44 Ark. 504 | Ark. | 1884
In the year 1871 J. M. Williams, a citizen of Mississippi, purchased 240 acres of land in this State, and Teceived a bond conditioned to convey the title to him upon payment of the price, $2,400. This being all paid ■except a note for $1,000, which matured December 1, 1872, the vendor brought suit for foreclosure of his lien. And the vendee, being unable to pay, appealed to his father, P. W. Williams, who also resided in Mississippi, for assistance. The father came to Arkansas, bringing the bond for title, paid off the incumbrance, using $965 of his own money for that purpose, and received the outstanding purchase note, together with a deed to his son. The circumstances and the conduct of the parties repel the presumption that this was intended as a gift or advancement to the ■son. The deed was not placed upon record, nor was it delivered to the son; but the father kept both deed and note in his possession until his death in 1878, and evidently ■considered that he held a security for the repayment of the money he had advanced. He took charge of the land, put his son-in-law, Rodman, who lived in the vicinity, in possession and took care that the annual taxes were regularly paid. Rodinan held possession until December, 1874, when, by direction of P. W. Williams, he surrendered possession to another son of his, Thomas R. Williams. Thomas R., either before he entered or afterwards, made a contract with his brother, J. M., to purchase his interest in the lands. He held until 1879, when he sold out to Rodman, who was acquainted with all of the facts. In 1880 Rodman received from J. M. Williams a conveyance for 144 acres of the land, that being supposed to be the extent of his interest. And he afterwards acquired a tax title to the remaining 96 acres.
The present bill was filed in 1882, by the administrator of P. "W. Williams, against Rodman and J. M. Williams, to subject the land to sale for the satisfaction of so much of the purchase debt, with interest, as the deceased discharged. The defendants relied upon adverse possession under the statute of limitations and the title papers above mentioned. The decree was for the plaintiff.
The voluntary payment by a stranger of a debt-due to the vendor of real estate, and which is a charge upon it, ■extinguishes the debt and of course the lien also. (Nichol v. Dunn, 25 Ark., 129.) And the mere lender of money, which the borrower applies in part payment of the purchase money of land, is not substituted to the rights and a-emedies of the vendor. (Griffin v. Proctor, 14 Bush., 571.) But one who pays a debt at the instance of the debtor is not a volunteer; and if, when he made the payment, he manifested an intention to keep the prior lien alive for his protection, he will be deemed in equity a purchaser of the incumbrance. Sheldon on Subrogation, secs. 243, 247.
When P. W. Williams paid off this charge upon his son’s land, he took no formal assignment of the debt. But he expected to be substituted to the place of the creditor. This is evident from the fact that he retained the purchase note and deed in his possession and that he always looked to the land for reimbursement. This is not, however, sufficient in itself to give a right to subrogation. But the proof shows that when he returned to Mississippi, his son told him to keep the papers until the money was refunded. From the previous request made by the son that the father should relieve the land from the incumbrance, and his subsequent assent that the father should hold the papers until he was reimbursed, we may infer a prior agreement between the parties that the father should be substituted to the securities and remedies of the creditor. And this presents the ordinary case of a conventional subrogation.
Now, the original vendor, if the payment had not been made, and he were suing for foreclosure, would not be barred, according to the doctrine of Ringo v. Woodruff, 43 Ark., 469, and Whittington v. Flint, Ib., 504. Consequently P. "W. Williams, who advanced the money to pay off his debt, and who has exactly the same rights that the vendor would have had but for such payment, is also not barred. As against J. M. Williams and all claiming under or through him, with no greater rights or equities than he had, the debt itself and the lien, though extinguished for all other purposes, are considered as still subsisting for the benefit of P. W. Williams, the same as if the note had been actually assigned to him and no deed had been made. Chaffe v. Oliver, 39 Ark., 531; Robinson v. Leavitt, 7 N. H., 99.
Of the tax deed, it is only necessary to say that Rodman, being in possession of the lands, and in receipt of the rents and profits, could acquire no title by a purchase at tax sale. It only operated as a payment of the taxes. Guinn v. McCauley, 32 Ark., 97, and cases cited.
Let the decree be affirmed.
