Eаstern Savings Bank (Eastern) brought this action for a declaratory judgment to determine the priority of secured interests in real property as between East- *955 erris Deed of Trust securing the payment of an indebtedness owed to Eastern by Vasiliki Pappas and a lien based on an earlier judgment against Vasiliki Pappas in favor of three judgment creditors. The tidal court granted summary judgment in favor of the judgment creditors. On appeal, Eastern contends that its hen is entitled to priority over the creditors’ hen pursuant to the doctrine of equitable sub-rogation. We agree, reverse, and remand.
I.
In June 1980, Aphrodite Pappas, who was the owner of certain real property at 2507 33rd Street, N.W. in Washington, D.C., conveyed that property to Vasiliki Pappas in fee simple. Soon thereafter, Aphrodite Pappas died, leaving three children as heirs. 1 Vasiliki Pappas was named personal representative of Aphrodite Pap-pas’ estate. In 1986, however, the Probate Court removed Vasiliki Pappas as personal representative on account of numerous improprieties on her part in exercising her fiduciary responsibilities. On April 18, 1990, Vasiliki Pappas executed a deed of trust on the 33rd Street property to secure a loan made to her by CitiBank Federal Savings Bank in the amount of $159,000.00 which was duly recorded.
In 1992, and again in 1996, the successor personal representative of Aphrodite Pap-pas’ estate obtained judgments against Va-siliki Pappas in the Superior Court for breach of fiduciary duty. Each judgment was against Vasiliki Pappas personally, and not agаinst her in her capacity as personal representative. These judgments were duly recorded in the land records, and they became effective as judgment hens against all real property titled in the name of Vasiliki Pappas. D.C.Code § 15-102(a) (2001).
Meanwhile, Vasiliki Pappas’ financial difficulties continued, and by 1998, she was in serious default on the CitiBank Deed of Trust. CitiBank instituted foreclosure proceedings. On November 3, 1998, Vasi-liki Pappas secured a loan from Eastern which had the effect of refinancing the earlier CitiBank loan, аnd she duly executed a promissory note in the amount of $168,000.00 payable to Eastern, $153,800.00 of which was used to discharge the earlier CitiBank loan. This note was secured by a new Deed of Trust of the same date. 2
Certified Title Corporation (Certified) performed a title search on the property on behalf of Eastern in connection with the refinancing of the Vasiliki Pappas indebtedness. Certified discovered the first judgment, which had been secured by the Successor Representative of the Estate of Aphrodite Pappas against Vasiliki Pappas in the amount of $3,461.12. Certified mistakenly understood, and incorrectly represented to Eastern, that this judgment had been entered against Vasiliki Pappas solely in her capacity as the former Personal Representative of Aphrodite Pappas’ estate. A duly recorded judgment against Vasiliki Pappas in the amount of $62,397.76, which had been entered by the Probate Division of the Superior Court in 1992, apparently was not discovered, or, at least, not related to Eastern, during the initial title search. The title exаminations were performed by an independent ab-stractor retained by Certified, and Eastern did not receive any title documents which would have imparted actual knowledge of *956 any judgment beyond the one for $3,461.12. 3
Soon after executing the promissory note and Deed of Trust in favor of Eastern, Vasiliki Pappas defaulted on the Eastern loan. As CitiBank had done following Vasiliki Pappas’ earlier default, Eastern instituted foreclosure proceedings. In connection with these proceedings, counsel for Eastern caused the title to be examined, аnd Eastern then actually learned for the first time that the judgment in favor of the heirs was against Vasiliki Pappas individually, and not in her capacity as Personal Representative of Aphrodite Pappas’ estate. 4 It was also at this time that Eastern learned the full amount of Vasiliki Pappas’ total judgment debt.
In March 1999, sixteen years after the death of Aphrodite Pappas, the Probate Court ordered the distribution to the heirs of portions of the judgments secured by the Successor Personal Representative against Vasiliki Paрpas. On December 19, 2000, Eastern brought suit against the heirs, claiming that its hen was superior to their judgment hens under the principle of equitable subrogation. Eastern and the judgment creditors filed cross-motions for summary judgment.
On December 30, 2001, in an eight-page order, the trial court granted the heirs’ motion for summary judgment and denied Eastern’s motion for the same rehef. Citing,
inter alia, Associates Fin. Servs. of America v. District of Columbia,
[t]he lien of a mortgage or deed of trust upon real property, given by the purchaser to secure the payment of the whole or any part of the purchase money, is superior to that of a previous judgment or decree against the purchaser.[ 5 ]
The judge raised, but found it unnecessary to resolve, the issue whether this statutory exception should be extended by the court to a lender like Eastern, who provides refinancing to the borrower by paying off and retiring a prior indebtedness. Relying on
Associates Fin. Servs.,
II.
