The majority opinion is correct down to the paragraph which reads: "But, while the notes sued on, if representing an ordinary indebtedness, would be barred by limitation, it does not follow in this case that appellee Mrs. Burch is without a remedy."
Beginning with the paragraph as just identified, and continuing to the conclusion of the opinion, the majority has given Mrs. Burch relief by subrogation; and to that portion of the opinion I respectfully dissent. Here are my reasons:
1. Mrs. Burch did not ask for subrogation. The case was not tried on that theory in the lower court, and was not briefed on that theory in this court. The majority decided that Mrs. Burch would be barred by limitations, except for the theory of subrogation, and then proceeded to give her relief by subrogation, which was a right she had never claimed, and which the appellant had no occasion or opportunity to disprove or refute. *Page 929
2. Subrogation does not apply to the facts here presented. The improvement district had title to the property when it dealt with Leuken. The tax lien of the district had been extinguished by the act of the district in purchasing the property at the foreclosure sale. The district's "lien" for unpaid assessments became extinguished when the district purchased the property at the sale which foreclosed that lien. So when Mrs. Burch made a loan of $600 to Leuken, the proceeds of the loan went to purchase the property and not merely to redeem from a tax delinquency. By applying subrogation, the majority is attempting to let the district keep its lien and foreclose it at the same time; and, in effect, is allowing Mrs. Burch to have her cake and eat it at the same time.
3. Hart v. Sternberg, 205 Ark. 929, 171 S.W.2d 475, is not ruling here, because in that case the rights of a person in possession were considered as against one who, by payment, had made such continued possession possible. Here the majority is letting Mrs. Burch acquire rights from the district which the district had itself extinguished when it foreclosed its lien.
4. The case of Troyer v. Bank of DeQueen, 170 Ark. 703,281 S.W. 14, is not cited by the majority, but is the case that applies to the situation here. Between the lien of the improvement district in the case at bar and the mortgage of Mrs. Burch, there is the intervening lien of the Building and Loan Association, and that intervening lien stands as a wall to prevent any subrogation.
For these reasons, I respectfully dissent from so much of the majority opinion as allows Mrs. Burch to prevail under the theory of subrogation. *Page 930