Tom Lyle Grocery Co. v. Rhodes

• Decision Date: 03 January 1938
• Docket Number: 32940
• Citation: 180 Miss. 530,177 So. 777
• Court: Mississippi Supreme Court
• Parties: TOM LYLE GROCERY CO. v. RHODES

177 So. 777

180 Miss. 530

TOM LYLE GROCERY CO. v. RHODES

No. 32940

Supreme Court of Mississippi

January 3, 1938

Division A

Suggestion Of Error Overruled February 14, 1938.

APPEAL from the chancery court of Lauderdale county HON. A. B. AMIS SR., Chancellor.

Suit by the Tom Lyle Grocery Company against L. N. Rhodes and another. From the judgment, the plaintiff appeals. Affirmed.

Affirmed.

Lyle V. Corey, of Meridian, for appellant.

At the time the appellee Rhodes purchased the land involved, he was a volunteer, being under no duty of andy nature to purchase the land and no privity of any nature existing between him and any of the other parties to the transaction.

A mere volunteer or intermeddler, who, having no interest to protect, without any legal or moral obligation to pay, and without an agreement for subrogation, or an assignment of the debt, pays the debt of another, is not entitled to subrogation, the payment in his case absolutely extinguishing the debt.

60 C. J., page 716, sec. 27; Berry v. Bullock, 33 So. 410, 81 Miss. 463; Demourelle v. Piazza, 27 So. 623, 77 Miss. 433; Good v. Golden, 19 So. 100, 73 Miss. 91; Union Mtge. Bk. Co. v. Peters, 18 So. 497, 72 Miss. 1058; Slaton v. Alcorn, 51 Miss. 72.

Rhodes was under absolutely no duty to purchase the property or to satisfy the lien of the Federal Land Bank. In coming into this transaction, he was prompted solely by his own personal reasons. He had the right to elect whether to purchase the property or not. He had absolutely no interest in the property prior to the actual purchase from Strange.

We respectfully submit on the authority of the cases above cited, that Rhodes was a pure volunteer, and that court below erred in granting him subrogation to the rights of the Federal Land Bank.

At the time the appellee Rhodes purchased the land involved, it was the intention of all of the parties to the transaction that the lien of the deed of trust be then completely extinguished.

Since a purchaser of land on which there is a mortgage, assuming payment of the mortgage as part of the purchase price, becomes the principal debtor, and his payment thereof operates in law as an extinguishment of the lien, and, being under no duty to buy the land, he is a volunteer, on paying the mortgage he is not entitled to be subrogated to the rights of the mortgagee to the prejudice of a junior lien claimant of whose lien he had actual, or constructive, notice at the time of payment, in the absence of an agreement between the parties that he will be subrogated, or an assignment of the mortgage. Nor will the purchaser of land subject to a mortgage which he assumed and paid, and which formed part of the purchase price, or his grantee, be entitled to subrogation to the rights of the mortgagee as against a judgment creditor of the mortgagor whose judgment had been rendered and recorded at the time the land was bought.

60 C. J., page 793, sec. 104; Fidelity & Deposit Co. of Maryland v. Vance, 245 P. 578, 135 Okla. 24; Stastny v. Pease, 100 N.W. 482, 124 Iowa 287; Kiniry v. Davis, 200 P. 439, 82 Okla. 211; Owen v. Interstate Mortgage Trust Co., 211 P. 87, 88 Okla. 10, 30 A. L. R. 816.

Any loss which the appellee Rhodes might suffer by a denial of the right of subrogation would be occasioned solely by the negligence of the said Rhodes.

60 C. J. 696, sec. 2.

Mr. Rhodes admitted on the witness stand that he made no attempt to determine whether or not there were any judgment liens upon the property.

Section 610, Code of 1930; Josselyn v. Stone, 28 Miss. 753.

We respectfully ask the question, "Can a person willfully neglect to take advantage of a law which was enacted for his particular benefit; and then come into a court of equity and obtain relief from the injury caused by such negligence?" We submit that he cannot.

Union Mortgage Banking & Trust Co. v. Peters, 18 So. 497, 72 Miss. 1058; Prestridge v. Lazar, 95 So. 837, 132 Miss. 168.

We respectfully submit that the warranty in the deed gives to Rhodes a full adequate and complete remedy at law for any injury sustained and is sufficient to preclude his right to equitable relief by way of subrogation.

If the right of subrogation should be granted to the appellee Rhodes, then such subrogation should be limited to bear the same ratio to the entire amount of the indebtedness due to the Federal Land Bank, as the value of the land involved bears to the value of all of the land covered by the deed of trust.

There is considerable difference between the rights of one who lends money to discharge a lien and those of one who purchases the property and lets the purchase money discharge the lien. In the former case, that person is moved by the request of the owner of the property, while in the latter he is moved by the anticipation of personal gain, or the enjoyment of ownership.

Deposit Co. of Maryland v. Vance, 131 P. 682, 37 Okla. 219.

J. V. Gipson, of Meridian, for appellee.

The appellee, L. N. Rhodes, contends that this case is controlled by the following Mississippi cases decided by this court, and other cases, to-wit:

American Trust & Savings Bank v. Turner, 80 So. 176; Federal Land Bank v. Miles, 152 So. 472; Strickland v. Carroll, 154 So. 109; Russell v. Grisham, 170 So. 900; Shaddix v. National Surety Co., 128 So. 220; Jackson v. Overton, 96 So. 742; Shields v. Hightower, 108 So. 525; Prestridge v. Lazar, 95 So. 837.

The purchaser of an equity of redemption upon paying off prior mortgages is subrogated to the rights of the mortgagees paid off, the mortgages paid being considered part of the purchaser's title to the premises.

Fidelity & Deposit Co. v. Richeson, 105 So. 193.

In the case of American Trust & Savings Bank v. Turner, 80 So. 176, the court iii discussing the question of subrogation among other things held and stated: in the opinion as follows, to-wit: "The doctrine of conventional subrogation is not new to the jurisprudence of this state, and one who pays off the obligation of another secured by a mortgage, or advances money for its payment at the instance of the debtor and for his benefit-- such a person is in no true sense a mere stranger and volunteer, but in a proper proceeding is entitled to be subrogated to the rights of the original creditor."

Henderson Iron Works & Supply Co. v. Jeffries, 105 So. 792.

Equity looks to the justice of the situation and does what is right; therefore appellee, L. N. Rhodes, respectfully submits to this court that in equity and good conscience he should not be forced to stand the loss to the profit of the appellant herein under the facts and circumstances and the law of this case.

OPINION

McGehee, J.

The appellant, Tom Lyle Grocery Company, filed its bill of complaint in the chancery court of Lauderdale county seeking to impress the lien of a judgment which it held against E. G Strange, one of the defendants...