Per .Curiam.
J. W. Capel brought an equitable petition against P. A. Willis, administrator of the estate of Mrs: Willie R. Morgan, and others, alleging in substance that on April 24, 1912, Mrs. Morgan borrowed a sum of money from American Investment & Loan Co., and exeeutéd her note and deed to described land as security; that that loan was subsequently foreclosed and reduced to judgment; that in July, 1919, Mrs. Morgan borrowed from the petitioner $2500 for the purpose of paying off that judgment; that it was understood and agreed between petitioner and Mrs. Morgan that if he advanced the money to pay off the first-mentioned loan, the security deed offered to him was to be a first lien on the property, and that petitioner was to be subrogated to all of the rights of the American Investment & Loan Co. He praj^ed for judgment for the unpaid balance due him on the note. By amendment it was alleged that the deed from Mrs. J. H. Morgan to J. H. Morgan, guardian, recorded in the clerk’s office of Pike County in deed book 10, page 35, was a voluntary deed without consideration, that petitioner had no knowledge of said deed at the time he made the loan; and that his said loan deed was superior to the voluntary conveyance. No mention was made in the petition of'the sale and reinvestment of the property of the defendants, then minors, by which defendants claim the remainder interest in the property here involved. The court overruled a demurrer to the petition as amended, and overruled a motion for new trial after verdict in favor of the plaintiff.
Headnotes 1 and 2 do not require elaboration.
One ground of the motion for new trial complains that the court erred in withholding from the jury material evidence as follows: Deed from J. H. Morgan as guardian of Harry, Ruth, Eloise, and Vincent Morgan, minors, to G. D. Dominick, dated July 22,.'1912, and recorded July 29, 1912, conveying a remainder interest of said minor children in fifty acres of land of land lot 193 in the 9th district of Pike County, Georgia, and being part of the Barker estate inherited by said minor children under the will of their grandfather ; said deed reciting that it was made pursuant to an order of the judge of the superior court of said county, dated October 28, 1911, authorizing a private sale of said land by J. H. Morgan as guardian, for the purpose of reinvestment in a two-acre tract of *514land in Moleña, Georgia, and that said sale was made in consideration of the sum of $2000. Movants contend, that the “deed showed that the property owned by them was conveyed by their guardian, and that it purported that it was conveyed .pursuant to an order of the judge of the superior court; that .said' order had directed the sale of said property and the reinvestment of the proceeds of the sale thereof in the two-acre town lot -which is the subject of this litigation. Movants contend that the money paid by Dominick for said deed was paid by the guardian of said minor children for the deed from their mother to them, conveying a remainder interest in the town lot, and that said deed should have been admitted in evidence in support of their contention that the deed from the mother to the children was not a voluntary conveyance, as contended by the plaintiff.” The judge attached the following note to this ground: “The undisputed evidence was that the deed referred to was a deed to secure a debt, and that the debt has been paid. On objection to its admission in evidence, for this and other reasons, the objections were sustained and the deed excluded.” The reasons stated in this note are not súñicient to justify the exclusion of the evidence. Even if the deed was one to secure a debt, it purported to be in pursuance of an order of court for the sale and reinvestment of the property of the minors, and it was material evidence tending to show the source from which the minors obtained the fund to be paid to the mother for the remainder interest in her town property as a reinvestment of the fund pursuant to the order of court. Had that deed been admitted in evidence, the evidence as a whole would have demanded a verdict for the defendants. The contract under which the petitioner claims was that of lender and borrower, evidenced by a security deed from the mother of defendants to described land. On October 30, 1911, Mrs. Morgan, mother of the defendants, conveyed, the remainder interest in the land to her children, the defendants. This deed was not recorded until March 25,1915. This deed was made pursuant to a-n order of court providing for a sale of property of the minor children of Mrs. Morgan and a reinvestment of the proceeds derived from such sale in the purchase of a remainder interest in Mrs. Morgan’s property, the property herein involved. On April 24, 1912, Mrs. Morgan executed a security deed, recorded March 10, 1912, to American Investment & Loan Co., purporting to convey the entire interest in the land as security for a *515loan. This deed, because of the delay in recording the first mentioned deed, took precedence over it. On July 14, 1919, Mrs. Morgan, mother of the defendants executed a deed to the petitioner, Capel, to secure a loan of money. This deed was recorded January 26, 1920. Capel at the time of making this loan had no interest in the property to protect, and was a mere volunteer in making the loan to Mrs. Morgan; therefore no equitable subrogation arose because of said transaction. There was no conventional subrogation, because at the time Capel entered into his contract with Mrs. Morgan, in consequence of which Mrs. Morgan executed her security deed, she had parted with all of her interest in the land except a life-estate, by means of her deed to J. Ii. Morgan, guardian for her children, recorded in 1915, about four years prior to the transaction with petitioner. Mrs. Morgan was therefore powerless to make any binding contract with Capel, further than to bind her life-estate. The order of court for reinvestment of the minors’ property was itself notice to Capel. Her deed conveying the remainder interest of her children was of record, and was constructive notice to petitioner, not as a lien which could by agreement of Mrs. Morgan be made subject to or junior to another lien, but it constituted actual outstanding title in the defendants. The life-estate terminated before the bringing of this suit. Therefore the court erred in rejecting the deed from evidence.
The foregoing rulings dispose of the entire case, and it is unnecessary to rule on other assignments of error, some of which would not occur again if there should be another trial.
Judgment reversed.
All the Justices concur, except Hill and Bell, JJ., who dissent.