*1 42 Connor Investment
Syllabus been the culvert; have struction of could in no sense that the dan- that cause It shows proximate catastrophe. created as to have was not character of such ger exceptional to guard an the railroad company on obligation part side of it; opposite it that was located on pool shows where place, fill mill in an isolated a from the high village, location, a it lacked the allurement conspicuous caused who to those and where the allurement was presented only was not boy out the attraction. deliberately sought at least to' travel but had locality, resident of the immediate fence, to land, and mile, get over over cultivated it to fence impossible been It would have practically pool. amusement. intent on such of boys the depredations against a reservoir which nature from different its It is essentially The testimony at all points. is of uniform dangerous depth 5 in depth, from 6 inches to feet varied that the pool shows accustomed that small and, boys knew if proprietor there, have that naturally he could presumed to bathe told Henry’s companion do what young would boys smaller shallow water. in the him to do—stay this Court is that judgment The judgment reversed, be remanded the case Court Circuit direct a verdict for the Court, instructions with to that defendant. Bowman, Rice, Shipp, Mr. Fraser Peu- Justice concur. Circuit Judges, McIvER,
riEoy, v.CO. CONNOR ET AL. INVESTMENT PRUDENTIAL 539) E. (112 S. Directing Mortgages—Foreclosure Distribution is Not Conductive' Arising Rendition.—A judgment Its After foreclos- as to Issues manner of directing pro- distribution of the ing a payment, as to the adjudicaba not res from the the sale is ceeds land, decreed be liens the- where proceeds, plaintiff,, claimed an landowner Prudential, Co. Term, since the decree rendered procured foreclosure
mortgagor judgment debtor and that plain- pretense tiff only a judgments so that had been extin- guished. Richland, MclvER, March, Before J., 1920. Reversed and remanded.
Action the Prudential Investment Company against Connor, R. Smoak, others, M. for the fore- Jr., Julia closure of-a From an order the Master mortgage. requiring mort- surplus proceeds of sale above the gages plaintiff of which had been assignee land, decreed to be Smoak, Jr., liens M. appeals. Connor, Messrs. M. S. F. D. Jennings Henry A. McFaddin, cite: Matter was appellant, the Mas- before ct,nd ter on order original to a con- reference, proceeding of clusion with the estops testimony plaintiff denying from C., jurisdiction the Master: 81 264. S. Error Judge of of Melver to an pass order which withdrew it the Mas- C., 198; C.,.452. ter: 69 39 Judgment may S. S. amend- ed, the case even according rights sale: of after C., 155. Where there has been a S. conditions: change of 97 34. cannot Corporation deny responsibility acts its chosen its 103 administer S. officers of affairs: C., 403. Nor can the use name controlling manager of L,. 1 R. A. corporation escape personal liability: (N. S.), 182-3, 176. Corporation man and consisting his family of does stand in an innocent third position 59 party: Ohio, 316. Third absolute party making payment judg- ment absence with understanding creditor that alive, is to be kept 2 Free- judgment satisfied: man 468. Plaintiff had no than Judgts., higher equity Sec. C., 326. C., A. J. Bethea: 68 took 64 Merger place: S. S. C., 234; h., 193; 234; 60 15 R. 47 C., 305; C. S. Sec. S. C., 106 465. cannot waive company S. a right Officer of C., 10 in his own 298. company S. order is behalf: If
44 C.
Opinion S. Court sustained, appellant would a judgment against be entitled to to en- Bethea by way subrogation to right R., to be R. C. made said Bethea: Sec. force R., 234; 1313, 1314; C., 25 R. C. 439. Secs. S. Messrs. W. T. for respond- don and Gray Aycock, N. W. ent.
March Mr. opinion Court was delivered Justice
Fraser. case,
There are a state great many this parties the interest of each would confusion and ob- party produce *3 scure involved. facts will stated Only the such questions as are to understand the necessary questions.
