Scott v. Langvardt, 81-847

• Decision Date: 01 April 1983
• Docket Number: No. 81-847,81-847
• Citation: 213 Neb. 854,331 N.W.2d 799
• Parties: A. Ann SCOTT, Appellant, v. Arthur R. LANGVARDT, Administrator de bonis non of the Estate of Wade H. Scott, Jr., deceased, et al., Appellees. In re ESTATE OF Wade H. SCOTT, Jr., deceased. A. Ann SCOTT, Appellant, v. Arthur R. LANGVARDT, Administrator de bonis non of the Estate of Wade H. Scott, Jr., deceased, Appellee.
• Court: Nebraska Supreme Court

Page 799

331 N.W.2d 799

213 Neb. 854

A. Ann SCOTT, Appellant, v. Arthur R. LANGVARDT, Administrator de bonis non of the Estate of Wade H. Scott, Jr., deceased, et al., Appellees.

In re ESTATE OF Wade H. SCOTT, Jr., deceased.

A. Ann SCOTT, Appellant, v. Arthur R. LANGVARDT, Administrator de bonis non of the Estate of Wade H. Scott, Jr., deceased, Appellee.

No. 81-847.

Supreme Court of Nebraska.

April 1, 1983.

Syllabus by the Court

Subrogation. The doctrine of subrogation includes every instance in which one person pays a debt for which another is primarily liable and which in equity and good conscience should have been discharged by the latter, so long as the payment was made under compulsion or for the protection of some interest of the one making the payment and in discharge of an existing liability.

Joseph Ginsburg of Ginsburg, Rosenberg, Ginsburg, Cathcart, Curry & Gordon, Lincoln, for appellant.

No appearance for appellees.

BOSLAUGH, McCOWN, WHITE, HASTINGS, and CAPORALE, JJ., and BRODKEY, J., Retired.

WHITE, Justice.

This is an appeal by appellant, A. Ann Scott, the wife of Wade H. Scott, Jr., deceased, from an order of the District Court for Lancaster County, Nebraska, in the above consolidated cases, dismissing the claim against her husband's estate. We reverse with directions.

At the time of his death in October 1974 the deceased had a $30,000 retirement policy with Lincoln Mutual Life Insurance Company, of which Mrs. Scott was the beneficiary.

On May 28, 1974, the decedent purchased a liquor store from Lois Pasco and R.R.L. Enterprises, Inc. The price of the store was approximately $58,000 and was paid with one note of $28,450 signed by the decedent and A. Ann Scott, an additional note of $5,472 which was secured by second mortgages on property owned jointly by Ann and Wade Scott, and the balance in cash. The indebtedness to Lois Pasco and R.R.L. Enterprises was further secured by a perfected security agreement and financing statement.

After her husband's death Ann Scott continued to operate the liquor store upon the mistaken belief that she was now the owner. She paid off the store purchase debt to Lois Pasco with $27,707.85 of the retirement policy insurance proceeds and the remaining balance of $8,266.41 from the proceeds of a personal loan. Ann Scott brought this action to be subrogated to the lien Lois Pasco and R.R.L. Enterprises held on the liquor store.

The doctrine of subrogation includes every instance in which one person pays a debt for which another is primarily liable and which in equity and good conscience should have been discharged by the latter, so long as the payment was made under compulsion or for the protection of some interest of the one making the payment and in discharge of an existing liability. Sheridan v. Dudden Implement, Inc., 174 Neb. 578, 119 N.W.2d 64 (1962).

" ' "The doctrine of subrogation is not administered by courts of equity as a legal right, but the principle is applied to subserve the ends of justice and to do equity in the particular case under consideration. It does not rest on contract, and no general rule can be laid down which will afford a test in all cases for its application. Whether the doctrine is applicable to any particular case depends upon the peculiar facts and circumstances of such case." '

....

"Subrogation may be had where certain facts exist, or do not exist, which justify an equity court doing...