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Swigert v. Bank, 17 B. Mon. 268; Carter v. Neal, 24 Ga. 346 (71 Am. Dec. 136); Receivers v. Wortendyke, 27 N. J. Eq. 658; Rice v. Morris, 82 Ind. 204. But the doctrine of the cases has, in every instance been invoked for the protection of the creditor, and never, so far as we are advised, to defeat contract obligations in the interest of the debtor alone. Thus understood, the exception requiring payment in full of the debt as a condition precedent to the right of subrogation is as firmly established as the rule itself. Cases are, however, not wanting, directly in point, and in which subrogation has been allowed between parties occupying towards each other the relation of co-sureties and the like upon the payment of a part only of the debt. See Comins v. Pottle, 35 N. J. Eq. 94 ; Gedye v. Matson, 25 Beav. 310; Kelley v. Kelley, 54 Mich. 30 (19 N. W. Rep. 580); Sheld. Subr. § 128."

Sec. 278. Subrogation-Surety's rights. A surety discharging the debt of his principal, may be subrogated to the rights of a creditor under an equitable mortgage. Hackett v. Watts, 138 Mo. 502 (40 S. W. Rep. 113). Where one occupying the position of a surety pays the debt, he is entitled to the benefit of all the securities which the principal debtor has placed in the hands of his creditors to secure the debt. Manning v. Ferguson, 103 Ia. 561 (72 N. W. Rep. 762.) Ordinarily the creditor is entitled to full satisfaction of the debt before subrogation may be invoked and the surety may not meddle with any of his rights and securities so long as any portion of the debt remains unsatisfied. Bartholomew v. First Nat. Bank, 57 Kan. 594 (47 Pac. Rep. 519).

Sec. 279. Subrogation-Furnishing money to discharge vendor's lien. One taking a mortgage on a homestead to secure a loan may be subrogated to a prior vendor's lien existing against the homestead, to the extent the money furnished by him was used to discharge such lien. Dixon v. National Loan & Inv. Co., Tex. Civ. App. (40 S. W. Rep. 541). Where notes, given to one who furnishes money with which to discharge a vendor's lien, recited that they were given for the price of land and such conveyances are executed between the parties

as amount to a mortgage on the land to secure the payment of the loan, the holder of such notes will be entitled to be subrogated to the rights of the holder of the original vendor's lien, although such may not have been the express intention of the parties at the inception of the transaction. Mustain v. Stokes, 90 Tex. 358 (38 S. W. Rep. 758). For particular case in which it is held that persons furnishing money to discharge a vendor's lien are entitled to be subrogated to it, see Greishaber's Ex'rs v. Farmer's Ex'r., W. Rep. 742).

Ky.

(42 S.

Sec. 280. Subrogation-Payment of first mortgage under agreement for first lien. One who loans money to a mortgagor to discharge a first mortgage and takes a mortgage to secure its repayment, under an agreement that he is to have a first lien on the real estate, is entitled to be subrogated to the original mortgage, as against intermediate judgment creditors of the mortgagor, where the money was paid directly to the original mortgagee and the notes delivered to the last mortga gee uncancelled, the original mortgage remaining unreleased. Bankers' Loan & Inv. Co. v. Hornish, 94 Va. 608 (27 S. E. Rep. 459). One who loans money to discharge a first mortgage upon real estate, and which is used for that purpose, not knowing of the existence of a second recorded mortgage, and takes a mortgage to secure his loan under an agreement with the mortgagor that he is to have a first lien, is entitled to be subrogated to the rights of the first mortgagee; and the fact that the record shows a release of the first mortgage does not affect this right, the second mortgagee's position not having been changed on account of such release. Home Sav. Bank v. Bierstadt, 168 Ill. 618 (48 N. E. Rep. 161; 61 Am. St. Rep. 146). The court say: "Subrogation as a principle of equity jurisprudence is generally confined to the relation of principal and surety and guarantors, or to a case where a person is compelled to remove a superior title to that held by him in order to protect his own, and also to cases of insurers. The general principle of subrogation is confined and limited to these classes of cases. Borders v. Hodges, 154 Ill. 498 (39 N. E. Rep. 597); Bishop v. O'Conner, 69 Ill. 431. While these general heads include the doctrine and principles of

subrogation, that doctrine has been steadily expanding and growing in importance and extent in its application to various subject and classes of persons. This equitable principle is enforced solely for the accomplishment of substantial justice where one has an equity to invoke which cannot injure an innocent person. The right to subrogate which springs from the mere fact of the payment of a debt, and which is included under the heads first above stated, as including the equitable principles of subrogation, is what is termed 'legal subrogation,' and exists only where included within these classes. But, in addition to this principle of legal subrogation, there exists another principle, which is termed 'conventional subrogation,' and which results from an equitable right springing from an express agreement with the debtor, by which one advances money to pay a claim for the security for which there exists a lien, and by such agreement he is to have an equal lien to that paid off. Then he is entitled to the benefit of the security which he has satisfied, with the expectation of receiving an equal lien. Coe v. Railway Co., 31 N. J. Eq. 105; Association v. Thompson, 32 N. J. Eq. 138; Tyrrell v. Ward, 102 Ill. 29. This principle has been before this court, where the question of the necessity and effect of such an agreement was considered, in White v. Cannon, 125 Ill. 412 (17 N. E. Rep. 753), where it was held: It is only where the payment of incumbrances is necessary to protect the rights of the payor, or where they are paid pursuant to an agreement with the debtor that the payor shall hold them as security for the money advanced, that the payor will be subrogated to the rights of the holders of such liens, and the liens will be kept alive for his benefit. But where the demand of a creditor is paid with the money of a third person, not himself a creditor, without any agreement that the security shall be assigned or kept on foot for the benefit of such third person, the demand is absolutely extinguished.' It is the agreement that the security shall be kept alive for the benefit of the person making the payment which causes the right of subrogation to exist, because it takes away the charactor of a mere volunteer. Here the agreement between the debtor and the appellee who advanced the money was to the effect that appellee was to advance sufficient money to discharge the seven Goudy deeds of