The took title a certain lot of to appellant Smoak land liens the of Columbia. This land was to the city of certain The exe- judgments. mortgage mortgages A. Bethea was to Prudential cuted Investment assigned Mr. Bethea the of this was president Company. company the and .also owned of the stock. large majority corporate Bethea. The The set were up judgments judgments against fore- its The of mortgage. judgment foreclosed plaintiff the for sale of the mortgaged closure provided premises, debt, and out of the the surplus payment taken, After the decree was payment judgments. Bethea, to act for his indi- plaintiff, gave Mr. the claiming took the creditors an judgment vidual checks to assign- the The of ment of the judgments plaintiff corporation. the the of objected payment judgments Smoak appellant that Mr. Bethea on the had out of the Surplus, ground the his of with own judgments the assignment money, and the were was the judgments paid, that the of The owner the equity mere appellant pretense. freed from claimed the the liens redemption surplus had been the claims paid by of the judgments, debtor, Mr. Bethea. judgment October Term, case, the The Master took the attended testimony the sides; plaintiff for both the attorneys attorneys but Court of the applied withdrew from the references Master to the pay Common Pleas for ian order requiring judgments. judgments plaintiff, assignee The the order on ground Judge granted trial res inasmuch as the adjudicata, payment matter was of foreclosure. judgment had been decreed by judgments time at this is: The for decision question proper only adjudicata? the matter res Was facts, is question very unnecessary
Stripped since the judgment one. Conditions simple changed conditions there had been a change was rendered. That both admitted sides. since rendered judgment provided foreclosure could have The because the to the plaintiff, judgments The or- not .at that time own judgments. did plaintiff der from) (appealed fact that there was a valid assign- necessarily
included If the Court had the plaintiff. ment of the judgments valid, it had also declare the assignments jurisdiction invalid. the assignments to declare the jurisdiction invalid because assignments appellant claimed *4 money own with his paid judgments Mr. Bethea him- Mr. Bethea was practically that the and assignment the money debtor. Was judgment Mr. self. only Was the money? own Mr. Bethea’s decides from practically The order appealed pretensive? but does so on adversely that appellant, question at and is not adjudicata, the matter is res that theory at all. to decide question liberty reversed, the case remanded
The judgment question validity to try Common Pleas Court of to the of the judgments respondent. of the assignments Gary and Mr. Watts Mr. Chiee Justices Justice concur. Cothran Rehearing-
On Petition for case deter- Mr. in this The opinion Fraser: Justice mines no the judg- ultimate holds that It rights. simply ' ment for foreclosure not sale is res adjudicata decree, that things have the date of may since happened of sub- case was remanded to determine the effect' transactions, sequent and no has been made as to finding their transactions or effect. is therefore dismissed. petition Gary Mr. and Mr. con- Watts Ci-iiee Justice Justice cur. : I think
Mr. do not it made that a Cothran Justice of difference whether the particle the as- money paid signments was furnished Bethea or not, and for that reason think that the judgment Circuit should affirmed. on See this opinion pe- .Court tition. The opinion of the Court by
Mr. Cothran: Justice concurred jn by the other members Fraser, Mr. Justice Court, filed on this March' 1921. Thereafter filed a respondent petition and secured rehearing of remittitur. stay I have over this record and again have become gone con- vinced a-material issue in the case been has overlooked Court, as I endeavor show. I shall therefore with- in draw concurrence filed my opinion and favor a re- hearing. is but due to the who wrote
It and to opinion, Justice it, others who including concurred myself, say the matter which has controlled my was not counsel I respondent, so far as am in- suggested ; fact, I have been furnished formed with any printed them, indeed if filed. any was brief contest over balance of $2,912.45, *5 remaining ^The foreclosure, hands, after Master’s sale and pay- 47 Term, 1920 42J ment of two to be first and were conceded mortgages second liens upon property.
The plaintiff claims said balance as the of cer- assignee tain judgments which are decreed be liens upon junior property, to said and directed the de- by mortgages, cree to paid out of the of sale. proceeds defendant, M. Smoak, the owner of Jr., legal title' at the time sale, claims said balance that, after the ground decree foreclosure and before thereunder, sale virtue of which the judgments, by 0 plaintiff balance, claims the in fact paid off by debtor; that said liens discharged judgments, effect of which was to create a sur- entitled; to which plus he as the owner of the land was to the these judgments were pretensive.
