Robinson v. Sullivan

59 So. 846 | Miss. | 1912

Smith, C. J.,

delivered the opinion of the court.

In July, 1906, Mr. J. R. Sullivan died intestate, leaving as his heirs his wife, who is now Mrs. M. A. Brown, •and two children, Robert and Otero Sullivan, appellees herein. Prior to his death he had purchased from J. W. Persons the land here in controversy for the sum of one thousand, six hundred and twenty-seven dollars and twenty-one • cents, payable in installments of twenty-five -dollars per month. At the time of his death practically nothing had been paid on the purchase money of this land, which, including interest then due, amounted to about one thousand, eight hundred dollars. He left an insurance policy on his life for the sum of two thousand dollars, payable to his wife, which was collected by her after his death. The notes executed by Sullivan covering the purchase money of this land were by Persons assigned to the Merchants’ Bank, of Jackson, Miss. At the death of her husband Mrs. Sullivan was advised by Mr. Persons, who seems to have been a friend of the family, to invest this insurance money in the purchase of a home. They decided that it would be best for her to purchase the property in controversy; and both of them were under the impression that, if she paid the notes executed by her husband therefor, Persons could then execute to her a deed to the land, and she would thereby acquire title thereto, and this course was in good faith pursued. Mrs. Sullivan paid the bank. It canceled the vendor’s lien, which had been retained by Persons to secure the payment of the notes, and Persons executed to her a deed to the land. Some time afterwards Mrs. Sullivan, who had then become and is now Mrs. Brown, executed a deed of trust on the property to W. C. Wells, Jr., trustee, to secure an indebtedness of six hundred dollars to E. M. S. Barrett. Some time after the execution of this deed of trust, Mrs. Brown borrowed the sum of seven hundred dollars from the Century Banking Conupany, and executed to it a deed of trust on the- property to secure the payment of the money borrowed. Failing to pay the debt secured by this last-named deed of trust on the maturity thereof, it was foreclosed, and the property bought in by W. A. Sessions, who assumed the indebtedness due E. M. S. Barrett and secured by the first deed of trust. Afterwards .this property was sold by Sessions to appellant, Robertson, who also assumed the indebtedness due Barrett.

All the parties to these instruments thought that Mrs. Brown was the owner of the land. She herself thought so, and seems to have acted in perfect good faith in the matter. No question of her children’s interest in the land arose during the' negotiations leading up to the execution of these instruments. The Century Banking-Company had an abstract of title of the property made before lending Mrs. Brown the money; but the abstractor failed to discover the deed from Persons to J. R. Sullivan, the former husband of Mrs. Brown, although this-deed was duly acknowledged and recorded. After appellant became the owner of this land, Mrs. Brown discovered that she did not have the full legal title thereto that she only owned a one-third interest therein, the other two-thirds being owned by her children, Robert and Otero Sullivan. Whereupon she instituted this suit in the court below, as their next friend, praying that all of these instruments, other than the deed from Persons to her husband, be canceled, that they be decreed to be the owners of a two-thirds interest in the land, and that it be sold for a partition. Appellant made Ms answer a cross-bill, setting up the foregoing facts, and praying that, if the court should'find that complainants are entitled to a two-thirds interest in the land, they be decreed to pay him two-thirds of the one thousand, eight hundred dollars paid by Mrs. Brown in order to obtain a cancellation of the vendor’s lien securing the purchase-money notes therefor executed by their father, J. R. Sullivan, and that, if necessary, appellant be subrogated to all the rights that the Merchants’ Bank had as holder of the vendor’s lien securing these notes. Prom a decree denying the prayer of this cross-bill, adjudging appellees to be the owners of a two-thirds interest in the land, and ordering a sale for partition, this appeal is taken.

In order to reach a correct solution of this controversy, it is not necessary for us to review the various decisions of this court cited by counsel, but simply to keep in view certain elementary principles of the law of subrogation, with which these decisions are in full accord. ‘ ‘ Subrogation is the substitution of one person in place of another, whether as a creditor or as the pos;sessor of any rightful claim, so that he who is substituted, succeeds to the rights of the the other in relation to the debt or claim, and-to its rights, remedies, or securities.” Words and Phrases, vol. 7, page 6722. “The doctrine is one of equity and benevolence, and, like contribution .and other similar equitable rights, was adopted from the civil law, and its basis is the doing of complete, essential, and perfect justice between all the parties, without regard to form, and its object is the prevention of injustice. The right does not necessarily rest on contract or privity, but upon principles of natural equity, and does not depend upon the act of the creditor, but may be independent of him, and also of the debtor.” 37 Cyc. 363. As was said by Chief Justice Sharkey in Blackwell v Davis, 2 How. 812, the doctrine of subrogation is “the offspring of natural justice, and courts should rather incline to extend than to restrict the operation of a principle so elevated and pure.” It applies, in general, “whereever any person, other than a mere volunteer, pays a debt or demand which in equity or in good conscience should have been satisfied by another,-or where a liability of one person is discharged-out of the fund belonging to another, and where one person is compelled for his own protection, or that of some interest which he represents, to pay a debt for which another is primarily liable, or wherever a denial of the right would be contrary to equity and good conscience.” 27 Ain. & Eng. Ency. of Law (2 Ed.), 203. And “whenever a party has such an interest in property as makes it incumbent on him to get in an outstanding claim or equity for its protection, good conscience dictates that he shall have all the rights which the holder of the equity had'.” Staples v. Fox, 45 Miss. 667.

In paying the notes executed by her former husband, •covering the purchase money for this land, and obtaining a discharge of the vendor’s lien securing them, Mrs. Brown was not a mere volunteer. She had the right to do this, in order to protect her interest in the land, and to look to her co-tenants for reimbursement to the extent of their proportionate interests therein. If these cotenants desire to retain their interests in the land, equity and good conscience demand that they reimburse Mrs. Brown; and, if necessary for complete justice to be done her, equity will treat this vendor.’s lien as still existing and enforce it for her benefit. It is true that in paying these notes Mrs. Brown labored under the mistaken belief that she was thereby obtaining a complete title to the land, and did not do so with the intention of looking to her. cotenants for reimbursement. She acted, however, in perfect good faith; and if her cotenants are not willing for her title to the land to stand, equity and good conscience demand that they reimburse her, or rather appellant, who has succeeded to her rights. They cannot keep the land and Mrs. Brown’s money, too, but, of course, can elect which they will retain.

To this right 'of Mrs. Brown appellant has succeeded by reason of the deed of trust executed by her, the foreclosure thereof, and the subsequent purchase by him. Bonner v. Lessley, 61 Miss. 392.

Reversed and rema/nded.