Robertson v. Sullivan

• Decision Date: 04 November 1912
• Docket Number: 15,505
• Court: Mississippi Supreme Court
• Parties: v. OTIS ROBINSON v. ROBERT SULLIVAN ET AL

59 So. 846

102 Miss. 581

OTIS ROBINSON v. ROBERT SULLIVAN ET AL

No. 15,505

Supreme Court of Mississippi

November 4, 1912

APPEAL from the chancery court of Hinds county, HON. G. G. LYELL Chancellor.

Suit by Robert Sullivan and another against V. Otis Robinson. From a decree for plaintiff defendant appeals.

The facts are fully stated in the opinion of the court.

Reversed and remanded.

V. Otis Robertson, for appellant.

24 Am. & Eng. Ency. Law, 248: "The general rule is that any person having an interest in property upon which there is a lien or incumbrance may, if necessary for his own protection pay off the same and be substitued to the rights and remedies of the holder thereof."

Mrs Brown had one third interest in the property at the time of the death of her husband.

Stinson v. Anderson, 96 Ill. 373: Where a widow after the death of her husband pays off a debt secured by a trust deed given by the husband and takes a release thereof the deed being a valid lien and thereby preserves the property, she will be entitled to foreclose the same for her own benefit.

In Simmons v. Lyle, 32 Gratt. (Va.) 752, the widow remained in the mansion house having with her two infant children whom she supported. No assignment of dower was made to her; she paid the balance of purchase price due for the property which was secured by a vendor's lien; she also paid taxes due upon the property. It was held that she was entitled to be reimbursed, the amount of the taxes and purchase money paid by her, and that the claims so paid off constituted prior liens on the property.

Robinson v. Leavitt, 7 N.H. 73.

Counsel for appellee rely on Howell v. Bush, 54 Miss. p 437, as the leading case in Mississippi on the subject of subrogation in this case, the facts of which are stated in the brief of the appellee it is held, "A mere change in the form of indebtedness will not discharge the lien unless the parties clearly intended to extinguish it; but equity will consider it alive or not as accords best with justice and the parties' actual intention." It is to be noted in this case (a) that there was no intention at all on the part of Howell or any of the parties to consider the vendor's lien alive; (b) there was no accident or failure of minds to meet; (c) a large amount of the consideration had been paid, to wit, five thousand dollars, sufficient to create more than a homestead exemption for Mrs. Howell, in other words, she had an actual bona fide interest in the property.

Howell v. Bush is an entirely different case from the one before the court. In the case at bar the following points are to be noted: (a) the father of the children had paid nothing on the property and the children paid nothing; (b) the mother paid the purchase price with her own funds, with no intention whatsoever to have the children, share in it--in fact, she went deliberately to work to have the title in her own name, and thought that she had succeeded in securing the title in her own name until advised to the contrary by an attorney after she had sold same; (c) under the circumstances it most assuredly would be equitable to consider her claim on the property alive under the lien which she had mistakenly and without intent discharged.

It accords best with justice and the parties' actual intention to keep the lien alive.

But we contend that Howell against Bush, above referred to, is not the leading case and that it has been in effect overruled.

The leaning of the court against the apparently strict holding in Howell v. Bush, is clearly shown in the decision made a few months later in the case of Cansler v. Sallis, 54 Miss. 446.

By the terms of the will of Wallace, all of his debts as guardian were made a charge against his estate, and the money derived from McGee, as purchaser of the land, went to pay off these debts. McGee's money exonerated the property of the estate from a legal charge, and he was disappointed in his belief that he had acquired a valid title to the property which he bought. The heirs of Wallace sought to recover the land and at the same time claimed to retain the benefit which accrued to them by the satisfaction of the debt. Chief Justice GEORGE quotes the following from Judge STORY:

"That where a bona fide possessor or purchaser of real estate pays money to discharge any existing encumbrance or charge upon the estate, having no notice of any infirmity in his title, he is entitled to be repaid the amount of such payment by the true owner seeking to recover the estate from him."

This principle seems now to be fully established. It has been recognized in the following cases in this court: Jayne v. Boisgerard, 39 Miss. 796; Short v. Porter, 44 Miss. 533; Cole v. Johnston, 53 Miss. 94; Gaines v. Kennedy, 53 Miss. 103.

