Rea v. Keller , 215 Ala. 672 ( 1927 )

This case involved the trial of the right of property, and there was verdict for the claimant which was set aside by the court upon motion of the plaintiff, and this appeal is from the judgment of the court granting said motion.

The plaintiff had a judgment lien against the defendant, Oliver, but which was subject to a prior mortgage on the mules levied upon and which had been given by the defendant to Lunsford, but the Lunsford mortgage was paid by the defendant and surrendered to him (the said defendant). There was no transfer or assignment of said mortgage to the claimant, Rea, or any one else. The defendant gave Rea, the claimant, a mortgage on the mules, but subsequent to the accrual of the plaintiff's judgment lien. Therefore the plaintiff had the superior lien, and was entitled to the affirmative charge, unless the claimant had the right to avail himself of the Lunsford lien, claiming the right to a conventional subrogation upon the theory that he advanced the money to the defendant for the purpose of enabling him to pay the Lunsford mortgage. Whether the claimant was or was not entitled to a subrogation to the rights of Lunsford we need not decide, for, if he were, such a right could only be established and enforced in a court of equity and by appropriate pleading and process as applicable to equity pleading and practice. Subrogation is an equitable doctrine, enforceable alone in a court of equity. It is not recognized or applied by courts of law except as provided by express statute. American Bonding Co. v. Fourth National Bank,206 Ala. 639, 91 So. 480, and cases cited. It is true that upon the trial of the right of property an equitable title can be shown, but that means an existing one and not one which can only be established and enforced in a court of equity. The trial court erred in admitting the claimant's mortgage in evidence over the plaintiff's objection (Hammond v. White,214 Ala. 431, 108 So. 347), and in not giving the general charge for the plaintiff, and properly granted the new trial, and the judgment of the circuit court is affirmed.

Affirmed.

SOMERVILLE, THOMAS, and BROWN, JJ., concur.

On Rehearing.