(After stating the foregoing facts.)
1. In the case of Wilkins v. Gibson, 113 Ga. 31 (38 S. E. 384, 84 Am. St. R. 204), Mr. Justice Cobb, speaking for the court, after having discussed numerous cases in which the doctrine of subrogation was under consideration, said: “It is true, as stated above, that some of the courts have extended the doctrine farther than those above referred to. It has been said that subrogation was a ‘benevolent’ doctrine and equity would apply it in any ease in which justice required it; and under sanctio.n of this elastic expression cases can be found where it was applied without the semblance of an agreement. We think the safer and better rule to be, and we therefore hold, that subrogation will arise only in those cases where the party claiming it advanced the money to pay a debt which, in the event of default by the debtor, he would *350be bound to pay, or where he had some interest to protect, or where he advanced the money under an agreement, express or implied, made either with the debtor or creditor, that he would be subrogated to the rights and remedies of the creditor. See Ætna Insurance Co. v. Middleport, 124 U. S. 534 [8 Sup. Ct. 625, 31 L. ed. 537].” And in the ease from which the above extract is quoted, and in the decisions there cited and discussed, will be found a full and elaborate discussion of the doctrine of subrogation, and we do not think it necessary or that it would be profitable to discuss the principle at length in the present case. While it may seem to be a great hardship upon the creditor of the Hooks estate to deny him the application of the principle of subrogation which he invokes, there are no facts in his case which, upon legal or equitable principles, can be relied upon to authorize an extension of the rule. While, at the time of the death of Yirgil Clegg, Brown was a creditor of that estate, that fact did not bring him within that class of persons who could be said to have an interest in the estate of Clegg, to protect which it was necessary for him to pay off the debts owing by Clegg at the time of his death. Clearly no conventional subrogation arose in his favor merely from the payment of the debts of the estate, as there was no pretense of agreement between him and the creditors whose debts he paid, nor between him and Mrs. Hooks, that he should be subrogated to the rights of the holders of the debts. And a third consideration, it would seem, renders it conclusive against him that no equitable subrogation could be implied in his favor from the fact of the payment of the debts of the estate, when we consider at whose instance these debts were paid and the security taken for the repayment of the money advanced by Brown to pay the debts. Three important, vital, controlling facts unite in pointing to this conclusion as the only possible one under the evidence in this record and the law applicable to the issues involved : First, while the claims against the estate, as appears from the receipts given or memoranda made upon the accounts and notes, were paid by Brown, he was in fact lending the money to Mrs. Hooks; he became her creditor and she his debtor, and they recognized this relation, as was shown by papers executed by her to secure Brown for the loan made by him. In the second place, this loan was made by Brown to Mrs. Hooks to protect the in*351terest of Mrs. Hooks in the property, as heir at law of V. A. Clegg, and not of the interest which she took under the will, — to aid her in freeing the estate of the deceased from charges against it, and not to protect any interest of the plaintiffs in the present action; for Mrs. Hooks and Brown ignored all possibility of Mrs. Hooks’ children, who were remaindermen under the terms of the will of Clegg, having any right whatever in the estate. Mrs. Hooks was claiming adversely to the will, and adversely to any rights that her children might have had under the provisions of the will. Admitting that Mrs. Hooks and Brown acted in good faith, it still stands as a fact that their attitude towards the claims of the plaintiffs in this action was one of hostility to their rights and an absolute denial of the existence of those rights. And the third fact to which we have referred as being of vital importance is, that when Brown advanced the money to pay off the debts against the estate, he took not only Mrs. Hooks’ obligation to repay, but also took security — and solvent personal surety — upon that same obligation, which subsequently he voluntarily released. Hnder such a state of facts as this, under the broadest doctrine of subrogation recognized by the decisions of this court, the defendant in the court below was in no position to invoke the application of the doctrine. Whether Brown would have been in a better position if he had been ignorant of the existence of the will of Clegg which gave to Mrs. Hooks only a life-estate in the property of the testator, with remainder interest to the children, is a question which it is unnecessary to discuss; for it appears from the record that he had knowledge of the existence of the will; and although he may have acted in good faith when he decided that the will was a nullity, when he elected to act on that theory he undertook to decide for himself; he deliberately chose to act upon his own judgment as to a question which he could easily have had submitted to a court of competent jurisdiction, whose decision would have been final and would have afforded him protection. His judgment, as shown by the subsequent proceedings to set up the will, was error; and, like many others similarly situated, he will have to bear the consequences of the mistake that he made, however clearly it may appear that he acted with the best of intentions, and from kind, or even generous motives.
2. Having ruled that the defendant in the court below was *352not entitled, under the facts in the case, to be subrogated to the rights of the creditors whose claims he advanced the money to pay off, it follows that Greenfield was not a necessary party to the case. The only purpose for which the defendant could have insisted that Greenfield should be made a party was, that the respective equities of himself and Greenfield should be adjusted in this case; and when the right upon the part of Brown to be subrogated to the claims above referred to is eliminated, all necessity for making the representatives of Greenfield parties to the case is obviated.
3. We do not think it was necessary to show the assent of any executor to the legacies under the will, before the remaindermen could maintain the present action. The plaintiffs were remainder-men under the provisions of the will; the life-estate had terminated; the action was brought fourteen years after the death of the testator, and after the probate of the will. There is no executor of this estate, and no one has ever qualified as such. It appears from the findings of the auditor, and it is not disputed, that the debts of the estate had been paid. That being true, the legal title to this property was in the remaindermen, and they were entitled, by their next friend, to maintain this action.
4. The contention that the defendant had a prescriptive title to the property is without merit. While it is true he had been in possession of the land for seven years under color of title, the plaintiffs in the case were minors, and prescriptive rights could not ripen against them until the expiration of the statutory period after their majority; there being no one charged with the duty of bringing this action prior to the time at which it was actually instituted.
Other exceptions than those dealt with above are made in these .two cases, but none of them raise questions of such novelty as would render a discussion of them profitable or interesting. No error appears save that pointed out in the first division of this opinion; and consequently the judgment of the court below is affirmed in the first of the eases as they appear stated at the head of this opinion, and reversed on the other bill of exceptions, upon the grounds of error discussed in the first division of the opinion.
Judgment in Brown v. Hooks affirmed; in Hooks v. Brown reversed.
All the Justices concur.