OpinioN,
Mu. Justice Mitchell :It is not disputed that Elton borrowed the money from Bor-land for the relief of the mortgaged premises by the payment of encumbrances prior to the deed to him. The legal title was in Elton, but appellants were in actual occupation, and claimed to be the beneficial owners. Conceding this claim, the property was certainly the primary debtor for the mortgage in suit. In 1884, Borland entered up the bond and issued execution against Elton’s personal property. To relieve this, Meurer raised the money, paid the amount to Borland’s attorney, and had the judgment marked to his use. Subsequently he brought the present suit.
The only contested fact was the nature of the payment to Borland, and as to that the evidence was so entirely one-sided that it cannot be said to have been contested at all, except in the merest technical sense.
What, then, were the rights of the parties ? The money that paid Borland was the money of Meurer, even though he raised it partly by the aid of securities belonging to Elton. But this is not material; for, even if Elton had paid Borland out of his own funds, for the relief of his other property, be would have had the same rights that Meurer now has. By appellants’ own version, as already said, Elton held the title only as trustee for them, and if, as such trustee, Elton was forced to pay the debt primarily due by the trust property, he was entitled to be subrogated to the creditor’s remedies for his reimbursement. To avoid any technical question, the transaction was carried *521through by Meurer’s aid, and in his name, and the marking to his use of the judgment on the bond, gave him not only the control of that judgment, but also the right to an assignment of the mortgage. Borland had no longer any interest in the mortgage, but it was not extinguished. It had passed in equity to Meurer, and carried with it the right to sue in Borland’s name. Her failure to authorize the suit, or even her objection to it, was of no moment. She had no right to object.
So far, we have considered the case without reference to the family agreement. But, even if appellants had had any standing before, that agreement and their acceptance of the title under it would have put an end to every vestige of claim on their part. Further insistanee that the mortgage was paid, was not only unfounded, but impudent. The learned judge left the question to the jury in a clear and comprehensive charge, of which appellants certainly have no cause to complain. He might well have refused to allow the jury to guess at the purpose of the payment to Borland, in the face of the evidence as to what took place on the occasion, and of appellants’ undisputed recognition of the validity of the mortgage in the family settlement.
The errors assigned may be briefly disposed of. The right to sue on the mortgage, as already shown, was in Meurer, but, as there had been no actual assignment, he was obliged to sue in the name of the mortgagee. He was entitled, therefore, to show his interest in the suit in that form. The surprise which would have entitled the appellants to a continuance had no existence in fact. The real controversy had been fully developed in the other court, on the motion to strike off the marking of the judgment to use of Meurer.
The last assignment of error is not in compliance with our rules, as it groups the refusal of six different points into one assignment. None of the points, however, could have been affirmed. They are all based on the view that an extinguishment or merger of the mortgage had taken place, but there was no merger in law, as Meurer, and not Elton, was the party actually making the payment, and even without this technical protection, as Elton would only have been paying what Stokes or his property ought to have paid, equity would not have permitted an extinguishment against Elton’s interest.
Judgment affirmed.