Shaffer v. McCloskey

Citations

• 101 Cal. 576
• 36 P. 196
• 1894 Cal. LEXIS 1079

Syllabus

<p>Mortgage—Satisfaction by Cotenant—Deed of Trust—Subrogation.— Where two tenants in common have executed a mortgage to secure the purchase money of the land owned by them as cotenants, and one of them, being unable to pay his share of the mortgage, has conveyed his interest in the land to his cotenant, in consideration that the latter shall pay the full amount remaining due on the mortgage, and the mortgage is afterwards satisfied of record upon such payment, without knowledge on the part of the person making the payment that his grantor had previously made a deed of trust of his half of the land, the person paying the mortgage may maintain an action to revive it, and to be subrogated to the rights of the assignee of the mortgage as against the holder of the deed of trust.</p> <p>Id.—Rights of Subsequent Lien-holder.—A subsequent lien-holder who has not acquired his lien after a prior mortgage has been marked satisfied, and has not been led by a clear record to invest money on the land, but who took the encumbrance while the mortgage was in full legal existence, recorded and unsatisfied, and with perfect understanding that it was a valid lien, will not be permitted in equity to take advantage of an inadvertence or mistake in the satisfaction of the mortgage.</p> <p>Id.—Merger.—In respect to the merger of a lesser estate in a greater, equity is not controlled by the rules of law; but is governed by the actual or presumed intention of the person in whom the interests are united.</p> <p>Id.—Equitable Subrogation.—One who is forced to pay the debt of another in order to protect his own interest, and who is not a mere volunteer or intermeddler, is entitled in equity to be subrogated to the debt.</p> <p>Id.—Record of Subsequent Lien—Right of Subrogation Unaffected.— The fact that a subsequent lien or deed of trust was recorded is immaterial to the right of a payer to revive a prior satisfied lien, and to be subrogated to such prior lien.</p> <p>Id.—Change of Legal Right