153 N.W. 972 | N.D. | 1915
Action to quiet title. Plaintiff had judgment. Defendant and respondent appeal, demanding a trial de novo. The facts leading up to this litigation, either undisputed or decided by us, are as follows: “The intervener, John F. White, and his wife, Lizzie N. White, the defendant, were the owners in 1907 of a hotel building in the city of Grand Forks, title standing in the name of both. Owing to some domestic trouble an agreement was entered into between the two
“Appellants’ contention is, first, that the court erred in allowing an amendment to the complaint after the case had been submitted; second, that the evidence is insufficient to support several findings of fact made by the lower court; third, that the conclusion that plaintiff should be subrogated to the several liens that had been canceled by payment is erroneous.”
We will not consider the question of the validity of the $10,000 mortgage, because plaintiff has not appealed, but will devote ourselves to the question of the correctness of the trial court’s judgment as entered. That the mortgage as originally given was void is not, however, conceded by the respondent, but there is material evidence to support the trial court’s conclusion. The application originally taken from the wife and submitted to plaintiff contains a positive statement that the premises were hers; that she was a married woman residing thereon; and that the same was her homestead. Notwithstanding the agreement to separate, there is also ample evidence that the husband returned and resided upon the premises as the head of the family, and there is no dispute that the same have been used ever since by the wife and her children. There is also reason to believe the mortgage given by the son a subterfuge adopted by plaintiff’s agent in an attempt to avoid the homestead feature after the father had refused to sign the papers. With this preliminary statement, we proceed to the questions which we believe are before us.
(1) Appellant insists that it was error to allow the filing of the amended complaint. This question has been fully discussed in the cases of Holler v. Amodt, ante, 11, 153 N. W. 465, and Sheimo v. Norqual, ante, 343, 153 N. W. 470, decided within a few days by this court. Also, Finlayson v. Peterson, 11 N. D. 45, 89 N. W. 855; Anderson v. First Nat. Bank, 5 N. D. 80, 64 N. W. 114; 6 N. D. 497, 72 N. W. 916; Martin v. Luger Furniture Co. 8 N. D. 220, 77 N. W. 1003, and other cases cited in Holler v. Amodt, supra. Section 7482, Comp. Laws 1913, reads: “The court may, before or after judgment, in furtherance of justice and on such terms as may be proper, amend any pleading, process, or proceeding, by adding or striking out the name of any party; or by correcting a mistake in
(2) Under this heading appellant attacks certain findings of fact, five in number, which he claims are not supported by the evidence.
The first three findings challenged relate to the so-called separation and abandonment of the homestead by the husband. The trial court held that the separation agreement had been duly entered into and executed, and that the husband had abandoned the homestead. There is evidence to support those findings, but whether they are correct or not is not material, in view of the conclusion of the trial court, which has been adopted by us, that the mortgage was void. We will not further discuss the proposition. The fourth and fifth findings challenged by appellant relate to fraudulent representations made by Mrs. White to the plaintiff loan company. Upon this point the evidence is conflicting, but we are satisfied that plaintiff’s agent, Hatcher, knew all of the facts and circumstances surrounding the title to the property. We do not, however, believe the findings material. If plaintiff’s right to be subrogated to the rights of the lienors and mortgagors whose claims it paid out of the proceeds of the loan, depended upon bad faith upon Mrs. White’s part, there might be some grounds for complaint. However, a mutual mistake made by plaintiff and Mrs. White furnishes as much reason for subrogation as misrepresentations
(3) The third and last attack upon the judgment challenges plaintiff’s right to be subrogated to the canceled mortgages and liens. Plaintiff insists, first, that the payment by plaintiff of the prior encumbrance was purely voluntary; second, it is made by a party under no obligation at law to make the payment; third, that the debt being paid át debtor’s request only is extinguished; fourth, that there was no agreement that the earlier debts be kept alive. All of those abstract propositions are supported by citations of authority, but we do not believe those principles apply to the case at bar. Subrogation is a branch of equity and is governed by the doctrines thereof. The facts in each case should be searched to determine the rights of the parties and to settle their disputes as fairly and justly as human reason can devise. In the case at bar we have property lawfully mortgaged and encumbered with liens upon which foreclosures are threatened. The husband had attempted to devest himself of title thereto, and for more than a year and a half had absented himself from home. The wife applies to plaintiff for a new lien to take up the outstanding indebtedness. Owing to the confusion in the title, it is deemed advisable to have the mortgage executed by the son. The money was actually disbursed and the property saved from its threatened danger in the utmost good faith upon the part of plaintiff. If we concede that the new mortgage was void because of the lack of the father’s signature, yet good conscience requires that plaintiff be reimbursed for the money used by them in good faith to save the property. The intervener, Mr. White, should not be heard to question this simple act of justice. He executed a separation agreement with his wife, deeded the property to her, left her temporarily at least, and did nothing to prevent the loss of the property upon foreclosure. It is unthinkable that a court of equity should hear him complain, when plaintiff is to be reimbursed from the property which it has saved. Plaintiff was not an intermeddler, stranger, or volunteer in the transaction. Its conduct from beginning to end is above criticism. It was invited by defendant to save her property. At 37 Cyc. 363, it is said: “Subrogation is the substitution of another person in the place of a creditor, so that the person in whose favor it is exercised, succeeds to the right of the creditor in relation to the debt. The doctrine is one of equity and benevolence, and, like contribution and other similar
See also the late case of Beyer v. Investors’ Syndicate, ante, 247, 153 N. W. 476. We fully agree with the conclusions of the trial court that plaintiff should be subrogated to all those encumbrances which he has paid, and in addition should be allowed payments made for taxes and insurance upon the premises, and other expenses in connection with the $10,000 loan. To this end, the trial court should make an accounting and determine the amount due to plaintiff and allow further proceedings not inconsistent with this opinion. Respondent will recover his costs in this appeal. Judgment affirmed.