15 Wis. 612 | Wis. | 1862
By the Court,
It is not necessary to sustain the judgment in this case upon the principle of subrogation. If Miller had simply loaned his credit to Steever to enable him to raise the money with which to pay the Lyness judgment, Miller being in no way bound to pay it, either as security or otherwise, this alone would not have entitled him to be sub-rogated to the rights of Lyness. We know of no case that has ever carried the doctrine of subrogation so far as to hold that a mere loan of money, for the purpose of enabling the borrower to pay a debt, entitles the lender to be subrogated to the rights of the creditor whose debt was thus paid.
Miller’s rights, therefore, must depend entirely on the effect of the agreement between him and Steever, and that we deem sufficient to justify the judgment of the circuit court. That agreement was, that Miller-was, to indorse for Steever so as to enable the latter to raise the money at the bank, but that the money was to be used not to pay and extinguish the Lyness judgment, but to procure an assignment of it to Miller, to indemnify him as indorser.
To use the money thus obtained to pay the judgment and have it discharged, would operate as a fraud upon Miller, and it is upon this ground that he was entitled to the relief
It is true, he claims to have been injured by delaying the enforcement of his own claim, in consequence of Steever's representations that the Lyness judgment was extinguished. He says he might have redeemed the first mortgage, and then have enforced the personal judgment against Olason & Steever. But the case shows that this personal judgment was to have been vacated when the foreclosure judgment was entered as a substitute for it. And although it may not have been so entered on the record, the court would undoubtedly have caused it to be done at anytime on a proper application.
The appellant therefore lost nothing there. Nor do we
The judgment is affirmed, with costs.