108 So. 525 | Ala. | 1926
This cause has been here before on decree overruling demurrers to the bill of complaint as amended. Yarbrough v. Hightower,
John W. Shields and C. A. Yarbrough, respondents, each filed separate answers in the nature of cross-bills, by which each sought to have the property of E. C. Robinson first sold, and, if that was insufficient to pay the judgment satisfied by the complainants, then to have sold that property of Robinson that was owned and conveyed by him during his term of office in the inverse order of its alienation, and to have these respective cross-complainants subrogated to the rights and interests of incumbrancers that held incumbrances on their respective lands prior to E. C. Robinson's becoming tax collector, and that were paid off with funds furnished by the respective grantors of these respective cross-complainants, and who were grantees of E. C. Robinson, and "also to be subrogated to incumbrances which appellants' funds or their respective grantors' paid off that were on the land deeded to Robinson before the deeds were made"; and for payment for permanent improvements made by them on the land.
The complainants and the defendant C. Pepper, Sr., demurred to each cross-bill and to parts of each cross-bill. The court by decree sustained demurrers of C. Pepper, Sr., "to the cross-bill of John W. Shields and C. A. Yarbrough." The court by decree ordered that demurrer of complainants to the cross-bill of C. A. Yarbrough and the demurrer of complainants to paragraphs 3, 4, 5, 8, and 9 of said cross-bill be, and the same are hereby, sustained; and the court by decree ordered that the demurrer of complainants to the cross-bill of John W. Shields and the demurrer of the same parties to paragraphs 3, 4, 5, 8, and 9 thereof be, and the same are, sustained. It thus appears the court sustained demurrers of Pepper to each cross-bill as a whole, and the court sustained demurrers of the complainants to each cross-bill as a whole and to parts of each cross-bill. These decrees are appealed from separately by John W. Shields and C. A. Yarbrough, and each assigns separately each decree as error.
It appears that E. C. Robinson now owns some real estate which was owned by him during his term of office; and that during his term of office he sold and conveyed at different times to different persons certain real estate mentioned in the amended bill and in the cross-bills. These cross-complainants are vendees or subvendees of some of this real estate, and they have an equitable right, and are entitled in equity, to have complainants exhaust, first, the property belonging to and remaining in possession of E. C. Robinson in satisfaction of the lien of the state and county, which they paid; and, if that property of Robinson is insufficient to satisfy the same, then complainants must sell and exhaust that property conveyed by Robinson in the inverse order of its alienation. This equitable principle is clearly stated in 34 C. J. 618, § 942, headnote 39. It has been approved by this court in Relfe v. Bibb,
This bond of the tax collector, Robinson, is a lien upon the property of Robinson from the date of its execution. Section 2603, Code of 1923. And purchasers from Robinson of his real estate "are charged by law with notice of the lien, and can acquire no right or interest which is not subordinate to it." Knighton v. Curry,
Robinson entered on the duties of the office of tax collector on October 1, 1917, and served out his term, which ended September 30, 1921. Robinson conveyed by warranty deed, with usual covenants, certain land, on December 11, 1917, to Critz Wallace for a recited cash consideration of $6,000. It was duly recorded on January 12, 1918. Robinson had, on October 15, 1913, executed to W. T. Sanders as administrator a mortgage on this land, which he sold and conveyed to Critz Wallace, and the amount due and unpaid on said mortgage was $2,140.14, when Wallace purchased the land from Robinson; and $2,140.14 of this purchase money of Wallace's was used by Wallace to pay and satisfy this mortgage to Sanders as administrator. Wallace by this conveyance purchased and secured from Robinson his equity of redemption in this land, and, on his paying off this prior mortgage thereon, he thereby became entitled to be subrogated to the rights of the mortgagee, and this mortgage was given by Robinson on this land before he became tax collector, and was a superior lien on the land to the extent of the debt secured ($2,140.14) and paid by Wallace to the lien of the state and county under the bond of Robinson.
This court, in Fidelity Deposit Co. v. Richeson,
"The purchaser of an equity of redemption upon paying off prior mortgages is subrogated to the rights of the mortgagees paid off, the mortgages paid being considered part of the purchaser's title to the premises."