A determination of the issues involved in this re- appeal quires review of a maze of business transactions and judi- cial proceedings. 2, 1913,
Prior September defendant Andrew J. Bethea was the owner of a certain tract of land near Gads- den, C., S. containing acres. On that he executed day his note a tract, mortgage secured to B. Mc- $3,500, Laughlin, for 1, 1916, payable January with inter- cent, est .at per (whether date or is not maturity stated), the interest upon which to have been appears toup 2, 1916, September from which date by agreement rate of interest was increased to 8 cent. per December note, executed his secured a second tract, upon this to Ada B. McLaugh- lin, $1,300, date and maturity rate of interest of which are not -in the record stated for appeal. This mort- gage subsequently to the assigned Commercial Bank of it, Columbia and date, at a later prior the sale, Prudential Investment plaintiff, Company. *6 v. Connor Co. Prudential Investment
On 27, entered 1916, judg- the Bank of On Columbia July interest from $2,072, ment for “against A: Bethea with J. 17, 1916. July B. 1916, the tract to 7,
On October Bethea conveyed J. of the Mc- the latter Stinespring, assuming payment to the land Laughlin taking mortgages, Columbia, stated, Bank which above was judgment a lien it. 1916, T. October judgment
On W. Berry entered A. $918, for from against Bethea with September interest J. 20, 1916. 23, 1916, Columbia & Trust Com-
On October Savings A. for entered Bethea with against pany $750 J. interest from that date. 31, 1917, B. the tract conveyed March
On Stinespring J. this transaction R. Connor. It does appear'in Julia the two R. assumed the Mc- Connor Julia which had been assumed by Laughlin Stinespring, mortgages to, the three hereinbefore referred or of judgments though to her sub- the land at the time conveyance liens two and of the judgment mortgages of said ject $2,072; favor the Bank of Columbia Bank $918, and Columbia & Savings of T. W. Berry $750, been entered subsequently Trust Co. having B. dates Stinespring, conveyance A. J. J. 23, 1916, 7, 1916, October October being, respectively, land. become did not liens 21, 1918, the note «about January On or 2, 1913, dated McLaughlin September A. Bethea B. J. J. 1, 1916, $3,500, for value assigned due January Investment Company. plaintiff, 6, 1918, instituted this action for March $3,500 McLaughlin mortgage foreclosure it stated, on or about been, January ¡assigned defendant were the several The parties alleged pur- Prudentiae Term, 1920 and judgment
chasers and by mortgage claimants liens A. Bethea. Columbia answered Bank of defendant Commercial McLaughlin the second its claim as setting up assignee *7 $1,300. for its up The Bank of Columbia answered setting defendant $2,072. for judgment his judg-
The T. answered setting up Berry W. defendant ment for $918. Trust Bank Com Columbia & Savings defendant
The for answered its setting up1 judgment pany $750. Connor, the defendant, original R. answered Julia land, not an- the but did ownership
complaint setting up reason, will appear, the for the swer amended complaint the the land to de- that she in the meantime conveyed had Smoak, M. fendant Jr. the Smoak, neither ori- M. answered
The defendant Jr., that, nor amended It is assumed hav- the complaint. ginal the R. Connor after com- the land ing bought Julia suit, thereto. party the not originally mencement of nor the neither the original The other defendants answered complaint. amended 1918, 12, R. Connor the tract conveyed
On October Julia it Smoak, appear to M. In this does not transaction Jr. Smoak, of the McLaughlin assumed the payment Jr.,
M. been or .assumed mortgages, Stinespring, to, hereinbefore referred three judgments though to him was at time of conveyance land of the two the liens mortgages $2,072; the'judgments Berry
Bank of Columbia Trust Columbia Bank & Savings Company hav- stated, .above liens upon the reasons become ing, land. 1, 1918, the case was referred to the November Mas-
On fact. hear and determine all issues of law and ter to C—120. 4 S. Co',
50 . On ascertain- the Master May filed-his report, the amount ing Prudential Investment Company due due $3,500 upon the amount McLaughlin mortgage mort- the Commercial Bank the second McLaughlin sec- $1,300; these the first and gage respectively being ond liens He also property. reported: said
“That set defendants up' by cause are as de- now constitute liens on premises their dates scribed in the complaint according respective of entry.”
In remark the Master over- evidently we passing, Columbia that the Berry looked the fact judgment and entered Trust Bank and Company judgment Savings B. A. Bethea to subsequently conveyance J. that reason liens upon and were not for Stinespring *8 however, not Smoak, excepted land. having defendant The concluded thereby. said report, the Mas- 9, 1919, there no On being exceptions June Townsend, Hon. H. Circuit W. ter’s report, Judge, He confirmed the Master’s of foreclosure. decree passed due, sets out the amounts respectively, report; in favor of judgment renders mortgages; first and second B. against Investment Company Prudential Stine- J. 8, 1919; with interest from ren- $4,428.81 May spring $1,632.27 in of Bank ders favor Commercial judgment 8, 1919, B. May against with interest Stinespring J. Bethea; in renders of A. judgment favor A. J. J. B. for such sum as Bethea Stinespring against J. to’ account on might required second Bank; to Commercial McLaughlin or- mortgage, assigned 1919; sale and directs ders in August, .application costs, taxes, after as proceeds, expenses, follows: claim of To Prudential Investment mortgage
(1) of the first McLaughlin as Company assignee mortgage $3,500. Investment Term, 1920 Bank
(2) To the claim of Commercial $1,300. assignee second McLaughlin mortgage To the (3) in order of their judgments proved priority as fixed by the Master’s report.
