American Trust & Savings Bank v. Turner , 16 Ala. App. 602 ( 1918 )

There are two questions presented by this record for review:

First. Is the claimant entitled to be subrogated to the rights of Crawford in the automobile?

Second. If so, is the affidavit of the claimant propounding his claim broad enough to meet the requirements of the statute?

The second question will be dealt with first.

Before there can be subrogation, there must, of course, be an obligation; but the retention of title by the seller in a note given for the purchase money of personal property does not prevent the enforcement of the obligation to pay the entire purchase price, and the retention of title is at most a security for the payment of the purchase money. Davis v. Millings, 141 Ala. 378, 37 So. 737; Bingham v. Vandegrift,93 Ala. 283, 9 So. 280; Tanner De Laney v. Hall, 89 Ala. 628,7 So. 187.

Under our statutes, any person holding a claim, either legal or equitable, to personal property, may institute a claim suit to try his rights to it at law, as though he had the legal title. Code 1907, § 6039.

The claimant, in making his affidavit, averred that he had a just claim to the property levied on, viz. that he holds title to and owns said property. If his contention be correct that he is entitled to be subrogated to the rights of Crawford, who held the legal title to the property by reason of the retention title note executed at the time of the purchase, then his affidavit is sufficient. It is not necessary for the court to require the claimant to propound his claim so as to set out at length what general right or title he may have to the property. Warren v. Liddell, 110 Ala. 232, 20 So. 89.

The one question, then, upon which a proper determination of this case depends, would be the right of the claimant to be subrogated to the right of the original seller, under the instrument in writing given to secure the purchase money, in which the seller retained the title to the property, and that right would depend upon whether or not the facts in this case would justify the claimant to be subrogated under the doctrine of conventional subrogation. The rule supported by the great weight of authority in America is that, when a party is entitled to subrogation, he is also entitled to have assigned to him every judgment, specialty, or other security held by the creditor in respect to the debt, whether or not deemed at law to have been satisfied (37 Cyc. p. 411, and authorities cited under note 87), and this assignment is to the extent necessary to protect him from loss, and is entitled to be substituted in the place of the creditor as to all means and remedies which the creditor possessed to enforce payment of the debt secured from the principal debtor. Saint v. Ledyard, 14 Ala. 244; New Eng. Mortgage Security Co. v. Fry, 143 Ala. 637, 42 So. 57, 111 Am. St. Rep. 62; Arnett v. Willoughby et al., 190 Ala. 530,67 So. 426.

The above rule is declaratory of the rights of parties in legal subrogation; but, wherever a party is entitled to conventional subrogation, the same rule is alike applicable.

The doctrine of conventional subrogation is not new to the jurisprudence of this state, and one who pays off the obligation of another secured by a mortgage, or advances money for its payment at the instance of the debtor and for his benefit — such a person is in no true sense a mere stranger and volunteer, but in a proper proceeding is entitled to be subrogated to the rights of the original creditor. 7 Mayf. Dig. p. 858, subhead Subrogation; Bell v. Bell, 174 Ala. 446,56 So. 926, 37 L.R.A. (N.S.) 1203; 37 Cyc. 367 et seq.

It is not essential to conventional subrogation that the creditor should be a party to the agreement between the debtor and a third party, and the contract supporting the subrogation may be between the party to be subrogated and either the creditor or the debtor. Allen v. Caylor, 120 Ala. 251,24 So. 512, 74 Am. St. Rep. 31. Neither is the agreement required to be in writing. Allen v. Caylor, supra.

The foregoing being the law, the court did not err in overruling plaintiff's motion to strike the claimant's affidavit from the file, nor in overruling plaintiff's objection to the introduction of the lease sale contract executed by Turner, the debtor, to Paul Crawford, the original seller, nor in overruling plaintiff's objections to questions propounded to Turner and to Kyser to prove the agreement between them relative to the subrogation.

The court did not err in overruling plaintiff's motion to exclude all the evidence offered by the claimant relative to the Paul Crawford mortgage or lien and to exclude the mortgage. This testimony was relative to the issues involved in the case.

The court did not err in submitting to the jury the question as to whether, under the facts, there was a conventional subrogation, and the excerpts from the general charge of the court properly define the necessary elements of conventional subrogation, and were without error.

We find no error in the record, and the judgment is affirmed.

Affirmed.