[After taking similar ground to that taken by Mr. Rhodes, and arguing the equities of the Carr mortgage over the claim of appellants, made the following additional points:]
Equity will subrogate a party in the case supposed by the counsel for the appellant, but it is not the only case, by any means.
There are three kinds of subrogation:
1. That made by the owner of a thing of his own free will; example--when he voluntarily assigns it.
2. That which arises in consequence of the law, even without the consent of the owner; example--when a man pays a debt which could not be properly called his own, but which, nevertheless, it was his interest to pay, or which he might have been compelled to pay for another, the law subrogates him to all the rights of the creditor.
3. That which arises by the act of law, joined to the act of the debtor: as when the debtor borrows money expressly to pay off his debt, and with the intention of substituting the lender in the place of the old creditor. (1 Dall. 164; 6 Watts, 134; 7 Watts, 362; 6 Binn. 333, 422. See, also, Bouvier's Law Dictionary, Vol. 2d, 555, Edition of 1855, Title " Subrogation," and the numerous authorities there cited.) The third class of subrogation, above cited, it is submitted, is precisely the case of the respondent. (See, also, Harris v. Lee , 1 P. Wms. 482; Marlow v. Petfield , 1 Id. 558.)
The case of Dillon v. Byrne (5 Cal. 455,) is directly in point in this case, and the application to this case of the principles there laid down, it is respectfully submitted, must work an affirmance of the decree of the Court below.
JUDGES: Baldwin, J., delivered the opinion of the Court. Terry, C. J., and Field, J., concurring.
OPINION
BALDWIN, Judge
Carr, the plaintiff below, filed his bill to subject to sale a lot in San Jose. It seems that one Vermule bought this lot in 1853, of one Gordon, (one Patton holding the title, as trustee,) on credit, giving a mortgage for the purchase-money; in 1854, some $ 700 were due, after deducting the payments. For this balance Gordon sued Vermule, and obtained a decree of foreclosure and sale. On the day advertised for the sale, and just as it was coming off, Vermule borrowed some money of Carr, a part of which was to be applied to the payment of this decree and mortgage, and a mortgage to be executed to Carr on this property. The money, or enough of it, was so applied, and the mortgage of Gordon satisfied, when, or within a few minutes thereafter, Vermule--his wife not joining in the deed--conveyed by mortgage to Carr, in pursuance of this arrangement. At the time of this arrangement, the lot was occupied as a homestead. Vermule died shortly afterwards. The lot was set off, by proceedings under order of the Probate Court, to the widow, as homestead property. The claim of Carr was presented to the defendant Caldwell, administrator of Vermule, and allowed, but the estate was, and is, entirely insolvent. This suit was brought in the District Court. Carr claims that the mortgage of Gordon, having been paid off by money loaned by him to Vermule for that purpose, under agreement to give him a mortgage on the premises for his loan, he ought to be permitted to stand in the place of Gordon; and it would seem, on every principle of justice and equity, that he is right. We think his claim as clear in law as it is in justice. The proof shows that the execution of Carr's mortgage was made on the same day--one witness states within ten minutes--of the date of the payment of Gordon's decree. The satisfaction of Gordon's mortgage, and the execution of Carr's, may be said to be contemporaneous acts. It cannot be doubted that if the note and mortgage of Gordon had been renewed, the homestead would have continued bound. Can it make any difference in equity whether the first debt be renewed or another debt--if it be another--for the same sum created, to raise money to pay off the first? A clear title to the homestead could not vest until the payment of the purchase-money. In equity, and in effect, the advance of the money by Carr, under the circumstances, to pay off the purchase-money due, was equivalent to so much purchase-money. The debt was, to all intents and purposes, the same, though the creditor was changed. The authorities cited by the respondent, and especially 1 Dall. 164; 6 Watts, 134; 7 Watts, 362; and Dillon v. Byrne , 5 Cal. 455; 1 N.H. 168; support this view; and if we could find no case to support it, the sense and apparent justice of the rule would go far towards inducing us to adopt it.
Nor is the ground taken by the appellant, that the District Court had no jurisdiction, sustainable. This is not a claim, in the sense of the statute, against the estate of the deceased. The administrator was a proper party for the purpose of liquidating the amount of the indebtedness. But the main purpose of the bill is not to obtain a decree for, and sale of, property of the decedent, nor to affect assets in the hands of the administrator, but to subject land bound for the debt of the decedent, which does not belong to his estate, but the title to which is in the defendant, Jane Vermule. Whether the plaintiff can subject it or not, it does not belong to the estate of the decedent. None of the evils at which the statute aims in denying a right of suit to a party against an administrator has any application to such a case; while no course of proceeding that we are aware of could compel or authorize an administration of this property by the Probate Court, or the administrator. So that if this proceeding be not proper, we know of no other that would reach the case. A clear right would exist without a remedy. Besides, the administrator is not here to complain, and could not if he were.
We think the decree should be affirmed.