32 Mo. App. 560 | Mo. Ct. App. | 1888
— In this case the circuit court' sustained a demurrer to plaintiff’s petition and entered a judgment thereon, from which plaintiff has appealed to this court. Therefore, the only question for our consideration is the sufficiency of the petition, which, in substance sets forth the following facts as a cause of action: That on the sixth day of March, 1876, the plaintiff William O. Johnson purchased of one W. H. Johnson certain lands situated in Chariton county, Mo., described in the petition, and received a general warranty deed therefor ; that said deed was, on the tenth day of January, 1878, recorded in the office of the recorder of deeds, within and for said county ; that- on the thirtieth day of March, 1876, after the execution and delivery of said ‘deed to plaintiff, but before it was filed for record, the said W., H. Johnson executed and delivered to the county of Chariton a mortgage on said lands with power of sale, to secure to said county the payment of three promissory notes, described in the mortgage, and which were, at that date, given by said W. H. Johnson to said county for certain school money which he then borrowed from the county ; that one of - these notes was for the principal sum of two hundred dollars, one for $219.75 and one for twenty-one dollars, each due one year from date and bearing interest at the rate of ten per cent, per
“ Equity does not admit the doctrine of equitable assignment in favor of every person who pays off a mortgage. Such relations must exist towards the mortgaged premises or with the other parties, that the payment is not a purely voluntary act, but is an equitable, necessary or proper means of securing the interests of the one making it from possible loss or injury. The payment must be made by, or on behalf of, a person who has some interest in the premises, or some'claim against other parties, which he is entitled in equity to have protected and secured. A mere stranger, therefore, who pays off a mortgage as a purely voluntary act can never be an equitable assignee.” Pom. Ex. sec. 1212. The general principle here quoted is recognized and controls courts generally where the question under consideration is involved. 1 Lead. Cas. in Eq. 154, et seq.; Wilson v. Brown, 13 N. J. Eq. 277; Wolf v. Walter, 56 Mo. 292; Evans v. Halleck, S3 Mo. 376. “Before a third party, making payment of a debt secured by a mortgage, can be subrogated to the rights of the mortgagee, he must show either that he made the payment at the request of the mortgagor, or to protect some interest he had of his own at the time of the payment.” Norton v. Highlyman, 88 Mo. 621; Bunn v. Lindsey, 95 Mo. 250. There is no allegation in the petition that plaintiff made the payments to the county at the request of the mortgagor or of either of the defendants to this suit, nor that plaintiff was in any manner secondarily liable to the
The judgment of the circuit court is affirmed.