38 Minn. 459 | Minn. | 1888
The disposition of this case is much embarrassed by irregular practice and loose pleading. If the point had been made, the demurrers should have been overruled, on the ground that a demurrer will only lie to a whole pleading, or to the whole of a particular cause of action or defence. It cannot be directed to a portion only of a single cause of action or defence, for the manifest reason that a demurrer raises an issue of law upon which the court is to render judgment. Bass v. Upton, 1 Minn. 292, (408;) Daniels v. Bradley, 4 Minn. 105, (158;) Armstrong v. Hinds, 9 Minn. 341, (356.)
But we think the same result must be reached if we treat the part of the reply demurred to as intended as a separate and independent defence. The answer alleges that, at the time of the execution of the note sued on, the defendants, to secure the same, executed a mortgage to one Thompson, plaintiff’s assignor, and the original payee of the note; that subsequently they sold and conveyed the mortgaged premises to one Abbie Crossman, who, in consideration of such conveyance, and as part-payment of the purchase-money, assumed the payment of this note and mortgage. So far as appeared from the answer, the only interest plaintiff had in the premises was as security for the payment of this note. Upon such a state of facts, there is no difficulty in applying the doctrine of subrogation in favor of defendants in ease they had to pay the note, which, as between them and Crossman, the latter ought to have paid.
But, in the part of the reply demurred to, the plaintiff alleges that defendants sold to Thompson a second mortgage on the same premises, and the three notes secured thereby, executed by Crossman to the defendant Elizabeth to secure the balance of the purchase-money
No court of equity would subrogate a party to the rights of a mortgagee under a first mortgage; when he also held a second mortgage, for the payment of which the party seeking the subrogation was liable, unless he paid both mortgages. To grant subrogation on any other terms would compel the mortgagee, in order to protect his second mortgage, to turn around and pay off the first mortgage to the very party who was legally bound to pay the second. But, assuming that defendant Elizabeth is no longer liable on these notes, we still think that defendants would not, upon the facts stated in the reply, be entitled to the right of subrogation. Had plaintiff himself taken from Crossman a second mortgage without the consent of the defendants, and with notice of the relations between them and her as to the payment of the first mortgage, a very different case would have been presented. But in the present case the defendants themselves took the second mortgage, and then sold it to one to whom they had previously, as'principal debtors, executed the first mortgage. This they did without any reference to or reservation of any supposed rights on their part arising out of the arrangement between them and Crossman regarding the payment of the first mortgage, to which the mortgagee was in nowise a party. By so doing, we think they must be taken to have assented that the assignee should hold both mortgages with his legal rights unaffected by any outside arrangement between themselves and Crossman. One of these rights would be that any money received from the mortgagor upon the first mortgage should be treated, not as a purchase of the mortgage, but as a payment, so as to enhance the value of his security on the second.. The right of subrogation does not depend on contract, but is merely a creature of equity, and rests wholly upon grounds of natural justice, and is never allowed where it would conflict with the legal or equitable rights of others.. To allow it under the facts stated in the reply would certainly conflict with plaintiff’s legal rights acquired under the second mortgage.
Order reversed.