Bolman v. Lohman

SOMEEYILLE, J.

— The bill is one filed by the complainant, Mrs. Augusta Lohman, primarily to foreclose a mortgage on certain real estate, executed to secure money alleged to have been loaned by her to one of the defendants, Mrs. Louisa Bolman. The averment of the bill, as originally filed, was that the complainant was a widow. An amendment to the bill was allowed by the chancellor, showing that the complainant was a married woman, living apart from her husband ; that the money loaned was her statutory separate estate, over which her husband had never sought to exercise any control or dominion; and that she had never assumed the name of the husband, but *510was then and had long been known by the name of Lohman. The husband, one Peter Craft, was made a co-eomplainant to the bill, however, by amendment, on motion, which was allowed against the objection of the defendants.

The allowance of these amendments was, in our opinion, free from objection. The only limit to this right under our •statutes, as we have many times said, is, that there must not be an entire change of parties, nor the substitution of an entirely new cause of action. — Dowling v. Blackman, 70 Ala. 303; Long v. Patterson, 51 Ala. 414; Code, 1876, § 3156. The only change wrought by the 'first amendment is in the description of the complainant’s title, and of the capacity in which she sues. Her original title is that of afemme sole; the new title, that of a femme covert. The only difference between the two is created by the rights and relationship of the husband as statutory trustee of the wife. The case made by the ftmended bill can, in no proper sense, be said to be such a radical departure from that made by the original bill, as to constitute an ■entirely new case. Each aspect entitles the complainant to .substantially the same relief, and the same defenses are applicable to each. — Pitts v. Powledge, 56 Ala. 147; King v. Avery, 37 Ala. 169; Adams v. Sayre, 70 Ala. 318.

The husband was a proper party plaintiff, and there was no error in permitting his joinder with the wife in a court of •equity. The case is not distinguishable from Sawyers v. Baker, 72 Ala. 49.

The bill is not objectionable on the ground of multifariousness. Its purpose is single — -the enforcement of a mortgage lien on property claimed by the defendants,' executed to secure the payment of money alleged to have been borrowed from the mortgagee. It is true that there are two securities, the benefit •of which is claimed in favor of the complainants. The first is a mortgage executed by Mrs. Bolman, upon her interest in the property, which was only a life-estate, created by the will of her deceased husband. The second was a mortgage executed by Mrs. Bolman and her husband, prior to his death, to' secure ■a debt due to a Mrs. Frank, to the benefit of which complainants claim to be entitled by subrogation, upon the ground that it was paid and satisfied by their money borrowed for the purpose of paying it, under such circumstances as to create this equity in their favor. There is no repugnancy whatever between the two securities, or the liens claimed under or through them. The one is claimed additional to, and cumulative of the other. It is a recognized rule, that the objection for multifariousness does not hold, “ where one general right is claimed by the plaintiff, although the defendants may have separate .and distinct rights.” — Dimmock v. Bixby, 20 Pick. 377; Lar-*511kins v. Biddle, 21 Ala. 252. In Randle v. Boyd, 73 Ala. 282, we said: “ Where the object of the suit is single, it is no objection that the different defendants have separate interests in distinct and independent questions, provided they are all connected with and arise out of the single object of the suit.” Kingsbury v. Flowers, 65 Ala. 479. The reason of the rule is, that courts of equity are averse to . a multiplicity of suits, and always 'strive to prevent unnecessary litigation, as far as possible, without, at the same time, vexing parties with the litigation of questions with which they have no concern.' — Fellows v. Fellows, 15 Amer. Dec. 428-429, note; Randle v. Boyd, supra.

All the defendants claimed an interest in the mortgaged property — Mrs. Bolman a life-estate, and her children the remainder — and these interests would be affected by the enforcement of complainants’ mortgage liens. There was, therefore, no improper joinder of parties defendant, under the principles above announced.

To entitle the complainants to be subrogated to the lien of the mortgage executed to Mrs. Frank by Bolman and wife, it manifestly required more than the mere appropriation of the borrowed money to the payment of the mortgage. The lender of money which is applied by the borrower in payment of a mortgage, or other lien on land, is not generally subrogated to the lien which is thus extinguished, merely upon the strength of the fact that his funds have discharged the incumbrance. Sheldon on Subrog. § 243; Griffin v. Proctor, 14 Bush (Ky.), 571; Chapman v. Abrahams, 61 Ala. 108. This is analogous to the rule, that a resulting trust never accrues in favor of one who lends money to another for the purchase of land. The very fact of a loan rebuts and contradicts the implication of a trust, which might otherwise be presumptively raised by law. Whaley v. Whaley, 71 Ala. 159. Subrogation is said to be the creature of equity, and not of contract, and is based on principles of j nstiee and fair dealing. “ It is nothing more than the putting by transfer one person in the place of another, and investing the former, in promotion of fair dealing, with the equitable rights of the latter.” — McWilliams v. Jenkins, 72 Ala. 480, 487. There is clearly no scope for the operation of the principle in a case of ordinary borrowing, where there is no fraud or misrepresentation, and the borrower creates in favor of the lender a new and valid security, although the funds are used in ordér to discharge a prior incumbrance. But the rule is settled that, where money is expressly advanced in order to extinguish a prior incumbrance, and is used for this purpose, with the just expectation on the part of the lender of obtaining a valid security ; or where its payment is secured 'by a mortgage, which *512for any reason is adjudged to be defective, the lender or mortgagee may be subrogated to the rights of the prior incumbrancer, whose claim he has satisfied, there being no intervening equity to prevent. — Kitchell v. Mudgett, 37 Mich. 82; Sheldon on Subrog. §§ 8, 20; Dixon on Subrog. 165. So, where there is misrepresentation and fraud, by which one has been induced to-advance money to discharge a lien on property, and the money is so appropriated, it is common for equity to protect the lender, by subrogating him to the lien which his money has been used to extinguish. Less than this would be to encourage fraud by placing a premium upon artifice and dishonesty.— Wolfe v. Walter, 56 Mo. 292; Sheldon on Sub. §247. In McWilliams v. Jenkins, 72 Ala. 480, where the funds of one party were appropriated, without his consent, to discharge a lien on land, he was held entitled to subrogation, by being declared the equitable assignee of the lien for reimbursement. The discharge of the lien was held to be a purchase for his benefit, rather than an extinguishment —Irvin v. Bailey, 72 Ala. 467.

The bill, in the present case, alleges that the money of complainants was borrowed for the purpose of discharging the mortgage of Mrs. Frank, and was used for this end. It also alleges, that this loan was procured by false representations on the part of Mrs. Bolman, as to the interest which she had in the property. This she represented to be a fee-simple, whereas it was, in truth and fact, only a life-estate. Under the principle above announced, the complainants, in our opinion, should be subrogated to the lien of the mortgage which has been satisfied with their money, borrowed as it was through the device of misrepresentation.

There are some other grounds of demurrer to the bill, which are obviously without merit, and require no discussion. The demurrer was properly overruled by the chanceller, in all its parts — both to the original and the amended bill.

The assignments of error raise no question as to the rulings of the chancellor on the demurrer to the cross-bill. W'e do not, therefore, discuss this portion of his decree.

There is no error in the record, and the decree is affirmed.