15 S.D. 134 | S.D. | 1901
Lead Opinion
The facts necessary to a complete understanding all that is presented by this appeal from a judgment dismissing the complaint in an action to reinstate and foreclose a mortgage are chronologically stated in Parrish v. Mahany, 10 S. D. 276, 73 N. W. 97, 66 Am. St. Rep. 733, and again on rehearing, 12 S. D. 278, 81 N. W. 295, 76 Am. St. Rep. 604, and the only essential question of law is whether appellants are entitled to invoke the doctrine of subrogation. On or about August 1, 1885, Butler C. Cunningham, who then owned the premises described in the complaint, sold, and by warranty deed conveyed, the same to the respondent, Anna Wright, subject to certain delinquent taxes and a valid mortgage, given on the 13th day of July, 1881, to secure the payment of a promissory note of even date for $300, executed by William C. Reeves to James Snyder. According to the decisions above mentioned, this deed, though subsequently withdrawn from the office of the register of deeds without the knowledge or consent of the owner, was, in legal effect, duly recorded on the 14th day of April, 1887. Notwithstanding his former complete alienation of the premises, Cunningham executed and delivered another warranty deed on the 2d day of April, 1887, which purports to convey the same property, for a valuable consideration, to the defendant Amos E. Mahany, who
While the foregoing point is conclusive, we will briefly notice another, which goes directly to the groundwork of the action. Before appellants could in any event succeed to the rights of the former lienholders, it would be incumbent upon them to plead and prove that they paid a debt for which they were then at least secondarily liable; and such is not this case in any particular. Bouvier, in defining the word “subrogation,” observes that “a principle which lies at the bottom of the doctrine is that the person seeking it must have paid the debt under grave necessity to save himself a loss. The right is never accorded to a volunteer.” To gratify a desire to make a loan for profit and more effectually secuie such obligation, appellants chose, without the slightest compulsion, to pay the debt of another at a time whep they had no interest at hazard. Clearly, appellants were under no obligation to loan, nor was Mahany authorized to borrow, money with which to pay the Snyder mortgage assumed by Anna Wright, and neither of such intermeddlers, at the time, intended to invoke the doctrine of subrogation or call upon these respondents for reimbursement. Chief Justice Ryan, in Watson v. Wilcox, 39 Wis. 643, 20 Am. Rep. 63, says: “One, who having no interest to protect, voluntarily loans money to a mortgagor for the purpose of satisfying and canceling the mortgage, taking a new mortgage for his own security, cannot have the former mortgage revived, and himseli be subrogated to the rights of the mortgagee therein. * * * We know of no case that has ever carried the doctrine of subrogation so far as to hold that a mere loan of of money, for the purpose of enabling the borrower to pay a debt,
Viewed in the light of the principles announced, and fortified by all the authorities, we see nothing in this case within the reach of equity, and the judgment appealed from is affirmed.
Concurrence Opinion
I concur only in the views expressed by the presiding judge concerning the statute of limitations.