125 Cal. 645 | Cal. | 1899
This is the third appeal of the case. Originally, the action was to foreclose a mortgage executed by one German M. Rouse, under power of attorney, in the name of defendant, who was then his wife. At the first trial the court below held the note and mortgage to have been given without authority, but entered a personal judgment against defendant for $1,271 and costs. On appeal, this judgment was reversed as outside the issues. (Brown v. Rouse, 93 Cal. 237.) At the second trial plaintiff amended his complaint, alleging a loan of $1,200 on November 18, 1887, and its nonpayment. Plaintiff had a personal judgment for $1,510.68 and costs, on the theory that defendant had ratified the loan. On the second appeal the judgment was reversed, on the ground that the evidence failed to establish ratification. (Brown v. Rouse, 104 Cal. 672.) De
As to the loan of $1,200, the court found that defendant’s husband, assuming to act as agent and attorney in fact, and in pursuance of said power of attorney, borrowed from plaintiff and said plaintiff loaned to defendant the sum of $1,198, and gave therefor to said plaintiff a promissory note executed by said German M. Rouse, in the name of said Charlotte D. Rouse, for $1,200, which remains unpaid except the said sum of $481.65, and that defendant “did receive by her said husband, and as her agent, the residue of said $1,198.....Subsequently to said eighteenth day of November, 1887, and from time to time, she ratified and confirmed the loan made by Brown by letters instructing the payment of interest on said loan after being fully informed and having specific and complete knowledge of said loan and all the circumstances thereof.” These interest
So far as the alleged ratification of the loan is concerned, the case is in no particular strengthened by any new evidence. Plaintiff added to Ms testimony given at the second trial the following as to the loan to Mrs. Bouse: “She got the full benefit of it.” He had no personal knowledge of the fact; he never saw her, and at the time defendant’s husband borrowed the money she was in Washington Territory and he was in California. His statement has no probative value. Added to the former evidence are certain letters—one from Mrs. Bouse to Bucket & Son, her then agents in San Jose, dated July 21, 1887, relating to the management of the property, and stating her desire to sell at a price not less than $2,000, and refers to the mortgage then on the place; a letter also dated October 27, 1887, from Bucker & Son to J. II. Durst of San Francisco, defendant’s nephew, calling attention to an offer they had for the property, to which Durst replies October 28th, stating that he has not heard from Mrs. Bouse lately and must refer the matter to her. These were all written before the alleged loan and seem to have no relation to it, and certainly cast no light upon the alleged ratification of the loan subsequently made. The evidence as to
Upon substantially the same evidence as now here the trial court at the second trial found, as cone 'usion of law, that plaintiff was not entitled to be subrogated to the Davis mortgage, but was entitled to recover the amount of the loan on the ground of ratification. The court at the last trial made no finding as to the right of plaintiff to be subrogated to the Davis mortgage, but found that plaintiff was entitled to recover the amount of the loan with interest at seven .per cent from November 18, 1887.
Plaintiff, however, urges his right to be subrogated to the Davis mortgage, and he prays that this may be done; but he does not ask that he be treated as the equitable assignee of the Davis mortgage, and that it be foreclosed for his benefit, the property sold and its proceeds applied to the payment of his claim to the amount of the Davis mortgage. Subrogation is the substitution of another person in the place of a creditor, the substituted party succeeding to the rights of the creditor in relation to the debt. The substitute is put in all respects in the place of the party to whose right he is subrogated. (Sheldon on Subrogation, sec. 1.) The Davis note was dated January 1, 1884, and was due twelve months after its date. The statute of limitations barred foreclosure after January 1, 1889. There is evidence tending to show that this action was not brought until after January 1, 1889, and after the Davis note and mortgage were barred by the statute; and defendant has pleaded the statute. It is not necessary to pass upon the question of limitation.
The right of subrogation in this case rests upon the undisputed facts that plaintiff’s mortgage was made without defendant’s authority, and we have held that it was not afterward ratified; it therefore is a nullity as to defendant; when plaintiff made the loan to Bouse, the two went together with Davis to the recorder’s office; out of the money loaned the Davis mortgage was paid, and it was thereupon satisfied of record, and the plaintiff’s mortgage was then recorded; plaintiff had previously caused the record to be searched; he testified: “Being told by Mr. Bailey that the title was all right, and that the power of attorney was all right and of record, and appeared in the ab
We think Guy v. Du Uprey, supra, correctly states the law of this case, and is in harmony with adjudications of the question in other states. (See cases collected in 24 Am. & Eng. Ency. of Law, 281, tit. Subrogation; Sheldon on Subrogation, sec. 240.)
The case of Campbell v. Foster Home Assn., 163 Pa. St. 609, 43 Am. St. Rep. 818, in most respects, was a counterpart of the case here. The mortgage under which subrogation was claimed was executed under a power of attorney to sell, and the money borrowed by this mortgage was, in part, used to pay off and discharge then existing prior mortgage liens. Both questions as to the power to mortgage under a power to sell and the right of subrogation had very full consideration, and an unusually painstaking examination of the authorities is shown in the opinion. It was held that the mortgagee, on the second mortgage being declared invalid, had no right to be subrogated to the position of the first mortgagee so as to recover the six thousand dollars paid in extinguishment of the first mortgage. It was said in Webster’s Appeal, 86 Pa. St. 409: “While subrogation is founded upon principles of equity and benevolence, and may be decreed where no contract exists, yet it will not be decreed in favor of a mere volunteer who, without any duty, moral or otherwise, pays the debt of another. It will not arise in favor of a stranger, but only in favor of a party who, on some sort of compulsion, discharges a demand against a common debtor.”
At the second trial defendant expressed a willingness to pay
We advise that the judgment and order he reversed.
Gray, C., and Haynes, C., concurred.
For the reasons given in the foregoing opinion the judgment and order are reversed.
Harrison, J., Garoutte, J., Yan Dyke, J.
Hearing in Bank denied.;