(4) if to be disbursed surplus, any, according law.
Before the 1919, had, sale ordered for August, transactions took following place: 11, 1919,
On Columbia Bank July & Trust Com- Savings Dreher in pany assigned E. S. one-fourth interest a cer- tain judgment obtained itby Andrew Bethea and against J.
others. Dreher,
On the same day, consideration E. S. $933.71, what had been him assigned assigned Columbia Bank & Trust to the Savings Company plaintiff, Frudential Investment Company. 1919j
On 12, July Berry, T. consideration W. $1,093, to the assigned plaintiff, Prudential Company, held him for judgment A. against $918 J. Bethea. Bank Columbia, July in consideration of
$2,534.80, to the assigned plaintiff, Prudential Investment $2,072 Company, the held it A. against Bethea. sale,
Prior to the when does exactly the Com- appear, mercial Bank assigned plaintiff, Prudential Invest- *9 ment the second Company, $1,300, of McLaughlin mortgage, which had been Ada assigned by McLaughlin to it. 4, 1919,
The had on sale was August the tract was and $8,500. A. Bethea for bid off He by thereafter assigned J. bid to Prudential Investment plaintiff, his which Company, terms the and with of sale received complied from Mas- the 14, deed or about’’ ter a “on The his on sales Master report filed December after showed that the-payment which costs and the two Co. v. Connor
On yvas the there on hand sum of McLaughlin mortgages, Court, the order the $2,912.45, he which held Smoak, Jr., on him by account a notice served M. upon That 18, 1919, on tenor: September following A. land; the against was owner of the that the judgments J. of sale and the decree Bethea at the time of outstanding had since that sale directed be out of the paid proceeds such Bethea; pay- A. that the effect of date been paid J. and that liens of the the discharge judgments; ment-was to the costs sale, after paying the surplus proceeds liens, the first and second re- and which were mortgages him, the Master over spectively, should owner the the sold. land
Thereafter, 6, 1920,- the for attorneys on February and for before attorneys appeared plaintiff Smoak made claim to bal- Master. attorneys Smoak $2,912.45 hands ance of in Master’s upon grounds the Master in the notice had been served upon stated 18, 1919. The for the moved attorney plaintiff September that the decree di- to dismiss hearing ground that, there having of the judgments, rected thq- or to report either Master’s no been exceptions The Master over- decree, adjudicata. the matter res motion, reference con- ruled the that the holding should or- the Circuit Judge order enlighten passing tinue balance. for the said ders distribution of taken to show that the testimony Thereupon tending had been the three judgments assigned with which money was furnished A. Prudential Investment Company J. funds, out own assignments pre- of his in the and for benefit tensive, made interest solely Bethea. A. 12, 1920, served attorneys March Smoak, Master, attorneys a notice upon the Court the report the- Master to testimony requesting *10 Co. v. Connor Term, 1920 had, taken before him making and all without proceedings order re- report, upon that there had been no ground balance, to him ferring the matter of to said right Smoak’s and end the all reference and have matters con- electing nected therewith Court. passed upon by
On Miarch 1920, the for the attorneys plaintiff served a notice Smoak, March attorneys on and 1920, they would move the Court for an order requiring the Master' to over to them the said balance.
On the same 15, 1920, March day, Master filed a re- the. Court, port taken before submitting testimony him, 12, 1920, the notice dated reciting March asking ‘ the Court’s as to instructions disbursement the balance. 22, 1920,
On March attorneys served a Smoak reply attorneys notice dated plaintiff, 12, 1920, March that the contending references held Master were of the by agreement under the attorneys, ori- reference, order of ginal save of the new expense reference, order of the withdrawal protesting against of the matter from the Master. 23, 1920,
On March the matter came before up Judge Mclver in open Court. He a decree signed that the holding entire concluded, matter was as res adjudicate pre- orders Court, vious motion, granted plaintiff’s directed the balance the assignee three judgments.
From this decree the defendant has Smoak appealed makes these practically his grounds by exceptions: in
(1) Error case from withdrawing the Master. (2) holding Error rights defendant concluded, Smoak as res adjudicata, previous the Court. orders of defendant, that the
(3) holding Error Smoak, was entitled no relief under rule 54 of the Circuit Court. in not
(4) holding Error the judgments had been *11 Prudential Co. Connor Investment v. A. Bethea paid by the decree of after foreclosure J. sale, before and the effect thereof was to discharge defendant’s liens, land from such him the thus to> entitling balance on hand. in
(5) not Error that the land holding purchase by plaintiff and the to it of the assignment constituted a and satisfaction of the merger judgments. event, in not
(6) Error in that should holding, any be the defendant was upheld entitled to A. Bethea to the extent of judgment against of said balance to the application judgments.
