Gilman v. Dingeman,

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| Iowa | Oct 23, 1878

Rothrock, Ch. J.

1. vendor's lien; priority of lieas: mortgage. It appears from the agreed facts that both of the defendants’ judgments were rendered before Dingeman purchased the land. . The land was purchased on the 27th day of November, 1875, and the deed was placed on record two days afterward. There was no mortgage made at the time the deed was executed and delivered. The deed was made and delivered to Dingeman, and placed on record by him, or by some one for him. Prom the date of this conveyance the judgments of the defendants became a lien upon the land. Whether such lions are prior and superior to' the mortgage of the plaintiff must depend upon the question whether the mortgage can be properly hold to be a vendor’s lien.

■The mortgage to the Hospital Trust Company was made December 7, 1875. This mortgage was recorded, but, as we understand the statement of facts, the trust company did not complete its loan by the payment of any money. We take it that the expression “the sums aforesaid were paid by the said Hannah H. Gilman,” means that she advanced the same by paying it to Betten, the vendor, for Dingeman, the purchaser. It was applied pro tanto in satisfaction of Betten’s claim for purchase money. The mortgage in suit was executed and delivered on the 4th day of January, 1870, but was dated December 1, 1875, probably to correspond with the time the money was actually paid. If Betten, the vendor of the land, had taken, this mortgage to secure the unpaid purchase money, the lien of the mortgage would have been prior to the lien of the judgments. Parsons v. Hoyt, 24 Iowa, 154" court="Iowa" date_filed="1867-01-31" href="https://app.midpage.ai/document/parsons-v-hoyt-7093977?utm_source=webapp" opinion_id="7093977">24 Iowa, 154. Possibly if the deed to Dingeman and the mortgage to the plaintiff had been made at the same time, so as to constitute one transaction, the lien of the judgments should not be allowed to intervene. 14 Mass., 351" court="Mass." date_filed="1817-09-15" href="https://app.midpage.ai/document/clark-v-munroe-6404632?utm_source=webapp" opinion_id="6404632">14 Mass., 351; 9 Allen, 24; 11 Allen, 407. *311If the plaintiff had been surety .for the payment of the purchase money, possibly, upon payment being made, she would have been entitled to be subrogated to the rights of the vendor. Mackreth v. Simmons, 1 Leading Cases in Equity, 336; Story’s Equity, § 499.

But the plaintiff was a stranger to the purchase of the land. There was no privity between her and the vendor. There • was no assignment of the lien for the purchase money. She did not contract with the vendor. She made a loan of money to the purchaser to pay the purchase money, and, although she may have actually paid the money to the vendor, yet it was but a payment of the purchase money, the same as though she had paid it .to Dingeman and he to Betten.

Counsel for plaintiff insists that she is entitled to be subrogated to all the rights held by Betten as vendor. “Subrogation is in effect an assignment or transfer, by implication or operation of law, as deduced from the act of the parties.” 1 Leading Cases in Equity, 369. As we understand the rule this assignment by implication or operation of law does not operate in favor of one who pays a debt for which he is in no way responsible. Wilkes v. Harper, 1 Com., 586; Domm v. Miller, 15 Wis., 612" court="Wis." date_filed="1862-11-26" href="https://app.midpage.ai/document/downer-v-miller-6598773?utm_source=webapp" opinion_id="6598773">15 Wis., 612; 2 Washburn R. P., 92.

Aside from these considerations it is questionable whether a simple vendor’s lien for purchase money is paramount to the lien of a judgment obtained without notice of the rights of the vendor. In Allen v. Loring, 34 Iowa, 499" court="Iowa" date_filed="1872-07-25" href="https://app.midpage.ai/document/allen-v-loring-7095313?utm_source=webapp" opinion_id="7095313">34 Iowa, 499, it was held that the lien of an attaching creditor without notice is superior to a vendor’s lien for purchase money. As an attaching creditor only takes the interest of the debtor in the property attached, it is no greater and reaches no farther than the lien of a judgment creditor.

Reversed.