See, also, Faulk v. Calloway,
Wallace was entitled to equitable subrogation to the lien of the mortgage of Sanders, as administrator, to the extent that his purchase money was used by him in payment and discharge of this real estate from the mortgage. See Fouche v. Swain,
It appears from the bill as amended and the cross-bill of John W. Shields that on March 8, 1916, Robinson, before he became tax collector, bought certain land mentioned in this cross-bill as the Shields land. Robinson, on June 26, 1916, before he became tax collector, executed a mortgage on this land to D. E. Wolfe to secure the sum of $1,200. Robinson, on November 27, 1918, sold and conveyed this land to S. Hardison in consideration of $3,000, including the assumption of this $1,200 mortgage to Wolfe on this land by Hardison. Hardison afterwards paid and satisfied in full this $1,200 mortgage to Wolfe. This title of Hardison to this land fails, and is defective, in that it was not free from liens on account of the bond of Robinson and the lien of the county and state on this land through the bond for the amount due the state and county caused by default of Robinson. This title of Hardison fails as aforesaid, and part of the purchase money was paid by him as the purchaser in paying the mortgage lien of Wolfe thereon, and this entitles Hardison to be subrogated to the rights of Wolfe, the mortgagee paid by him.
In 25 R. C. L. 1353, we find this general text:
"And the rule supported by the weight of authority is that, when a purchaser pays off a prior incumbrance as a part of the purchase price without actual notice of a junior lien, it will be presumed that he paid the same for his own benefit and the protection of his own interests, and equity will treat him as the assignee of the original incumbrance, and will revive and enforce it for his benefit. Having caused the same to be satisfied under circumstances authorizing an inference of mistake of fact, equity will presume such mistake in order to give the party the benefit of the equitable right of subrogation, and, in so doing, prevent *611 manifest injustice and hardship, without interfering with intervening equities."
In Faulk v. Calloway,
"The principle we have announced is recognized in the doctrine so tersely stated in 24 Am. Eng. Encyc. of Law, 257, which is in this language; 'It is held that, if the purchaser expressly assumes to pay the incumbrance, he thereby becomes the principal debtor, primarily and absolutely liable for the debt, and may not be subrogated to the benefit of the incumbrance upon making payment according to his contract. And, generally speaking, to entitle a purchaser to subrogation the claim which he satisfies must be such as would be enforceable against the land in his hands. If the purchaser's title fails, and the purchase money has been applied to the payment of liens and incumbrances on the property, he will be subrogated to the rights of the holders of such claims.' "
See, also, Fid. Dep. Co. v. Richeson,
Hardison sold and conveyed this land to John W. Shields, this cross-complainant, on December 31, 1919. Shields, as purchaser from Hardison, "stands in the latter's shoes, and is entitled to the same protection," with the same equitable right to be subrogated to the rights of Wolfe, the mortgagee paid by his vendor, and with the same equitable priority over the lien of complainants. Fid. Dep. Co. v. Richeson,
It results that the court erred in sustaining demurrers of complainants and of defendant Pepper, Sr., to this cross-bill of Shields seeking to be subrogated to the lien of the Wolfe mortgage on the land to the extent of the balance due thereon which was paid by his vendor, Hardison. Authorities supra.
The cross-bill of Shields alleges Robinson purchased certain land from Whitt on November 27, 1918, while he was tax collector, and assumed as part of the purchase price a mortgage thereon given by Whitt to one Hall. Robinson paid the cash price to Whitt, and this Hall mortgage with money received by him from Hardison as the purchase price of the other and different land conveyed by Robinson to Hardison, hereinbefore mentioned, which land Hardison afterwards sold to Shields. Shields now seeks to be subrogated to the rights of the mortgagee, Hall. Shields claims no title to the Whitt land in this Hall mortgage. Robinson conveyed and sold no part of this land to Hardison, the vendor of Shields, and Hardison did not convey it to Shields. There is no contractual relation between Robinson and Hardison, and Hardison and Shields, as to this land in this Hall mortgage. Shields has no title or interest in it. Shields connects himself in no way with the Whitt land. It results that the court properly sustained the demurrers of complainants and defendant Pepper, Sr., to that part of this cross-bill of Shields which seeks to be subrogated to the lien of the Hall mortgage. Authorities supra.
The decree is affirmed in part, and reversed in part, and the cause will be remanded for decree to be rendered in accordance with this opinion. The complainants are taxed with one-half, and defendant C. Pepper, Sr., with the other one-half of the costs of this appeal.
Affirmed in part, and in part reversed and remanded.
ANDERSON, C. J., and SAYRE and GARDNER, JJ., concur.
