135 Ala. 236 | Ala. | 1902
Franks had the legal title to certain lands. The Scotts were the equitable, owners of it, having the equity to compel a conveyance from Franks as upon a resulting trust. Franks mortgaged the land to Mrs. Tyson to secure money presently borrowed. Mrs. Tyson had no notice of the Scott’s equity. After this the Scotts filed their bill to enforce the trust in their favor. While this- bill was pending, Franks borrowed money from Gay to pay off the Tyson mortgage, and the money was so used, said mortgage being formally discharged and satisfied; and executed to Gay a mortgage on the land to secure this loan. Some time after this, and while the Scotts’ said bill was still pending, Franks borrowed money from Mrs. Bigelow and to se
But we know of no case which would extend the right of subrogation to the lien of the Tyson mortgage to Mrs. Bigelow, nor, in our opinion, can it be extended upon sound principle. She did not pay off that mortgage, nor did she lend money to Franks with which to pay it off, nor was it paid off with her money. She paid off the Gay mortgage only and that was inoperative against the equity of the Scotts. It is true that Gay as an incident to the circumstances under which his mortgage was taken had a right, of action in equity to be sub-rogated to the Tyson mortgage, which he paid off — a right to have, the chancery court decree an assignment of the lien of that mortgage to'him; but this right was not secured by the Gay mortgage, and it was not in the contemplation of Mrs. Bigelow .when she paid the Gav mortgage; she did not know of its existence; she could
Affirmed.