80 So. 413 | Ala. | 1918
The bill was filed under the statute for the purpose of quieting title to *332 lands and to remove as a cloud a mortgage executed by complainants' mother and father.
On November 28, 1903, Bammer Hampton purchased the lands from her husband, James, for the recited consideration of $1,400, of which $800 was recited as having been paid in cash, and the assumption of the payment of a mortgage given by the said James and wife to Mrs. Kate M. Johnson, on January 9th or 15th, and filed for record January 20, 1903, and on which it was recited as due the sum of $600. This deed was filed for record on December 10, 1903. The said Bammer (on March 15, 1907), her husband joining in the conveyance, sold the lands in question to complainants, and the conveyance was recorded on May 25, 1907.
Theretofore (on February 13, 1907), and prior to their conveyance to complainants, said lands were mortgaged by James and Bammer Hampton to Wilson Co. for the sum of $1,477.50, to secure the necessary moneys with which to free the lands from the mortgage to Mrs. Kate M. Johnson (of date 9th or 15th of January, 1903), duly assigned and transferred by her to C. R. Burgess on July 25, 1905, for $1,012, and a mortgage by the Hamptons to the said Burgess for $434.35 of date February 28, 1906. The accrued taxes and said mortgages were paid in full with the $1,477.50, which was the proceeds of, or consideration for, the Wilson mortgage, per the agreement of Hampton and Wilson. On June 16, 1914, Wilson Co. transferred its said mortgage for $2,346.30, the amount due thereon, to appellee, who was then a judgment creditor of the said James Hampton.
The fact that the Johnson and Burgess mortgages were satisfied rather than transferred to Wilson Co., under the agreement of the parties, did not prevent the subrogation of Wilson Co., as mortgagees, to the legal or equitable rights of Johnson and Burgess under said respective mortgages. Having paid off the same at the request of the mortgagor, with just expectation that Wilson Co. would have like securities for the moneys with which the payments were made, such mortgagee was not a "mere stranger and volunteer in respect of such payment," and was and is entitled to avail of the lien so discharged. Marlowe v. Benagh,
In Cook v. Kelly, supra, it is said:
"One who advances money for the discharge of a prior lien, though he be without previous interest in the subject of the lien, is not a stranger, and that such an one is entitled to the benefit of the doctrine of subrogation where that course will best subserve the substantial purposes of justice and the true intention of the parties."
In Fouche v. Swain, supra, the declaration is made that equity will, in such cases, keep alive the prior incumbrance as against strangers and third parties, even though it has been satisfied of record, where this can be done without injury to them.
The judgment creditor, Mr. Counts, having a lien by reason of the judgment registration statutes (Code 1907, §§ 4156-4158), was no mere stranger or volunteer in acquiring and clearing the property of the superior mortgage of Wilson Co., and had the right of redemption therefrom (Baker-Lyons Co. v. Eliasberg Bros. Mer. Co.,
The bill, being filed in a double aspect, not only under the statute to quiet title, but also for the purpose of removing a cloud from the title by cancellation of the Wilson Co. mortgage or subrogated lien of the Johnson mortgage, in the latter aspect, should have offered to do equity by paying the amount due thereon. Coburn v. Coke, as Trustee,
We may remark, by the way, that we are not convinced that the rent of the land alleged to have been paid was in excess of the mortgages, or that the debt or a substantial part thereof was not that of Bammer Hampton. There is another reason why the decree may not be disturbed; the record shows that certain of the testimony was taken orally and submission was had thereon (Andrews *333
v. Grey,
The decree is affirmed.
Affirmed.
ANDERSON, C. J., and MAYFIELD and SOMERVILLE, JJ., concur.