I think that if the had made respondent timely objection to the withdrawal the issue from the Master and and decision of it hearing Circuit should by Judge, he contention; have prevailed this but it appears that the matter came Mclver, before up Judge “upon of' report the Master instructions motion of asking that certain plaintiff’s funds in the attorneys hands asking Master be over plaintiff.” report was which had been accompanied by taken testimony and which-had been “closed” No other for argument. to be testimony desired the defendant. appeared The' by Circuit his decree states that “the Judge fully case me, before both sides argued represented coun- being sel.” It that does not objected the defendant appear at the time of this or that proceeding the matter suggested sent back tó the Master for his decision. He took the chances of favorable decision Mclver and is not Judge now in a claim position to that he did not have authority to what the defendant do consented that he should do.
I no hesitation in saying although have Srnoak had not filed an and therefore answer not in a position decree, or as he except report held the title to legal land, he not lose the did to come in right after the sale in reference be heard to the distribution of the pro- Term, 1920 the time of between ceeds of sale in a matter happening could have therefore not the decree land the sale and which he was called been decree. When concluded in the to answer there were no allegations complaint He have contested the could traverse. honestly might entered the conveyance liens after the judgments so, and of course but he do *12 Stinespring, did is to be bound decree these by judgments the directing paid. But as to- after the decree which matters occurring might I affect the think the Court the distribution of proceeds, him I therefore that the was under rule think open defendant error in that the Circuit was in Judge holding the the orders of Court. precluded by previous however, I think that the may whole controversy, ended a determination of by this.question: that which the of assignments
Assuming money by A. were was furnished judgments procured funds, the assignments out of his personal to-the were do these facts entitle pretensive, Smoak balance of the of sale? proceeds
If this question should be in answered the negative, it would be useless to remand case for the purpose try- which, an issue if determined in ing favor, Smoak’s would afford him If affirmative, no relief. the case should be remanded for issue, the trial of- that has not been which either the Master or the passed upon Circuit Judge. discussion, therefore, In I will this assume as a fact that Bethea furnished out of his own funds the with money which these From assignments procured. the testi- it, I have little mony doubt or of the fact that the as- made to the Prudential signments Investment Company transactions, were colorable into entered from mistaken idea that Bethea could not personally hold assignments of which had judgments been obtained himself. I against use the term “colorable” all not at in an offensive sense, for I Co.
see in the reflect nothing integ- transáctions Bethea; for, show, he had a I shall endeavor to rity take an perfect these and either right off or to himself no to a friend or an assignment assignment all, at that in judg- these events any remained open ments for his procure- protection. ment Bethea of the to Prudential Invest- assignments ment conclusive of a essential element in Company very matters, such he not did intend judg- discharge ments. nutshell,
In a : Bethea situation was this owner' land; the liens of subject mortgages it became then what is he owned generally, though judgments; sense, accurate termed the strictly “equity redemp- or, ; tion” common termi- he land conveys following which is the interest which nology, equity redemption, liens; in the land purchaser buys *13 sell, to this so-called of equity redemption, what Bethea had less; to more, no reference the con- subsequent no omitting him after off the by veyances, conveyance pays him is: Does this entitle to be liens; the question judgment creditors, or of the are the rights subrogated extinguished? a of 'the creation of is subrogation essentially right justice. to do substantial which delights equity, of Court a state of facts depends upon given Its applicability based parties, between justice substantial distribution a by It is which equity per- rules. well-established debt, a liable for secondarily paying is son who of the creditor whose place the law assumes debt, rem- entitled to the securities and becomes paid, debt is his relief the debtor against pri- for the creditor edies Or 707. Ed.), § Story Eq. (14th 2 liable. marily Jur. in the : author same action tersely expressed more into for the existence called purpose is an equity “It 57 Co. v. Term, 1920 liable, a but who has paid making secondarily party debt, creditors the benefit of securities which the to reap any debtor, the use of hold against principal may made then be whole.” which paying may party to include has become broad “Indeed doctrine enough * * * who, volunteer or in- not a person every being in termeddler, a or an obligation debt pays discharges or conscience to be dis- justice, equity ought paid and good 99 Am. note. another.” Rep., St. charged by * * * “is used Subrogation prevent [loss to?] himself, who, protect with clean hands to one person, acting another, a but lifts burden incidentally necessarily * * * he en- him aid which cannot justice giving loss in without such person against joy, indemnifying Wis., 368, W., 95 N. .transaction.” Oisefos, Larson an in real “And interest person when having property lien thereon in order to satisfy protect pays money interest, he is subrogated rights entitled incumbrancer, lien, as an considered assignee . lien justice, although substantial purpose effecting record.” note. Rep., St. Am. discharged claiming subrogation
It that the party right follows must establish: he the debt. That
(1) volunteer, but had a direct in- he That (2) or lien. debt terest the discharge liable the debt or That (3) secondarily *14 lien. the discharge will be done the other injustice party That no
(4) allowance equity. the defendant is that as- The contention of Smoak that was pretensive, money actually were signments hence must Bethea; it be that Bethea assumed furnished which meets the first requirement. the judgments, off S. C. That equally in the matter is was not volunteer debt; it; clear. It he still liable for his originally his credit his obligations; depended upon other real which upon estate these liens; and it that the dissolution may naturally suggested him of these liens of them by was essential to conveyance if occasion should arise.
