Ft. Jefferson Imp. Co. v. Dupoyster

• Decision Date: 25 February 1902
• Citation: 112 Ky. 792,66 S.W. 1048
• Parties: FT. JEFFERSON IMP. CO. et al. v. DUPOYSTER. [1]
• Court: Kentucky Court of Appeals

66 S.W. 1048

112 Ky. 792

FT. JEFFERSON IMP. CO. et al. v. DUPOYSTER. ^[1]

Court of Appeals of Kentucky.

February 25, 1902

Appeal from circuit court, Ballard county.

"To be officially reported."

Action by Joe C. Dupoyster, in his own right and as administrator of Ben S. Dupoyster, against the Ft. Jefferson Improvement Company and others, to enforce a purchase-money lien on land. Judgment rescinding contract of sale and adjusting equities and the Ft. Jefferson Improvement Company and others appeal. Reversed on appeal of Mrs. Rebecca S. Dupoyster, and affirmed on appeal of other appellants.

J. M Nichols & Son and F. H. Sullivan, for appellants.

John W Ray, Geo. W. Reeves, and Bugg & Wickliffe, for appellee.

PAYNTER J.

This is the second appeal of the case to this court. The opinion delivered on the former appeal is found in 51 S.W. 810, 48 L R. A. 537. The court decided: (1) That by the deed of Thomas Dupoyster, made in 1859, his son Ben S. Dupoyster took a life estate in the land conveyed, and that the children of J. C. Dupoyster, as they were born, took vested remainders. (2) That Ben Dupoyster, claiming under the deed of 1859, purchased adverse claims and was holding under this deed at the time it was sold to the appellants. (3) That in the Thomas Dupoyster deed his son Ben S. had the "discretion of allotting, of dividing, or of partitioning," as he saw proper, the lands among the children of Joe C., but not so as to create inequality or lessen the interest of any one of the children. (4) That Joe C. had born to him four children, two of whom are dead; that the interest of the dead children passed by the law of descent to their lawful heir or heirs. (5) That there should be a rescission of the sale by Joe C. and Ben S. to the appellant, and on whatever of the land Joe C. is the owner by inheritance from his dead children a lien should exist in favor of the appellant for the purchase money wrongfully received by him. Numerous questions are raised, but we will not here summarize them. From our consideration of the case the questions raised will be seen.

Before Joe C. and Ben S. made the deed to the appellant, they had executed what is known as the "Harkless Mortgage" on the land in controversy, but which mortgage did not recognize any one as being the owners of the land except the grantors. J. B. and his sister, Mrs. Edwards, are the surviving children of Joe C., and own one-half the land embraced in the Thomas Dupoyster deed, because of the vested remainders which they took. In this suit they asserted their right under the Thomas Dupoyster deed to the entire boundary, but it was decided that they took it together with the other children of Joe C., and, two having died, their father inherited part of their (deceased children's) interest in the land. It may be added here that Joe C. inherited three-eighths of the tract of land, and his wife, Rebecca, one-eighth. The grantors in the Harkless mortgage could not create any lien on any interest in the land, except their own. The rights of J. B. Dupoyster and Mrs. Edwards were not affected by that mortgage. Pending this suit, and before the judgment was rendered from which the former appeal was prosecuted, J. C. Dupoyster and those representing the Harkless mortgage and J. B. Dupoyster and his sister entered into an agreement by which, if persons last named were adjudged the land, then the judgment for the Harkless debt should go against the entire tract. It is averred in the pleadings, and not denied, that the appellant Ft. Jefferson Improvement Company took its judgment subject to that agreement, and approved it. Pursuant to that agreement a judgment was entered giving a lien on the entire tract of land for the Harkless debt. This was in the former judgment, from which no appeal was prosecuted, and that part of it has never been reversed, nor does any complaint seem to have been made on the former appeal as to that part of it. Subsequently J. B. Dupoyster and his sister, pursuant to the agreement which had been made, and the judgment of the court, executed their obligations for the Harkless debt, and also gave a mortgage to secure its payment, and have paid $5,000 on it. It is insisted that J. B. Dupoyster and Mrs. Edwards are not entitled to be subrogated, because (1) they had not paid all the debt; (2) they were volunteers; (3) a surety is not entitled to subrogation as against a prior surety; (4) the lien of the original Harkless mortgage was released by extension granted on the mortgage debt by appellees.

First it may be said that the Harkless mortgage created a superior lien upon Joe C. Dupoyster's interest in the land to that of the appellant for the purchase money which it had paid, and which it was entitled to have refunded to it. J. B. Dupoyster and sister have paid all the debt, inasmuch as they executed their note in lieu of the one which existed. So far as the right to subrogation goes, it is equivalent to the payment of the money, because they made it their own debt. There was a novation. The rule which the appellant claims should exist in equity cannot have any application to the facts of this case. It is a universal rule of interpretation that one who voluntarily pays the debt of another, when he is under no obligation to pay, does not create a liability in his favor; nor can he be subrogated to the lien held by the creditor to secure its payment. It is equally as well settled, if one is bound for the debt of another, he has the right to discharge it, and when he does so an implied liability arises in his favor against the debtor, and he will be subrogated to the rights of the creditor. By the consent and agreement of the parties, J. B. Dupoyster and his sister's interest in the land became bound for the Harkless debt, the same as the property of their father and mother, if the latter joined in the mortgage. It did not then become their debt, but it continued to be the debt of their father, and in order to relieve their interest in the land they were compelled to pay it. They were not volunteers in the matter. They consented that their land might become impressed with the liability, at the request of their father, and with the approval of the appellant. However, it was not necessary to have the latter's approval. It did not increase the burden on the interest of J. C. Dupoyster, nor did it lessen the chances of the appellant to make its debt out of his interest in the land. The effect of the transaction is that J. B. Dupoyster and his sister have paid off a lien debt for which the interest of J. C. Dupoyster was primarily liable, to protect their interest in the land, and did so at his request. This court, in Ostermeyer v. Ostermeyer, 39 S.W. 22, recognized the right of one thus paying the debt to release his own interest in property to be subrogated to the rights of the creditors, and also held that an implied liability would arise. The mere fact that those holding the Harkless debt were willing to accept the obligation of J. B. Dupoyster, etc., for the mortgage debt, and give him time for the payment of it, did not have the effect of preventing subrogation. The right of subrogation arises out and from the transaction. It accrued the instant those representing the Harkless mortgage accepted the new obligation.

The doctrine of subrogation is one of equity, to promote justice and it may or may not arise from a contract. The right to it depends upon the facts and circumstances of each particular case, and to which must be applied the principles of justice. Where a person furnishes money to pay the debt of another, if it is equitable that he should be substituted for the creditor it will be done. One is not a volunteer in a transaction where he has paid the...