Hughes v. Howell, 44 So. 410

Hughes v. Howell

44 So. 410 | Ala. | 1907

ANDERSON, J.

The manifest purpose of the bill, before and after amendment, was to enforce the collection of the sum that complainant’s intestate’s estate had to pay the bank for the benefit of the estate of George W. Howell, deceased, and to subject the land of the said estate to the payment thereof. The amendment seeks an equitable subrogation to the lien under the decree in favor of the Kirk heirs, which is but an incident to the collection of the debt, but subjecting the land to the payment of same, and the amendment was not a departure from the original bill. It appears from the bill that the money procured from the bank, upon the indorsement of complainant’s intestate, T. F. I-Iowell, and which was paid by him as his administrator, was to be procured for the purpose of paying off the decree against the estate of George W. Howell in favor of the Kirk heirs, and was so used. It might be that under the authority of Motes v. Robertson, 133 Ala. 630, 32 South. 225, T. F. Howell became the equitable assignee of the decree paid with money procured upon the strength of the credit and which had to be paid to the bank out of his estate, and that he was not a mere volunteer, aside from the fact that he owned an interest in the property upon which the decree operated as a lien; but this we need not decide, as T. F. Howell was a legatee under the will of George W. Howell, and owned an interest in the land covered by the lien which the money, in effect furnished by him, was used to discharge.

*302Our court, in the case of Ohmer v. Boyer, 89 Ala. 273, 7 South. 663, in discussing the doctrine of subrogation not dependent upon contract and known as “conventional subrogation,” but which is the creature of equity designed for the promotion of justice, says: “ ‘The rule ’ says Mr. Pomeroy (2 Eq. Jur. § 729), ‘is well settled that when a life tenant, or any other person having a partial interest only in the inheritance or in the land, pays off a charge or incumbrance on the entire premises, he is presumed to do so for his own benefit. The lien is not discharged, unless he intentionally release it. He can always keep the incumbrance alive for his own protection and reimbursement. His intention to do so will be presumed, even though he has taken no assignment. In fact, his payment constitutes him an equitable assignee.’ And again: ‘In general,’ he observes, ‘when any person having a subsequent interest in the premises, and who is not the principal debtor primarily and absolutely liable for the mortgage debt, pays off the mortgage, he thereby becomes an equitable assignee thereof, and may keep alive and enforce the lien as far as may be necessary in equity for his own benefit. He is subro-gated to rights of the mortgagee to the extent necessary for his own equitable protection.’ — 3 Pom. Eq. Jur. § 1212, and note 2; Id. § 1221; 2 Pom. Eq. Jnr. § 795; Everson v. McMullen, 113 N. Y. 293, 21 N. E. 52, 4 L. R. A. 118, 10 Am. St. Rep. 445; Sandford v. MeLean, 3 Paige 117, 23 Am. Dec. 773 ;Averill v. Taylor, 8 N. Y. 44.” The cases relied upon by counsel for appellees relate to conventional subrogation, and not the kind with which we are dealing. Moreover, the case of Abrahams v. Chapman, 61 Ala. 108, and which is quoted from in the case of R. & D. R. R. v. Sibert, 97 Ala. 393, 12 South. 69, has been explained and modified in the case of' *303Allen v. Caylor, 120 Ala. 251, 24 South. 512, 74 Am. St. Rep. 31.

The bill does not aver when the Kirk' decree was affirmed by this court, which would be the period from which the statute of limitations would commence, but does show that it was filed within 20 years after the rendition of the decree by the chancellor, and was filed in time, adopting the rendition of that decree as the period of computation. The bill was not subject to the demurrers proceeding upon the theory of laches or the statute of limitations. — Subdivision 3, § 2794, Code 1896.

The chancellor erred in sustaining the demurrers, as well as the motion to dismiss for want of equity; and the decree is reversed, and one is here rendered overruling the same.

Reversed and rendered.

Tyson, C. J., and Dowdell and McClellan, JJ., concur.