“Generally, priority of liens or security interests is determined according to the well-known principle of ‘first in time, first in right.’ ”
Malakoff v. Washington,
In
G.E. Capital Mortgage Servs., Inc. v. Levenson,
the substitution of one person to the position of another, an obligee, whose claim he has satisfied.... The basic principles underlying subrogation are the same as thosе in constructive trusts, prevention of merger, and equitable liens, ie., restitution to prevent forfeiture and unjust enrichment.
G.E. Osborne, Handbook on the Law of Mortgages § 277, at 561 (2d ed. 1970) (Osborne). Although the doctrine of equitable subrogation may be applied in many contexts, one context involves the refinancing of a mortgage. Osborne states:
Where a lender has advanced money for the purpose of discharging a prior encumbrance in reliance upon obtaining security equivalent to the discharged lien, and his money is so used, the majority and preferable rule is that if he did so in ignorance of junior liens or other interests he will be subrоgated to the prior lien. Although stressed in some cases as an objection to relief, neither negligence nor constructive notice should be material.
Osborne, § 282, at 570.
Id.
at 1172. The court stated that “[t]he great majority of case law holds that one who pays the mortgage of another and takes a new mortgage as security will be subrogated to the rights of the first mortgagee as against any intervening lienholder.”
Id.
at 1175.
See also, e.g., Caito v. United California Bank,
In this jurisdiction, the doctrine of equitable subrogation was first applied to encumbrances on real property over a century ago.
See Taylor v. MacGreal,
The court found the issue whether equitable subrogation should be liberally or restrictively applied to be a very difficult one; in the court’s view, principles of “benevolent or natural justice” were pitted against the policy of the law favoring consistency and predictability.
9
Nevertheless, the court followed the federal
10
majority rule, quoting at length from
Rachal v. Smith,
Since the equitable doctrine of subro-gatiоn was ingrafted on the English equity jurisprudence from the civil law, it has been steadily growing in importance, and widening its sphere of application. It is a creation of equity, and is administered in the furtherance of justice. It is applied to give the party who actually pays the debt the full benefit and advantage of such payment. It has been long settled, and it is not controverted, that the doctrine applies where a junior in-cumbrancer discharges the prior incum-brance, and where the surety pays the debt of his principal, and in cаses of like character. A just limitation of the application of the doctrine is that it does not *959 apply to payments made by a mere volunteer or stranger....
If [the lender], instead of taking a release of the two mortgages, had taken an assignment of them, the question here discussed would never have been raised. As he paid off the mortgages at the request of the debtors, they would unquestionably have been assigned to him without recourse, had he requested it. He was entitled to an assignment-If it be correct that [the lender’s] position was not that of a volunteer or stranger, then it is immaterial that a release, instead of an assignment, was made. Where the rights of innocent third persons have not intervened, the release will not prevent the person making the payment from becoming the equitable assignee of the claim paid.
With respect to the issue here presented, the decision in Burgoon is also consistent with the Restatement (Thied) of PROPERTY: Mortgages § 7.6 cmt e. (1997):
Perhaps the case occurring most frequently is that in which the payor is actually given a mortgage on the real estate, but in the absence of subrogation it would be subordinate to some intervening interest, such as a junior lien. Here subrogation is entirely appropriate, and by virtue of it the payor has the priority of the original mortgage that was discharged. This priority is often of critical importance, since it will place the payor’s security in a position superior to intervening liens and other interests in the real estate. The holders of such intervening interests can hardly corn-plain of this result, for it does not harm them; their position is not materially prejudiced, but is simply unchanged.
Many judicial oрinions dealing with a mortgagee who pays a preexisting mortgage focus on whether the payor had notice of the intervening interest at the time of the payment. Most of the cases disqualify the payor who has actual knowledge of the intervening interest, although they do not consider constructive notice from the public records to impair the payor’s right of subrogation. Under this RESTATEMENT, however, subrogation can be granted even if the payor had actual knowledge of the intervening interest; the payor’s notice, aсtual or constructive, is not necessarily relevant.[ 11 ]
The Restatement farther states, and we agree, that “[s]ubrogation will be recognized only if it will not materially prejudice the holders of intervening interests.” Id.
The heirs contend that they would be materially prejudiced if equitable subrogation were applied, because they had the right to expect, under the “first in time, first in right” rule, that their judgment liens would advance upon the satisfaction of CitiBank’s lien and would therefore be superior to Eastern’s lien, which was secured later in time. This contention was, however, explicitly rejected in Bur-goon:
The junior lienor had a right to advance if the prior encumbrance was paid off by one not entitled to subrogation; he had no such right if the prior lien was satisfied by one entitled to subrogation.
