Fears v. Albea

Citations

• 69 Tex. 437
• 6 S.W. 286
• 1887 Tex. LEXIS 847

Syllabus

<p>1. Subrogation. — One having an interest in a debt who in pursuance of an agreement between himself and the debtor discharges the debt, even before it is due, is thereby subrogated to the rights of the creditor. If he should discharge a debt secured by prior mortgage, he is thereby subrogated to the right of the prior mortgagee to enforce repayment of the debt, and this, in the absence of a formal transfer of the mortgage. He will hold the title secured as against subsequent incumbrances, and this, when he has acquired the equity of redemption.</p> <p>3. Samb. — If one advancing money to pay on a mortgage under an agreement with the owner of the equity of redemption that it should be assigned to him as security for the money advanced, takes a discharge of the mortgage, he is still entitled to be subrogated to the rights of the mortgagee, and have the discharge vacated.</p> <p>3. Equity. — Equity will not permit the rights of a party to be lost through mistake, or ignorance of a fact, when the relief can not operate to the prejudice of third parties.</p> <p>4. Pleading-. — When from an inspection of an entire plea it is manifest that a wrong name has been written through mistake, and it is obvious what name was intended, without looking beyond the plea itself, the error is immaterial.</p> <p>•S. New Trial. — A new trial will not be granted on the ground of surprise, because of the testimony of a witness, being different from what counsel understood from the witness before the trial would be his testimony, when there was no evidence of an intention on the part of the witness to deceive.</p> <p><3. New Trial. — A new trial will not be granted to enable one to procure evidence which ordinary diligence would have secured on the trial, • especially when it is cumulative.</p>