If land the condition Bethea had not conveyed assume the debts purchaser mortgage would liens, he have subject take the land would but, liens; I shall liable these primarily remained authorities, where the endeavor to sustain by purchaser liens takes property either assumes the or outstanding then is becomes sufficient), cum onere (either property seller, liable, and the as between the purchaser primarily liable for the debts. latter secondarily becoming 1205, it is said: Eq. In 3 Jur., Pom. § a deed which states conveys mortgagor “Where is to a certain subject the conveyance specified simply effect, the takes the land to that grantee or words mortgage, As himself and the lien. between burdened with the is the fund out of primary land grantor-mortgagor, claim should be he cannot paid; debt mortgage and thus off mortgage that the should mortgagor however, not, become land. He does person- exonerate debt, but the remains mortgagor liable for the mortgage ally a fore- deficiency liable for any arising personally A who thus takes a con- of the land. grantee sale closure presumed have included to a mortgage veyance not, and is there- in the purchase price, debt the mortgage fore, dispute validity mortgage; permitted as one in the who he is same position expressly this respect the mortgage.” assumes Ed.), it is (6th on said: Mortgages §
1In Jones his own purchases or on pays “If a mortgagor *15 59 Connor Investment Prudential Term, 1920 the pur- to subject mortgage, land that he has sold a of the of the consideration chaser has agreed part to as pay sale, course, is, but unavailing; the note of rendered bond or for the security the become the principal mortgage having an debt, taking of the the without mortgagor, payment to to be subrogated is entitled of the mortgage, assignment land, he has out the what this and to be security, repaid same applies the debt. The principle paid mortgage contracts to the an of redemption where owner of equity the but afterwards pays sell the land to subject mortgage, it as against pur- and has mortgage discharged the mort- rights to : The owner subrogated chaser gagee.” he redemption has sold his equity
“After a mortgagor and take third any person has same right purchase an of mortgage, prior subrogated rights incumbrance is entitled to incumbrance.” the holder such differ- deed of covenants in the having
“In the absence that the effect, it is grantee ent presumed actually debt, that it is his so less of the land the mortgage value to the certainly off mortgage,” duty equitable 190, note sale. 3 Pom. Eq. Jur., p extent of the proceeds Inch, Hardin, v. Shuler citing the trans- case is whether
“The principal question note, mortgage and the assignment fer of the subject had been sold after premises mortgagor, original law a discharge constituted mortgage, the prop- could not be enforced so it against mortgage, clear that not. When they think it is very We did erty. mortgage, was sold estate" land, the grantee although charge upon left as primary liable for it it. assuming herself personally did not make notej maker of the mortgage who was The grantor, in payment property applied have the mortgaged entitled Co. *16 an taken interest, have her she might it. To own protect debt, and enforce of the mortgage assignment if foreclosure, ias she was as effectually mortgage by 115; Mass., 55 175 Pratt v. maker of the note.” Buckley, E., 889. N. 964, Pac., Or., 183, 162 Hunter, prac 83
