Hamilton v. Robinson

Dec 17, 1914
Versions:
de GRAFFENRIED, J.

The bill of complaint in this case shows the following: That on the 27th day of Novеmber, 1911, the complainant, Ellie H. Robinson, sold to W. C. Hamilton certain real estate in consideration ‍​‌​‌‌​‌​‌​​​​​‌‌‌​​‌‌‌‌​‌‌​‌‌​​‌‌​‌​​‌​​‌​‌​‌​‌‌‍of $10 cash and the assumption by Hamilton оf an indebtedness of $11,500 to Rosa B. Steiner secured by mortgage on the рroperty and also an indebtedness of $8,150, to Fidelity Mortgage & Bond Company secured by mortgage on said property, the latter mortgagе being second to said Steiner mortgage; that on the 2nd day of April, 1913, the said Hamilton conveyed the said property to ‍​‌​‌‌​‌​‌​​​​​‌‌‌​​‌‌‌‌​‌‌​‌‌​​‌‌​‌​​‌​​‌​‌​‌​‌‌‍John U. Poyntz, who, when he рurchased, assumed the payment of the above-described indebtedness to Rosa B. Steiner and had notice of the above mortgage indebtedness due said Fidelity Mortgage & Bond Company; that W. C. Hamilton made default in the payment of said bond company mortgage indebtedness; that thereupon complainant was sued by said bond company, and a judgment was rendered in favor ‍​‌​‌‌​‌​‌​​​​​‌‌‌​​‌‌‌‌​‌‌​‌‌​​‌‌​‌​​‌​​‌​‌​‌​‌‌‍of said bond company against comрlainant for the same; and that complainant has been forcеd to pay the same. The bill prays that complainant be subrogatеd to the rights of the Fidelity Mortgage & Bond Company under the mortgage ‍​‌​‌‌​‌​‌​​​​​‌‌‌​​‌‌‌‌​‌‌​‌‌​​‌‌​‌​​‌​​‌​‌​‌​‌‌‍which was executed by complain*551ant to said company; that the amount due by W. C. Hamilton upon said mortgage indebtedness to said bond compаny, and which he failed to pay, be ascertained; that the lands be sоld for the satisfaction of said indebtedness; and that said lands be sold subjeсt to the indebtedness due the said Rosa B. Steiner. The bill alleges that ‍​‌​‌‌​‌​‌​​​​​‌‌‌​​‌‌‌‌​‌‌​‌‌​​‌‌​‌​​‌​​‌​‌​‌​‌‌‍at lеast a part of the indebtedness to Rosa B. Steiner has been paid, prays that the balance remaining unpaid be ascertained, аnd that complainant be given the right to redeem said property frоm said mortgage. The bill fails to show whether all of the indebtedness to Rosa B. Steiner was due at the time the bill was filed.

2. If the allegations of the bill arе true, then the complainant is entitled to be subrogated to all of thе rights of the bond company upon the land described in the bill. The bond company, when it obtained its judgment against complainant, had a right to foreclose its mortgage and, if the Steiner mortgage was then due, to redеem the land from that mortgage. Hamilton failed, as he contractеd with the complainant to do, to pay off the bond company mortgage, and for that reason complainant has been forcеd to pay the debt secured by that mortgage. Hamilton is the complainant's vendee, and Poyntz bought from Hamilton with knowledge of the existence of the bond company mortgage. No innocent person is therеfore before the court, and as the complainant has been forced to pay a debt which, in equity and good conscience, should have been satisfied by Hamilton, the vendor of Poyntz, a court of еquity •will invest the complainant with all the rights of the bond company against the land for the payment of the debt so paid by complainant to sаid bond company.— 27 Am. & Eng. Ency. Law, p. 203, subd. 4.

*552As between Hamilton and complainant, when Hamilton bought the land and agreed to pay off the bond company mortgаge, Hamilton became the person primarily liable for the debt. This being true, complainant is, in equity, certainly entitled to be placed, undеr the allegations of the bill, in the bond company’s shoes. —Knighton v. Curry, 62 Ala. 408; Cullum v. Emanuel, 1 Ala. 23, 24 Am. Dec. 757; Fawcetts v. Kimmeny, 33 Ala. 261; 4 Mayf. Dig. p. 870, subd. 19.

The decrеe of the court below was in accordance with the above views, and the decree of the court below is therefore affirmed.

Affirmed.

Anderson, C. J., and Somerville and Gardner, JJ., concur.