trust, and should receive from the debtor, by way of security for the money so advanced, a first mortgage upon the seven lots. In equity that was an agreement that the Goudy deed of trust should become security for her loan. That was the substance of the transaction, and equity will effectuate the real intention of the parties where no injury is done to an innocent party by applying the principle of conventional subrogation. Tyrrell v. Ward, 102 III. 29; Draper v. Ashley, 104 Mich. 527 (62 N. W. Rep. 707); Trust Co. v. Peters, 72 Miss. 1058 (18 So. Rep. 497; 30 L. R. A. 829); Levy v. Martin, 48 Wis. 198 (4 N. W. Rep. 35); Wilton v. Mayberry, 75 Wis. 191 (43 N. W. Rep. 901; 17 Am. St. Rep. 193; 6 L. R. A. 61); Dillon v. Kaufman, 58 Tex. 696. This principle will be applied even where the record shows a release of the satisfied incumbrance, as the lien so satisfied will be revived for the benefit of the party satisfying the same, where there has been no gross negligence, and where justice requires it should be done; and this will be done as against a subsequent incumbrancer, whose incumbrance has not been taken or his position changed be- . cause of the record showing the discharge of the senior incombrance. Tyrrell v. Ward, 102 Ill. 29; Hammond v. Barker, 61 N. H. 53; Emmert v. Thompson, 49 Minn. 386 (52 N. W. Rep. 31; 32 Am. St. Rep. 566); Trust Co. v. Peters, 72 Miss. 1058 (18 So. Rep. 497; 30 L. R. A. 829); Draper v. Ashley, 104 Mich. 527 (62 N. W. Rep. 707); Levy v. Martin, 48 Wis. 198 (4 N. W. Rep. 35); Bruse v. Nelson, 35 Ia. 157; Campbell v. Trotter, 100 Ill. 281."

Sec. 281. Subrogation-Grantees to mortgagees. A purchaser of land who, as a part of the consideration, pays an outstanding mortgage relying upon the representations of the grantor that there are no other incumbrances on the land, is entitled to be subrogated to the rights of the mortgagee as against a junior judgment lien. Johnson v. Tootle, 14 Utah 482 (47 Pac. Rep. 1033). Citing, Matzen v. Shaeffer, 65 Cal. 81 (3 Pac. Rep. 92); Barnes v. Mott, 64 N. Y. 397 (21 Am. Rep. 625). A purchaser at a foreclosure sale will be subrogated to the rights of the holder of a mortgage which has been discharged with the purchase money, in the event that the sale is ineffectual to convey title to the property sold,

Bruschke v.

and the right passes to his assignee or grantee. Wright, 166 Ill. 183 (46 N. E. Rep. 813; 57 Am. St. Rep. 125). Citing, Rogers v. Benton, 39 Minn. 39 (38 N. W.. Rep. 765); Richards v. Morton, 18 Mich. 255; Jordan v. Sayre, 29 Fla. 100 (10 So. Rep. 823); Bonner v. Lessley, 61 Miss. 392. Where land incumbered by mortgage has been sold by the mortagor for its full value, and the purchase money applied in satisfaction of the mortgage debt, equity will keep the mortgage security alive for the benefit of the purchaser, and enforce it for his protection as against incumbrances subsequent thereto; and where the purchase money so applied is but a partial payment on the mortgage debt, the purchaser will be entitled to enforce the lien to the extent necessary for his reimbursement, when that will not interfere with the mortgagee's security for the unpaid balance. The right of the purchaser to subrogation in such case is not affected by notice of the incumbrances when he bought and paid for the land; nor is it necessary to his right that he show an intention was then present to keep the mortgage on foot for his protection, for that, being to his advantage, the intention will be presumed. Joyce v. Dauntz, 55 O. St. 538 (45 N. E. Rep. 900).

Sec. 282. Subrogation-Discharging mortgage liens -Particular cases. One taking a mortgage from a cotenant upon the common estate whose money is used in discharging a previous mortgage, is entitled to be subrogated to the lien of such mortgage. Haverford Loan & Bldg. Ass'n v. Dougherty, 180 Pa. St. 522 (37 Atl. Rep. 179; 57 Am. St. Rep. 657). A person, without any previous interest, who pays a mortgage debt at the instance of the mortgagor, and takes a mortgage on the same property, believing that he is getting security equal to that held by the person whose debt he pays, may, when no innocent person can be injured, be subrogated to his rights. George v. Butler, 16 Utah 111 (50 Pac. Rep. 1032). Where, at different times, one gave two different mortgages to the same person, the second excepting from its covenants the first, and afterwards conveyed the land to a third person subject to both mortgages, and the mortgagee foreclosed the junior mortgage and sold the property subject to the first

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