In v. Fogarty a owner of was decided. The question tically precise con him executed a mortgage by tract of land covered by off He subsequently paid to the mortgage. it subject veyed for his to a third person had it assigned the mortgage and sub entitled to be held that he The Court protection. to enforce the mortgagee to the rights rogated 1205; § 27 Ed.), 3 Pom. (3rd Eq. mortgage, quoting Jur. 861a; Buck v. 1329; 1 Pratt Mortg. (6th Ed.), Jones, Cyc., E., 889; Parker, 4 Pick. 115, Barker v. Mass., 55 N. 175 ley, W., Co., Minn., 185, 36 30 N. 505; Baker v. Loan (Mass.), Stillman, 126; 21 v. 464; v. N. Girdine Eq., Stillman Minn., 417, W., 91; 43 N. v. 41 Kay Castlebury, Menage, 618, W., 645. The Ark., 139 Court declares: 99 S. Donald, to “The transfer as trustee mortgage it. did not The land at that time owned Healy, satisfy and the a incumbrance was valid mortgage party, third by stood in the situation of a on the thereon. Healy surety note, and in his own interest credit protect order * * * same the debt and have the could assigned benefit and for his own have the en- trustee mortgage a foreclosure as forced effectually though by note. maker of the Harris on not the Subrogation, § had no title to that of the land part then in dispute. Healy therefore, did not The with merge mortgage, legal title.” Hidemark, 70 Minn., W.,
In 73 N. Rogers of land the owner covered executed him mortgages another subject it to conveyed mortgages. Court held: Co. Term,
“The lot been sold defendants already Myers, circumstances, it these subject both Under mortgages. fund became the f'or the primary [the land] in- incumbrance, the mortgage on mortgage paying will entitled to debtedness defendants be subrogated under the plaintiff’s rights mortgage.” 861a, In 1 it is said: Jones, (6th Ed.), Mortg. § “If the takes an mortgagor
after have been sold mortgage, premises *17 be the is not so that it cannot thereby discharged mortgage enforced the estate was the ‘When sold property. against as a primary to the the was left subject mortgage mortgage, land, did the not make the although grantee charge for it it. assuming grantor herself liable by personally note, to was the maker of the was entitled who mortgage of To in it. the payment have mortgaged property applied an of take her interest she might own protect debt, a enforce the mortgage by the and the mortgage maker the as if she not the of foreclosure as was effectively note.” is property an of in redemption mortgaged equity
“Where
debt
a
other than the
secured
debt
execution
sold under
in
the estate sold
the
the
pur-
the
vests
sale
by
mortgage,
debt. But
of the
subject
mortgage
chaser
land,
interest
the
hav-
cannot hold the entire
in
the purchaser
if
of the
of
equity
the value
redemption,
only
ing paid
from
the
other
orig-
debt is satisfied
property
the mortgage
will be
redemption
the
subrogated
holder of
equity
inal
him
the
to enable
to indemnify
mortgagee
to the rights
37
the
453.
Cyc.,
out of
mortgaged premises.”
himself
incumbered
levied on
mortgage
“Real estate
The land
creditor.
advertised
appraised,
a to
in
the
the mortgage,
subject
plain-
bid
sold
Held,
a nominal sum.
lat-
the execution
tiff in
could not
redemption
ter,
bought
equity
only,
having
62
Co. v. Connor
Prudential'Investment
the amount
if
subrogated to
rights
mortgagee
from other
debt
be collected
mortgage
prop
should
Pac.,
Hutchison,
v.
erty
Kimball
mortgagor.”
Kan., 191;
Jones,
v.
Id.
Myers
an
“Where
in
equity
redemption mortgaged property
*
* *
execution,
under
is
and if
sold
the mortgage
is
debt
satisfied
other
holder of
property,
original
equity
will be
redemption
subrogated
rights
him
to enable
himself out of
mortgagee,
to indemnify
Adm’rs,
Funk
mortgaged
premises.
McReynolds’
3,
“A grantee who takes conveyance mortgage is in have included debt presumed pur- the mortgage price, chase and is not permitted therefore dispute validity of the 3 Pom. mortgage.” Eq, Jur.
“While there no clause various mak conveyances ing debt, liable for the there appellee personally is' a clause that stated, we have showing they purchased debt, property subject and therefore are or they defeat the oppose rights of position incumbrance, one holds who either prior through rights *18 of subrogation byor a thereof.” purchase straightout Kay Ark., 618, W., Castlebury, 99 139 S. 645.
