Smith v. Sprague
| Decision Date | 04 December 1928 |
| Docket Number | No. 137.,137. |
| Citation | 222 N.W. 207,244 Mich. 577 |
| Parties | SMITH v. SPRAGUE. |
| Court | Michigan Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Oakland County, in Chancery; Glenn C. Gillespie, Judge.
Suit by Elizabeth Smith against Etta S. Sprague. Decree for plaintiff, and defendant appeals. Affirmed.
Argued before the Entire Bench.Trowbridge, Lewis & Watkins, of Detroit, for appellant.
Pelton & McGee, of Pontiac, for appellee.
Defendant and her husband, Thomas S. Sprague, owned a parcel of land in Oakland county, taking title in 1908, which has, as stated by the trial judge, ‘been the subject of many mortgages executed by them, in fact there had, so to speak, been a continual round of mortgages, contemporaneous discharges of old mortgages and recording of new ones with occasional foreclosures and redemptions down to the transaction in dispute.’
In October, 1919, a certain mortgage known as the Wetherbee mortgage in the principal sum of $5,000 was due and foreclosure threatened. There was another mortgage, not important here, in the principal sum of $2,000, also due Wetherbee. The owners were in financial straits, and discussed plans whereby the home might be saved from the threatened sale.
On October 16, 1919, plaintiff, then Elizabeth Sprague, was decreed divorce from Emmet Sprague, son of Mr. and Mrs. Sprague, and she received alimony in gross, nearly $15,000. The father was a witness for plaintiff in that case. The relations of the parents with plaintiff, their former daughter-in-law, were friendly and divorce. She addressed of years after the divorce. She addressed them as father and mother, and often visited them at their home and dined with them.
On October 20, 1919, Thomas S. Sprague, as a last resort it seems, appealed to plaintiff, and pleaded that she provide needed money to pay the mortgage saying, ‘We will in turn give you a mortgage.’ Plaintiff gave him $5,000. On October 28, 1919, he returned again seeking $4,500 on like appeal and statement, and plaintiff gave him the amount, and on that day the $5,000 mortgage, at least, was discharged. Up to this point the evidence does not show defendant Mrs. Sprague actively in the matter, but on that very day, in the presence of her husband and the plaintiff, she admitted knowledge of and assent to the understanding.
A few months later Mr. Sprague gave to plaintiff his demand notes for the amount due, and he promised repeatedly and from time to time to provide the promised security. He died without having kept the promise. This bill is filed for subrogation. Plaintiff had decree with respect to the mortgage of $5,000 and subject to incumbrances created in the meantime, and defendant has appealed.
Mr. and Mrs. Thomas S. Sprague held as tenants by the entireties. The chief contentions of appellant are that Mr. Sprague is not shown to have had authority to bind his wife in promising security and subrogation, that the wife herself made no such promise, and that she did not ratify what her husband had done. While the evidence is capable of the fair inference that Mr. Sprague was authorized to act, and did act, for both himself and his wife, the matter is not necessary to decision. We are not here enforcing a contract. Subrogation does not depend upon contract. It is an equitable principle. United States Fidelity & Guaranty Co. v. Bramwell, 108 Or. 261, 217 P. 332, 32 A. L. R. 829.
‘It is no longer narrow and technical in its scope, but has been broadened and extended to cover particular facts and circumstances, where it is equitable that a person furnishing money to pay a debt should be substituted for the creditor or in place of the creditor. It has been called the ‘mode which equity adopts to compel the ultimate payment of a debt by one who in justice, equity, and good conscience ought to pay it.’' Sherman v. Yankee Prod. Corp., 201 App. Div. 647, 194 N. Y. S. 705.
[2] ‘It is proper in all cases to allow it where injustice would follow its denial.’ French v. Grand Beach Co., 239 Mich. 575, 215 N. W. 13. It will not be allowed to a mere stranger or volunteer.
The purpose served by the evidence that plaintiff paid the money to satisfy the mortgage at the instance, promise, and request of Mr. Sprague, one of the tenants by the entireties, is that it shows that plaintiff was not a mere volunteer. 25 R. C. L. 1338. And it is a sufficient showing.
It was not necessary to go further and show that Mrs....
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