Skinner v. Tirrell

• Decision Date: 07 September 1893
• Citation: 34 N.E. 692,159 Mass. 474
• Parties: SKINNER v. TIRRELL.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

159 Mass. 474

34 N.E. 692

SKINNER v. TIRRELL.

Supreme Judicial Court of Massachusetts, Suffolk.

September 7, 1893

COUNSEL

J.D. Long and E.C. Bumpus, for appellant.

H Kingman, for appellee.

OPINION

MORTON, J.

This is a bill in equity in which the plaintiff, who has advanced money to the defendant's wife while living apart from her husband, which she expended, it is alleged, in the purchase of necessaries, seeks to be subrogated to the rights of the persons furnishing the necessaries, and prays that the defendant may be ordered to pay to her the amount so advanced. The defendant demurred to the bill. The demurrer was sustained, and the bill was dismissed, and the plaintiff appealed. The demurrer was a general one, and it was claimed at the argument, as one ground of it, that the bill did not set out sufficient facts to show that the wife was living apart from her husband for justifiable cause. Without considering whether this objection was well taken, we assume that, if valid, it could be removed by amendment. The question then is whether the bill, if amended so as to remove this objection, can be maintained either on the ground of subrogation or of a general equity. We think it cannot stand on either ground. There can be no subrogation unless there is something to be subrogated to. A debt or liability cannot be created where none existed for the purpose of effecting a substitution. There never was any liability on the part of the defendant to the parties who furnished the wife with the necessaries. The goods were sold to her, and were paid for by her. They were not furnished on the defendant's credit but on the wife's. The money that was advanced by the plaintiff was not advanced to the parties who furnished the necessaries, but to the wife, to be expended by her as she saw fit. There is no ground, therefore, for the application of the doctrine of subrogation. Although the right of subrogation does not depend on contract, but rests on natural justice and equity, there must be an agreement either express or implied, to subrogate, or some obligation, interest, or right, legal or equitable, on the part of the party making the payment or advance, in respect of the matter concerning which payment is made or money advanced, in order to entitle him to subrogation. Hart v. Railroad Co., 13 Metc. (Mass.) 99; Amory v. Lowell, 1 Allen, 504; Wall v. Mason, 102 Mass. 313; Insurance Co. v. Middleport, 124 U.S. 534, 8 S.Ct. 625; Arnold v. Green, 116 N.Y. 566, 23 N.E. 1; Gans v. Thieme, 93 N.Y. 225, 232; Johnson v. Barrett, 117 Ind. 551, 19 N.E. 199; McNeil v. Miller, 29 W.Va. 480, 2 S.E. 335; Miller's Appeal, 119 Pa.St. 620, 13 Atl.Rep. 504; Suppiger v. Garrels, 20 Ill.App. 625; Gadsden v. Brown, Speer, Eq. 37, 41; De Concilio v. Brownrigg, (N.J.Ch.) 25 Atl.Rep. 383; Brewer v. Nash, 16 R.I. 458, 462, 17 Atl.Rep. 857; Building Soc. v. Cuncliffe, 22 Ch.Div. 61; Stevens v. King, 84 Me. 291, 24 Atl.Rep. 850; Sheld.Subr. §§ 2, 3, 240. A mere volunteer is not entitled to subrogation. Insurance Co. v. Middleport, supra; Arnold v. Green, supra; Gadsden v. Brown, supra; Sheld. Subr. §§ 241, 242, and cases cited. Nor is one who lends money to another to pay a debt entitled, as matter of right, to stand in the creditor's shoes. Sheld.Subr. §§ 241, 242, and cases cited. So far as subrogation is concerned, the plaintiff's contention resolves itself into the proposition that the defendant's wife could have bought on her husband's credit the necessaries which she purchased and paid for with the money advanced to her by the plaintiff; that, if the plaintiff had paid the parties supplying the necessaries their several demands, she would have been entitled to be subrogated to their claims against the defendant; and that, therefore, a decree should be entered in her favor against the defendant in this suit. If the premises are correct, manifestly the conclusion does not follow from them. There are ancient and modern cases in England which hold that a person advancing money to a married woman under circumstances like those in this case can recover the same of the husband in equity. Harris v. Lee, 1 P.Wms. 482; Marlow v. Pitfeild, Id. 559; Deare v. Soutten, L.R. 9 Eq. 151; Jenner v. Morris, 3 De Gex, F. & J. 45. See, also, In re Wood, 1 De Gex, J. & S. 465. These cases have been followed in this country in Connecticut, (Kenyon v. Farris, 47 Conn. 510,) and there is a dictum in a case in Pennsylvania (Walker v. Simpson, 7 Watts & S. 83) to the same effect. Certain text writers, following the English cases, have stated the law to be as there held. Bish. Mar. & Div. §§ 621, 622; 1 Bisp.Eq. § 193; 3 Pom.Eq.Jur. §§ 1299, 1300; 2 Kent, Comm. 146, note by Holmes, J.; Schouler, Husb. & Wife, § 61, note. But those cases do not appear to us to rest on any satisfactory principle. It was apparently conceded by the Lord Chancellor in Jenner v. Morris, supra, that they did not. He seems to have yielded to them simply as precedents which he was bound to follow. The earliest one, (Harris v. Lee, supra,) on which the subsequent ones rely, referred the jurisdiction, without much discussion or consideration of it, to the principle of subrogation. For reasons already given, we think that principle inapplicable. It is said that equity has...