Where has sold his mortgagor equity redemption to the lien and “he has the mortgage, same as right third take an to and person purchase of the any assignment payment prior incumbrance mortgage, upon to the and thereof holder would be entitled to be subrogated his and substituted his as rights place respects land.” Minn, 417, v. 41 W, 43 ; Girdine N. Menage, 91 Baker v. Minn., Co., 185, W., 464; 36 N. Guaranty 30 27 Cyc., 1329. “After a his has sold equity of mortgagor redemption mortgaged premises, grantee subject to taking or or it, after mortgage assuming or it has agreeing execution, been sold on such mortgagor take an as- may 63 v. Co. Connor Term, 1920 it, of the signment without and hold mortgage discharging 1325, it as a valid lien 27 Cyc., property.” citing Indiana, Maine, Massachusetts, cases from Michigan, Minnesota, Missouri, New New York. Jersey,
In Mass., 115, Pratt E., 175 N. Buckley, 55 is: syllabus
“The owner of to the mortgaged# land,^ selling subject debt, mortgage, liable for the remaining personally take an may of the assignment and foreclose to mortgage, herself; protect and such does not as operate discharge the mortgage.”
In Girdine v. Minn., 417, W., 41 Menage, N. is:
syllabus deed of incumbered receives a lands a grantee “Where from the cove- excepted which is expressly by mortgage, nants, is, in the absence of evidence the presumption to the lien of the land is taken subject that the contrary, and, valid; the lien thereof respects if as mortgage, seller, and not land, it of the purchaser, duty case, In such after the the same. mortgagor to discharge the same as he has right sold the equity redemption, has and take an assignment third any purchase person of a incumbrance to mortgage, prior upon payment his be entitled subrogated holder thereof he would the land.” in his respects place substituted rights, debt, his it is not essential to one “When mortgage pays that' in the mortgagee, to be substituted place right intention at the time of the he have an avowed for his an intention to alive protection; keep mortgage will be effect, to his advantage, presumed.” being Am. St. Rep., and was intended fact that the paid,
“The *19 immaterial; will it alive as keep> is to be paid, long equity Am. parties require.” Rep., St. rights substantial of the case question justice Upon Co. v. Connor S. C.—42] By I opinions. do not think that there oan be two Bethea a to simple allowance right subrogation will act of is done him and defendant Smoak justice to for. have received all he bargained land and been decreed liens judgments have All that Bethea ordered to be next after the mortgages. paid to allow sale had to do sit proceed. was to steady no as to the There would then have been question application By of this balance to the three an judgments. arrange- Bethea, who ment which party, to was not Smoak land of these under no to relieve the obligation Smoak do, his them as he took judgments, right up, own protection. his open, the land with purchased eyes knowing
Smoak with- the and the mortgages judg- that it was incumbered' he deducted ments. It that in the must purchase assumed purchase from the amount of these incumbr'ances price he He all that land bought, he was has willing pay. liens, is all that he is entitled to. To these and it subject takes nothing allow Bethea the right subrogation no If the had been pay- sale allowed proceed Smoak. had been ment negotiated, or of if the complain have had pro- would nothing to Smoak it would have judgments; ceeds had to these been applied his rights expectations. with harmony been entirely in which a transaction changed by this condition When insist and had no- legal upon, he not interested right him for -a to allow con- would be unconscionable nominal it he has not and sideration to where where “reap sowed gather he has not strewed.” if Bethea this
It be different transaction had would an unfair over All that Bethea advantage secured Smoak. has out money is the that he recover would for, all that land bargained getting Smoak liens, To would lose deny the of sub- nothing. right *20 McAlister Medlock Term, 1921 Bethea him make to is to rogation require present $3,000 $3,000 more Smoak and to allow to get Smoak than he bought. sustained,
If these views should be question merger and the for the this of Bethea amount of liability Smoak in balance fade from the case. There could be no merger Bethea, for he did not title when the own the There could be in the Prudential no assigned. merger defendant, for the contention of the Company, which we is that it was Bethea’s funds. personal uphold, if would owe balance clearly nothing Smoak this to him. properly belonged
MEDLOCK McALISTER (112 436) E.S. Oper-
Í. Tenant—Landlord Not Common Carrier Landlord Care__A ating Only Ordinary Tenant and Owes Elevator, injured landlord whose reason of a defective tenant elevator, negligently operated pas- a common was not carrier hire, degree sengers plaintiff highest and hence did not owe care, care, ordinary consequence but and reasonable relation of landlord tenant.
2. Properly Landlord and Tenant—Nonsuit Where There Refused, Negligence.—In Tending Allegations Testimony to Prove to a tenant injuries neg- an action reason of defective and elevator, ligently operated testimony where there tending
prove allegations negligence, properly his the Court refused to defendant, grant though a nonsuit or direct a verdict for there was contrary; weight evidence testimony being for the jury- Greenville,
Before J., 1921. Affirmed. April, Prince, B. Medlock Action by against Charles McAlister. defendant Judgment appeals. liability of landlord for servant injury Note: of tenant
elevator, A., 1916, note in L. F. see R.