147 Ind. 402 | Ind. | 1897
The questions in this case arise upon special findings of fact and conclusions of law stated by the lower court, the substance of which findings and conclusions is as follows: In May, 1892, the appellee, Myron E. Meader, owned a set of abstract books
In February, 1893, said Roose sold’ to the appellee, William M. Stuckman, then the husband of the appellant, Rose Stuckman, the remaining undivided one-half of said abstract books, fixtures and library, together with said notes and mortgage so executed by Sims, for which he paid to Roose $1,400.00, supplied by the appellant to her husband for that purpose. As a part of the purchase price for said property Stuck-man assumed the payment of said notes of Roose to Meader. To secure the appellant in the sum so advanced to him, William M. Stuckman assigned to his wife said notes and mortgage of Sims to Roose and executed to her his note for $1,400.00 secured by a chattel mortgage on his undivided half of said abstract books, fixtures and library, which mortgage was duly recorded on the day following its execution.
At the time the appellant advanced said $1,400.00 to her, husband, she had no actual knowledge of either the said notes and mortgage by Roose to Meader, or of her husband’s agreement to pay said notes and mortgage; and said Roose had no knowledge that said sum was'furnished by the appellant, or that she had any interest in it.
Upon the completion of the sale to Stuckman, he
The conclusions of law stated were that Meader was entitled to a first lien on said abstract books and fixtures for $1,037.50, the amount of the last mentioned mortgage; that appellant should recover from William M. Stuckman $1,575.00, the foreclosure of the mortgage executed by him to her on the undivided one-half of said library and an order for the payment of the proceeds of sale,first'to the costs, second to said $1,575, and third to the $621.05 paid to Meader on the note assumed by William M. Stuckman; that she should recover from Sims $1,140, in installments according to the maturity of his notes to William M. Stuckman, and the foreclosure of the mortgage executed by Sims to Roose and assigned successively to William M. Stuckman and to the appellant; and an order of sale of the property therein described, subject to the prior mortgage of Roose to Meader first mentioned, the proceeds of such sale to be applied, first, to the costs, second, to said $621.05 paid to Meader on the note- of Roose, assumed by Stuckman, third, to any balance due from William M. Stuckman,and any over-plus to Sims. And further, it was concluded that she was-not entitled to personal judgment against Roose. The appellant 'insists that for the $621.05 paid by her upon the first mortgage of Roose to Meader, she was entitled to a personal judgment against Roose, and, upon the doctrine of subrogation, to a lien upon the abstract books and fixtures senior to the lien of the second mortgage given by Roose to Meader. We are not impressed with any reason which would, if subro
The findings do not support a claim to conventional subrogation, that is, where, by the agreement of the creditor and the party making the partial payment, the amount paid is to be kept on foot for the protection of the latter. Such subrogation has recognition upon the authorities. See Morrow v. United States Mortgage Co., supra, and 24 Am. and Eng. Ency. of Law, pp. 274, 291. But subrogation in the absence of such agreement is not permitted where the debt is not fully paid.
The appellant was a creditor of her husband who assumed and agreed to pay the debt of Roose as a part of the purchase price of the property. Her claim was secured by a second mortgage on the property, which mortgage, having been duly recorded, was constructive notice of the lien created by it,and the finding that
Regardless of the question of Meader’s right to pursue Roose, notwithstanding the assumption by Stuck-man, we are unable to observe how Stuckman or his wife could, in the absence of fraud, mistake or agreement to that effect, enforce any claim against Roose by reason of the payment to Meader of one or more of the notes so assumed. She occupied no better' position as against Roose than her husband occupied, and in paying the note to Meader she but discharged a debt which he was obliged to pay. No right of subrogation as against Roose or Stuckman is involved in our inquiries,and what we have said as to the absence of liability of Roose to the appellant is without reference to the doctrine of subrogation. The mortgage of Sims, assigned to the appellant, does not, so far as we observe, give any force to the claim either for the priority of appellant’s $621.05 payment over Meader’s balance or for subrogation, and since the notes and mortgage given by Sims were endorsed by Roose without recourse upon him, we see no aid from that source to claim a personal judgment against Roose. The second mortgage of Roose to Meader, that executed to secure the purchase money due under the sale to satisfy the first mortgage between the same parties, can not be held junior to the two mortgages of the appellant, executed by Stuckman and by Sims, because
If the lien of said first mortgage, as to the $620.05 paid by the appellant could have been kept alive for her benefit we know of no good reason, and counsel do not attempt to offer any, why the time to have asserted that right was not' in the suit by Header. Although there was no adversary proceeding as between Roose and the appellant, in that suit, there was as to the appellant’s liens against the property, and as to the property, it was adjudged that she take only the surplus after paying Meader. If she had larger rights in that behalf she should have asserted them. Losing her lien, if any, gives her no personal claim against Roose.
In no phase of the question, therefore, has she not received the just measure of her rights in this suit.
Finding no error in, the record, the judgment of the circuit court is affirmed.