62 Iowa 699 | Iowa | 1882
— As against the defendant, it was held in 50 Iowa, 262, that the plaintiff was entitled to a foreclosure of the mortgage. Two days prior to the jprocedendo being filed in the district court, Robert Waller intervened in the action by filing a petition, in which he claimed that the plaintiffs’ mortgage was junior to certain liens or interests he had in and to the mortgaged premises. The material facts upon which such claim is based are as follows: The premises had been sold under executions issued on judgments establishing mechanics’ liens thereon. These liens were prior to that of the mortgage, and one Rayless was the purchaser at the execution sale. The defendant’s right of redemption expired in June, 1875. The right of creditors, including the plaintiffs, to redeem had expired prior to that time. Unless, therefore, redemption was made by or in the interest of the defendant, the premises would be conveyed by the sheriff to Ray-less, and the interest of the plaintiffs under the mortgage, as well as that of defendant, would be cut off, and Rayless would become the absolute owner of the premises.
A day or two prior to that on which the right to redeem expired, one Ackley, president of the defendant, and acting for it, applied to one Cain, an agent of the defendant at Du-buque, for a loan to redeem the property from the sale to Rayless. Ackley represented, or caused Cain to understand, that Rayless would assign the certificate of purchase upon being paid the amount required to redeem. Rut it was regarded as doubtful, for want of time, if this could be accomplished, as Rayless was a non-resident. Redemption had to be made
When Ackley came to execute the mortgage, it was as-
The intervenor insists that he in equity should be subro-gated to the rights of Bayless. That, as the lien of the latter was prior to the mortgage, he should be adjudged to be the owner thereof, and that it retain its priority in his hands to the extent of the money advanced to redeem. He contends that “subrogation does not depend upon contract, but rests upon the principles of justice and equity.” Many authorities have been cited by counsel in support of their respective theories. In the view we take of the case, we do not feel called upon to determine with any degree of exactness the rule as to subrogation. But, from a somewhat careful examination of the authorities ‘cited, we incline to think a person may be subrogated to the rights of another in the absence of any contract or understanding, where he is a surety, and pays the debt for his own protection, or where he is a junior lien holder, and ¡Jays the senior lien for his protection. In such cases he cannot be regarded as an intermeddler, because as a surety he is bound for the debt, and as a junior lien holder he has an interest in preserving and protecting the common property. But where a person is in no manner bound, and on his own motion, in the absence of a contract, or expectation that he will be substituted in the place o.f the creditor, pays the debt, he will be regarded as an intermeddler, and hot entitled to subrogation. Shinn v. Budd, 14 N. J. Eq., 234; Coe v. Railway Co., 31 Id., 105 (136); Building Association v. Thompson, 32, Id., 133; Ketchell v. Mudgett, 37 Mich., 81; Gilbert v. Gilbert, 39 Iowa, 657; Barber v. Lyon, 15 Id., 37.
At the time the premises were conveyed to the intervenor, there were taxes due thereon, and we believe he has paid subsequent taxes, and also those then due. There had been established, also, a mechanics’ lien in favor of Moore & Company on the real estate, or a building thereon — there is some dispute as to which. This lien has become the property of the intervenor, and was superior to the mortgage on the real estate, or a building thereon. The district court determined
Reversed.