The only advantage they have gained is through the money paid by [the purchaser], without any consideration whatever moving from them. They claim the benefit, solely through the mistake оf [the purchaser]. The [junior lienor] does not pretend to have earned a farthing of their claim. They simply say, the cold blood of the law permits them to take ... [the purchaser’s] money.
We think that to recognize equitable assignment does not impair any rights of the junior lienor worthy of equitable recognition against the position of one who in ignorance of the junior lien advances a part of purchase price to discharge a senior lien. For the only “rights” of the junior lienor that can be said to be actually impaired are gambling “rights” to profit by a purchaser’s mistake.
The heirs argue that the interest rate of Eastern’s note is far higher than that of CitiBank’s, that the terms of Eastern’s loan are more exacting, and that the heirs are thereby prejudiced because any funds available to them will be incrementally depleted as a result of the refinancing. Except as reflected in footnote 13, infra, this contention is unpersuasive. Eastern concedes in its Reply Brief, and counsel repeatedly acknowledged during oral argument, that Eastern is subrоgated only to the extent that it was required to pay CitiBank to satisfy VasiliM Pappas’ indebtedness to CitiBank. 13
*961
In
Caito,
(1) Payment [was] made by the subro-gee to protect his own interest. (2) The subrogee [has] not ... acted as a volunteer. (8) The debt paid [was] one for which the subrogee was not primarily liable. (4) The entire debt [has] been paid. (5) Subrogation [would] not work any injustice to the rights of others.
See also Han v. United States,
III.
Relying on the opinion of the trial court, the heirs also contend that D.C.Code § 15-104, quoted on page 956,
supra,
which accords priority to “the liеn of a mortgage or deed of trust upon real property, given by the purchaser to secure the payment
of the whole or any part of the purchase money”
(emphasis added), provides the sole exception in this jurisdiction to the principle “first in time, first in right.” There is dictum in
District of Columbia v. Franklin Inv. Co.,
Section 15-104 addresses an issue materially different from the question presented in equitable subrogation cases. The statute has to do with the debts of the *962 purchaser of real property, and provides that when a purchaser gives a purchase money mortgage to secure all or part of the purchase price, the lien on that property takes priority over pre-existing liens held by other creditors of the purchaser which would otherwise attach to the property as soon as the buyer receivеs title, and which, under the maxim of first in time, first in right would outrank the purchase money lien.
Equitable subrogation, on the other hand, addresses the priority of liens held by creditors of the owner of property. The doctrine is applied where the subrogee effectively stands in the shoes of the original lienholder, and where the failure to apply it would unjustly enrich prior judgment creditors at the subrogee’s expense. This purely equitable issue does not arise in cases governed by § 15-104.
Because the statute and the equitable doctrine address distinctly different issues, the courts that sustained equitable subro-gation in the decisions discussed in this opinion did not mention the existence of § 15-104 or of its analogue in other jurisdictions. When
Burgoon
was decided, for example, D.C.Code § 24-328 (1929) — the predecessor of § 15-104 — provided that “the lien of the [purchase money mortgage] or deed of trust on the property shall be superior to that of a previous judgment or decree against the purchaser.” The statute did not address the issue presented in
Burgoon,
and the court consequently did not address or discuss, or even cite the statute. Similarly, when the Maryland Court of Appeals held in the
G.E. Capital Mortgage Services
case that a refinancing mortgage lender without actual notice of the hens of earlier judgment creditors had priority over those creditors’ hens,
In essence, the heirs seek to apply the Latin maxim of
“expressio unius est exclusio alterius”
to the provisions of § 15-104. They argue, in substance, that the statutory exception to “first in time, first in right” is, by implication, the
only
such exception. However, “[t]he
expressio unius
maxim ... must be apphed with a considerable measure of caution.”
Council of the District of Columbia v. Clay,
iy.
For the foregoing reasons, the judgment of the trial court is reversed, and the case is remanded for further proceedings consistent with this opinion.
So ordered.
Notes
. The three heirs, who later became the judgment creditors, were Achilles Pappas, Mary Pappas West, and the late Frances Papag-eorge.
. The interest rate on CitiBаnk’s promissory note was approximately 10.5%; the rate on Eastern’s note was 14.25%. See note 13, infra. In other respects as well, the terms of Eastern’s note were less favorable to the debtor than the terms of CitiBank’s note.
.There is thus no claim in this case that Eastern, as distinguished from Certified, had actual rather than constructive notice of any judgment in favor of the heirs against Pappas in her individual capacity.
. Following the institution of the present action, Eastern learned that other judgments which had been entered against Vasiliki Pap-pas had been assigned to the heirs.
. The statute in the 2001 edition of the Code is unchanged from prior editions.
. In
United States v. Halton Tractor Co.,
.