In Weaver v. Norwood, 59 Miss. 678, we find:

"It is well settled in this state, aside from the provisions of the statute, that a court of equity will, in favor of a bona fide purchaser, who failed to acquire the title which he believed he was getting, charge the land in the hands of the owner with the amount of the purchase money appropriated to the discharge of an incumbrance on it. This has been adjudicated in an unbroken line of cases."

Special attention is called to the case of Bonner v. Lessley, 61 Miss. 392.

The facts in that case are: William L. Frazier gave deed of trust on a piece of property; later he died and the deed of trust was foreclosed by a substituted trustee, whose appointment was void, therefore making the sale void; at the trustee's sale the property was bought by Caroline A. Frazier and the money she paid at the sale used in paying off the debt. Caroline A. Frazier then sold the property by giving a deed of trust to H. S. Van Eaton; subsequently the property was sold to a man named Lessley; William L. Frazier had three children at the time of his death, and these children set up a claim to the property because of the void sale. It will be noted that the facts are strikingly similar to those in the case at bar. The court held that the sale was void but that the property should be charged with the debt existing on it at the time they inherited it, and Judge COOPER, delivering the opinion of the court said:

"Mrs. Frazier, however, by her purchase under the void sale if the money paid by her was applied to the extinguishment of the trust debt became the equitable assignee of the debt and subrogated to the right of the original cesuti que trust, and as such, entitled to charge the land in equity with the debt paid, Clarke v. Wilson, 56 Miss. 753, and this right passed to those claiming the estate under her."

The important point in the above case is the definite and distinct ruling that the right to subrogate passes to those grantees whose immediate or remote grantors have paid off a valid debt existing on an estate, when the heirs become entitled to the possession.

In Trust Co. v. Peters, 72 Miss. 1058, we have an elaborate case wherein Howell v. Bush, supra, is overruled. The facts stated by Justice WHITFIELD are as follows: Peace, the common debtor of the Freehold Co. and Allen & Co. owed the former, say, $ 26,000 and the latter twenty-five thousand dollars; the Freehold Co. having the senior, and Allen & Co. the junior, mortgage; Peace wanted more money to pay off the Freehold Co. and to farm on; he applied to the Union Company through its agents, the Corbin Banking Company for a loan of thirty-eight thousand dollars; the Corbin Banking Company, intentionally and fraudulently keeping off the application the freehold mortgage and all the Allen & Co. mortgages, the Corbin Banking Co. being the agent of the Union Co. The Union Co. through its agent and Dr. Peace agree expressly that the Freehold Company's mortgage should be paid off, satisfied and forever extinguished--not kept alive. It was so paid off; the said mortgage was actually sent by the Corbin Banking Co. from New York to Martin at Memphis to be delivered to Peace, and in the eye of the law, was as effectually in his hands as if actually delivered. Allen and Co. were entirely ignorant of all this--never knew or supposed there was any new creditor, but understood that the Freehold Company's debt was being renewed and continued. The Freehold Company's debt being thus paid off and satisfied by express agreement of the Union Company through its agent, the Corbin Banking Co., and Peace, and in exact accordance with their actual intention, the Allen & Co. trust deed stood first in legal priority, Allen & Co. having had nothing whatever to do with the dealings between Peace and the Union Co.

The court applied the doctrine of subrogation, and said:

"Cases may undoubtedly be found which would deny subrogation under the circumstances, even as between the appellant and Peace . . . but there are other cases holding a different view, and we think with better reason. The principle of equitable subrogation does not arise from contract (for that is conventional subrogation) but it is a creation of the court of equity, and is applied in the absence of an agreement between the parties where otherwise there would be a manifest failure of justice. . . . The present case is as to matters hereinbefore referred to fully covered by the decision of this court at the April term, 1894, in the case of McMullen v. Home Investment Co., in which no opinion was written. That case and Cansler v. Sallis, 54 Miss. 446, are decisive also, that since Allen & Co. are by applying the rinciples of subrogation placed in no worse attitude than they originally were, the fact that they have a mortgage on the same property cannot defeat the right of subrogation invoked by appellant here."

Justice WHITFIELD, in a dissenting opinion says:

"I refer especially also to Howell v. Bush,...