Murphree v. Clisby , 168 Ala. 339 ( 1910 )

SAYRE, J.

Appellee filed her bill to foreclose a mortgage, which had been made to her by W. T. and Clara Jackson, husband and wife, to secure the debt of the former; the wife joining merely to release her dower right. Wheu answers were filed it appeared that the defendants would rely upon the fact that the husband was insane at the time of the execution of the mortgage to defeat foreclosure. Later, the death of Jackson was suggested, and leave had to revive against his heirs and representatives. There was, however, no effort to revive; but an amendment was filed, which brought in appellant as a party defendant, and prayed that a decree be rendered against appellant for the mortgage debt, together with an attorney’s fee as provided in the mortgage, and that a lien for the same be declared upon the property. As establishing appellee’s right to this relief against the appellant, the amendment showed that prior to the execution of the mortgage Jackson had agreed to purchase the mortgaged property from appellant; that to piece out his own funds to the amount of the agreed purchase price he borrowed money of appellee and executed the mortgage in question to secure the same; that Jackson paid the money he had in hand to appellant, and directed appellee to pay to appellant the sum secured by the mortgage as the balance of the purchase money, which complainant did, whereupon appellant executed a deed to Jackson, and Jackson executed the mortgage to appellee; that appellant understood the purport of the entire transaction; and that Jackson was at the time insane. It does not appear that either appellant or appellee knew of Jackson’s lunacy. Appellant demurred to the amended bill generally and specially, and, upon her demurrer being overruled, prosecuted this appeal.

• There are a number of difficulties in appellee’s position. Among them, her assertion of equity against the appellant is fundamentally unsound. She states her-equity as one of subrogation in some sort. Assuming the nullity of the deed and mortgage, that the legal title to the land is still in appellant, and that Jackson’s representatives are entitled to have back the money paid fcy him, the contention is that since appellant, with knowledge of the circumstances — not however, a knowledge of Jackson’s insanity, if that would make any difference — received appellee’s money, knowing that appellee, in paying it, relied upon the security of the mortgage, appellee ought to have a decree against appellant for her money and a lien upon the land. We need not concede that the efficacy of an absolute deed, without conditions, depends upon the legal capacity of the grantee to transfer an estate by deed.—Concord Bank v. BeLlis, 10 Cush. (Mass.) 276. However that may be, the fact is that appellant received no money of the appellee — or at most the receipt was manual only. The consideration for the deed moved from Jackson to appellant. The consideration for the mortgage moved from appellee to Jackson. Appellant and appellee acted in entire independence of each other. The doctrine of subrogation is that where one, not voluntarily, but to protect his own rights, satisfies a debt for which another is primarily liable, he may enforce against the person primarily liable all the securities, and advantages held by the creditor. A statement of the case has shown that •appellee is in no position to appeal to this doctrine. Appellee’s contention seems rather to squint at fraud. But the bill is totally inadequate along that line. There were no relations of contract, trust, or confidence between appellant and appellee. Both acted in good faith and in ignorance of Jackson’s lunacy. To permit appellee to maintain her hill would be to hold her as a warrantor of her grantee’s sanity. It is clear that she did not assume that burden, and there is no principle of law by which it may be imposed upon her. Appellant’s demurrer for want of equity should have been sustained.

Reversed and remanded.

Simpson, Anderson, and McClellan, JJ., concur.