Boley v. Daniel

Citations

• 72 Fla. 121

Syllabus

<p>1. Subrogation is the substitution of one person in the place of another with reference to a lawful claim or right.</p> <p>2. Subrogation arises by operation of law where one having a liability or a right or a fiduciary relation in the premises, pays a debt due by another under such circumstances that he is in equity entitled to the security or obligation held by the creditor whom he has paid. This is called legal subrogation.</p> <p>3. Conventional subrogation depends upon a lawful contract and occurs where one having no interest in or relation to the matter, pays the debt of another, and by agreement is entitled to the securities and rights of the creditor so paid.</p> <p>4. When a first mortgage lien existing against real estate is paid off and the lien discharged, the lien of a second mortgage thereon becomes at once, by operation of law, a first lien on the property; and this first lien, and the right to enforce it as such, are vested rights.</p> <p>5. Courts of equity will not apply the doctrine of subrogation where to do so would be to deprive a party of a legal right.</p> <p>6. Where a party who is under no duty legal or otherwise, to pay a first mortgage debt, and has no interest in the property, loans money that is used to pay off such first mortgage, and takes a mortgage on the same and other property, with an understanding with the mortgagor “that he was to have a first lien on the property covered by said mortgage,” and “in the belief that there were no other liens on the property caused to be satisfied on record the first mortgage,” with no agreement that the security of the first mortgage shall be kept alive for his benefit, there is no clear showing of a right to a conventional subrogation.</p>