16 Cal. 195 | Cal. | 1860
Field, C. J. concurring.
This is an action to subject the property of an infant to the payment of a debt contracted by his guardian. The suit is based upon a mortgage, which was executed by the guardian without authority, and is therefore invalid. The plaintiff claims, however, that, conceding the invalidity of the mortgage, there are certain equities in the case which entitle him to recover.
The infant derived his right to the property through a conveyance from his mother, who was subsequently appointed his guardian, and in that capacity executed the mortgage referred to. The mother acquired the property by purchase, and had given a mortgage upon it to secure the payment of eight hundred dollars of the purchase money. A portion of the amount included in the present mortgage was advanced for the purpose of paying off this incumbrance, which was thereupon satisfied and discharged. The plaintiff, who is the assignee of the mortgage, claims that he is entitled to be subrogated to the rights of the first mortgagee, and to have the incumbrance, thus paid off and discharged, enforced for his benefit.
There are, says Bouvier, three kinds- of subrogation. The first, is where the owner of a thing voluntarily assigns it. The second, is where a man pays a debt which cannot properly be called his own, but which it is his interest to pay, or which he might be compelled to pay for another. The third, is where the debtor borrows money expressly to pay off his debts, and with the intention of substituting the lender in the place of the original creditor. (2 Bouv. Law Dic. 554.)
In the present case there was no assignment of the mortgage, but the debt was paid off, and the mortgage itself canceled and released. The person who advanced the money, had no interest either in the payment of the debt or the release of the mortgage. He supposed, no doubt, that he was obtaining a valid lien upon the property, and was acting for his own advantage in relieving it of a prior incumbrance. In this, however, he was mistaken, but his mistake originated in a misapprehension of the legal effect of his own mortgage. He was fully advised of the facts, and we have already stated that this mortgage was invalid, and did not bind the property. Ho had therefore no interest to be pro
The strongest case cited by plaintiff’s counsel in support of their position, is that of Carr v. Caldwell (10 Cal. 380). The facts of that case were somewhat peculiar, and the decision must be considered with reference to these facts.
In Dillon v. Byrne (5 Cal. 455) the wife of the defendant intervened, and attempted to set up a homestead interest, as against a mortgage executed to secure the payment of a portion of the purchase money. It was held that this could not be done, and the decision was undoubtedly correct. There was no question of subrogation in the case, and it was not pretended that the plaintiff was entitled to recover except upon the mortgage itself. In Robinson v. Leavitt (7 N. H. 73) the true principle was declared to be that, where money due on a mortgage is paid, it shall operate as a discharge of the mortgage, or in the nature of an assignment of it, substituting him who pays in the place of the mortgagee, as may best serve the purposes of justice and the just intent of the parties. In Silver Lake Bank v. North (4 John. Ch. R. 370) substitution was decreed, upon the ground that the payment of the money was an act that the plaintiffs were compelled to do for their own safety.
No authority has been cited, and we think none can be found, to sustain the proposition that a mere stranger, who steps forward and voluntarily pays money due upon a mortgage, and fails to take an assignment, but allows the mortgage to be canceled and discharged, can afterwards come into equity, and in the absence of fraud, accident and mistake, have the mortgage reinstated and himself substituted in the place of the mortgagee. This is the naked proposition involved in the present case, and we are clear and decided in our opinion that it cannot be maintained, either upon principle or authority. It is true, the plaintiff relies for a
The only additional point is, that the plaintiff is entitled to a lien upon the property for certain improvements placed upon it under a contract with the guardian. This contract the guardian had no authority to make, and we do not see upon what principle it can be used to support an equitable claim against the property. The person who made the improvements, and to whose rights the plaintiff succeeded, was fully informed of the title and condition of the property, and his position was not analogous, in any respect, to that of a purchaser or bona fide possessor. He acted upon the faith of a contract which had no validity, and however meritorious his claim may be in a moral point of view, it does not come within any principle upon which equity administers relief in such cases.
Our conclusion is, that the plaintiff is not entitled to recover, and it is therefore ordered that the judgment of the Court below be reversed, and the suit dismissed.