Ramoneda Bros. v. Loggins , 89 Miss. 225 ( 1906 )

Whitfield, C. J.,

delivered the opinion of the court.

The former opinion in this case dealt with the pleadings on demurrer, the merits of the case, of course, not being considered. When the case got back to the court below, it was tried on full proof. Prom this proof certain facts are clear: First, that W. T. Loggins never paid anything to Schack on the purchase money on this land, at the time the purchase was made; second, that he never paid anything to Lomax on the trust deed held by him; third, that he had, at the time, no interest in the land whatever; fourth, that Peteet paid the whole purchase money, in accordance with the terms of the deed from Schack to him, to Lomax, and satisfied, paid off, and extinguished that trust deed; fifth, that it was the purpose and intention both of Schack and Peteet to so pay off and extinguish said Lomax trust deed, and not to keep it alive in any way, or to have the nóte which said trust deed secured assigned to Peteet, or to Loggins, or to anybody else; sixth, that Peteet not only had constructive notice of the Bamoneda trust deed from the record of such trust deed, but actual notice, as shown by the recitation in the deed from Schack to him, in which deed it was expressly stated that Peteet was to assume and pay off this very indebtedness to Lomax, and was not to pay the difference between that and other indebtedness named, due to the Delta & Pine Land Company, and the sum of $3,110 named, until the trust deed of Bamoneda Bros, had been satisfied and canceled of record, this last fact being twice mentioned in said deed; seventh, that the plain purpose of the assignment of the note of Lomax to Loggins was to cut out and defeat the Bamoneda trust deed, by an arrangement to that effect made between Peteet and Loggins. Loggins got nothing when he got the note assigned to him, for the note already had been paid off under express language of the deed, showing the plain purpose to have been, as stated, not to have the note assigned, nor to keep it alive in any way in favor of any person then interested, but simply and merely to pay off and discharge the note and the trust deed held by Lomax. Under these facts this case is covered perfectly by the case of Howell v. Bush, 54 Miss., 437, and Good v. Golden, 73 Miss., 91 (19 South. Rep., 100; 55 Am. St. Rep., 186). In the case of Cansler v. Sallis, 54 Miss., 446, the decision turned upon the express agreement that the security was to be kept alive. On the proof made in this case there is no possible room for the play of the doctrine of subrogation, equitable or conventional. Loggins was an absolute stranger, and a mere volunteer. As stated in Trust Co. v. Peters, 72 Miss., 1070 (18 South. Rep., 497; 30 L. R. A., 829), equitable subrogation can never be invoked in favor of a pure volunteer. As stated in the case of Howell v. Bush,, the court cannot make contracts for parties, and if parties elect to have securities paid off discharged and canceled, and everything in the case shows that to have been the purpose, and that purpose was actually effectuated by what was done in the case, parties will not be allowed to change that election and insist upon a different purpose and a different contract.

It folloios, from these views, that ■the decree of the court' below is reversed, and the cause remanded, with instructions to the court below to allow the amended cross-bill to be filed, to dissolve the injunction granted in favor of appellee, and to proceed further-in accordance with this opinion.