Burgoon
involved a purchaser rather than a refinancing lender, but this difference is not dispositive. In fact,
Burgoon
was cited in
G.E. Capital Mortgage Servs.,
.“It is well settled that recording gives only constructive notice, not actual notice.”
Han v. United States,
. The court stated:
We are still put to a choice between the rule requiring strict application of the doctrine of subrogation, and the so-called benevolent or natural justice or liberal rule adopted in Hudson v. Dismukes, supra. We are obliged further to give more specific attention to the Federal cases, for in the interest of certainty in Federal law we should not, except for most cogent reasons, depart from a clear path already taken by the courts in the Federal system. If there werе no Federal cases of highly persuasive character and no considerable number of authorities supporting the so-called liberal view, we should be much inclined toward accepting the strict one for this jurisdiction. Especially in the field of property transactions the decision of cases according to certain rules rather than according to the view of a chancellor as to what is equitable on the particular facts of each case is highly desirable. For, while the liberalization of law by еquity was and is necessary and wholesome, it is not to be gainsaid that its price is an uncertainty of decision which should be extended with great caution. Moreover, the relief from their folly of those who in respect of contemplated property transactions do not consult available lien records seems more the task of the school than of the court.
.
Burgoon
was decided one year before
Erie R.R. Co. v. Tompkins,
The heirs contend the
Burgoon
has been “overshadowed” by
First Maryland Fin. Servs. Corp. v. District-Realty Title Ins. Corp.,
. Because, albeit arguably on account of its own negligence or the negligence of Certified, Eastern did not have actual notice of the heirs’ intervening liens, we need not decide whether to follow the majority rule (actual knowledge bars equitable subrogation) or the RESTATEMENT rule (it does not).
. In
Bennett v. Westfall,
It is clear that appellee’s failure to consult the Land Records in no way affected the appellant. It certainly did him no harm. If his contention is sustained in this case it will do him a great deal of good, and this, too, because of a mistake made by appellee in not consulting the Land Records. His position is: You made a mistake, it did me no harm; in fact, resulted in greatly benefit[t]ing me. Therefore, you can not have your mistake corrected. This position has no appeal to a court of equity. Negligence, therefore, if any there was, committed by appellee, caused no harm to the appellant and it is immaterial.
Accord, G.E. Capital Mortgage Servs.,
. On remand, however, we explicitly leave open the question whether, and to what extent, Eastern is entitled to equitable subrogation for interest on the $153,800.00 it paid CitiBank to release CitiBank’s Deed of Trust. Eastern argues that it is entitled to be subro-gated for "$153,800.00 together with interest thereon at the rate provided in the Note secured by the CitiBank Deed of Trust from the date that indebtedness was paid.” The heirs do not address this point; their entire argument is focused on the question whether Eastern is entitled to equitable subrogation at all.
This issue is not an easy one, and turns on the perspective from which it is viewed. The Restatement provides that a "payor is subro-gated only to the extent that the funds disbursed are actually applied toward payment of the prior lien. There is no right of subro-gation with respect to any excess funds.” Restatement (Third) of Property, supra, § 7.6 cmt. e. In this case, Eastern was required to pay only a total of $153,800.00 to secure from CitiBank a release of CitiBank’s lien. If Eastern is held to be entitled, under principles of equitable subrоgation, to interest at the rate provided in the CitiBank Note, its rights as a subrogee will exceed the amount which was "actually applied [by Eastern] toward payment of the prior lien.”
On the other hand, the focus of the Restatement is on whether subrogation will prejudice intervening lien holders.
See id.
CitiBank's Note provided for interest, and the Note itself was in an amount in excess of the $153,800.00 now claimed by Eastern. The heirs are therefore arguably better off
vis-a-vis
Eastern than they were
vis-a-vis
CitiBank, and they would suffer no prejudice even if the
*961
court were to hold that Eastern is subrogated to the amount of $153,800.00 plus interest.
Cf. Am. Nat'l Bank v. Clark,
The precise issue that we have identified in this footnote has not been addressed by the parties, and there has thus been no adversarial crossing of swords. We therefore decline to resolve the issue as an initial matter on appeal, and instead leave it to the trial court to decide it, in the first instance, on remand, following appropriate briefing by thе parties.
We also note that the sole indicator in the record as to the interest rate on CitiBank’s Note is an affidavit of the debtor stating that the loan "had an interest rate of about 10.5% per year.” (Emphasis added.) If necessary, the trial court should, upon remand, ascertain the precise interest rate specified in Citi-Bank’s Note.
. The court stated in Burgoon:
This theory that the purchaser is a volunteer is, we think, entitled to little weight. The purchaser is advancing his money intending to get something for it, to wit, a title unencumbered by the lien to be discharged. It is hardly in accord with reality to say that he pays officiously, as an in-termeddler.