sallie's heirs averred that if she did not take title to her husband's one-half interest in the land by reason of the master commissioner's deed, then she should be subrogated to the right of the mortgagee and should be adjudged a lien on her husband's undivided interest in the land in the sum of $732.89, the amount of the debt and costs, she paid for him, with interest from Oct. 26, 1901.
The reply was traversed, some proof was taken and the chancellor held the foreclosure judgment was void because James' devisees were not made parties to that action, but he adjudged that Sallie be subrogated to the right of the mortgagee, George W. Evans, in the amount she paid for her husband, but refused to allow interest and he adjudged her heirs a lien on James' one-half undivided interest in the land in the sum of $744. We do not understand how he arrived at the figure of $744 instead of $732.89, but this slight discrepancy is not mentioned in the briefs.
Sallie's heirs appealed and the devisees of James prosecuted a cross-appeal. In their brief appellants do not insist that Sallie obtained title to her husband's interest in this land by virtue of becoming the purchaser at the foreclosure sale. They...
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