Union Mortgage, Banking & Trust Co. v. Peters & Trezevant

Citations

• 72 Miss. 1058

Syllabus

<p>1. Subrogation. Arise», when. Strangers and volunteers.</p> <p>Equitable subrogation does not arise out of contract, but is a creation of tbe court of equity, and is applied, in the absence of an agreement between the parties, where, otherwise, there would be a manifest failure of justice. It is never enforced for the benefit of strangers or mere volunteers, nor can it displace the real contract of the parties — as, where the security contracted for is given but its legal effect is not that intended. Howell v. Bush, 54 Miss., 437, distinguished.</p> <p>2. Same. Aclrutmces lo -petty prior ineumhreonee. VoVunteer.</p> <p>One who, on the security of a mortgage, and at the instance of the debtor, advances money to be used in £>ayment of a prior incum-brance on the mortgaged property, is not a volunteer or intermed-dler in the debtor’s affairs within the rule denying’ to such the benefit of subrogation.</p> <p>3.Same. Admwnces to pay prior incumbís mee. Ga/ncellation.</p> <p>Where money is loaned under an agreement that it is to be used in paying off a first lien on the borrower’s property, and that the lender is to have a mortgag-e thereon, as primary security, the borrower representing- that the holder of a second mortgage had ag-reed that the new mortg-age should have priority, and it turns out that this is untrue, if the money advanced is applied in the payment of the first incumbrance, and mortgag-e is taken by the lender, as ag-reed, he will, as against the borrower and the holder of the second mortgag-e, be subrogated to the lien of the prior in-cumbrance. which will be kept alive for his protection, although it was not expected or intended that he would be subrogated thereto, and, althoug-h, the first mortgage was canceled as ag-reed. Cannier v. SalKs, 54 Miss., 446, cited.</p> <p>4. Subrogation. Intervening lienor; when not affected. Doctrine applied.</p> <p>In such case the holder of the second mortgage, being placed in no worse position by the transaction,