
    Kittie M. Perkins, Resp’t, v. George Hall and others, Appl’ts.
    
    
      (Court of Appeals,
    
    
      Filed May 10, 1887.)
    
    1. Subrogation—Right to resting on usurious agreement.
    Whenever an equitable right to subrogation cannot be made out without resorting to some agreement or security which is void for usury, no such equity exists
    2. Same.
    Payn Bigelow agreed to pay off certain mortgages on real estate belonging to Hall, the latter agreeing to secure him by a mortgage for the amount advanced and $150 bonus. In pursuance of the agreement a mortgage for $3,000 was executed, providing that Bigelow was to assume and pay the liens first named. He paid a portion of them and they were discharged of record, and afterwards he brought an action for the foreclosure of the $3,000 mortgage, and it was declared usurious. He then assigned to the plaintiff his rights arising out of the satisfaction of the liens, and she obtained a judgment declaring her assignor entitled to be subrogated to such prior liens so paid by him and entitled to enforce the same. Held, error.
    
      Appeal from supreme court, general term, fourth depart-^ ment.
    
      John C. Hunt, for app’lts; J. R. Shea, for resp’t.
    
      
       Reversing 35 Hun, 663,
    
   Rapallo, J.

The plaintiff, as assignee of Payn Bigeiow,' sought by this action to revive and be subrogated to and enforce certain liens upon real estate" of the defendant Hall, which Bigelow had paid, and procured to be discharged of record under an agreement with Hall. . These liens consisted of two mortgages executed by Hall, and of certain legacies which were charges on the real estate in question. It appears, by the findings of the trial judge, that on the 17th of October, 1874, an agreement was entered into between Hall and Bigelow whereby Bigelow agreed to advance the amount of the said liens, and pay them off. and also to advance to said Hall the sum of $919.71. in cash, and Hall agreed that, to secure the payment of said advances, and of the further sum of $150 as a bonus, Hall and his wife would execute a mortgage on said premises to Bigelqw. In pursuance of this agreement, the mortgage was executed for $3,000 and interest, which amount included the amount then due on said liens, and the cash advance of $919.71, and the bonus of $150. This mortgage of $3,000 provided, in express terms, that, as part of the consideration thereof, Bigelow was to assume and pay the before-mentioned liens. Bigelow paid a portion of the liens, and they were discharged of record; and he afterwards brought an action against Hall and others for the foreclosure of the $3,000 mortgage, in which action such mortgage was adjudged void for usury. After that adjudication he assigned to the plaintiff his cause of action arising out of the satisfaction of said hens, and she thereupon brought this action, and judgment was rendered in her favor in the supreme court, adjudging that her assignor, having paid said hens, and, there being a junior mortgage, was entitled to be subrogated to said prior liens so paid by him, and entitled to enforce the same.

We are of opinion that this judgment was erroneous. The only claim of Bigelow to be junior mortgagee rested upon his $3,000 mortgage, which was adjudged to be void for usury, and upon his agreement to pay off the prior hens, which agreement was part of the usurious contract. It was necessary to resort to this usurious contract and security to make out any equitable right in Bigelow to subrogation. If they were left out of the case he would stand as a mere volunteer, and would have no right to subrogation, Acer v. Hotchkiss (97 N. Y , 395; Gans v. Thieme (93 N. Y , 232); and whenever an equitable right to subrogation cannot bo made out without resorting to some agreement or security which is void for usury, no such equity exists. We think the case of Baldwin v. Moffett (94 N. Y., 83,) is decisive on this point. None of the cases cited on the respondent’s brief, or in the opinion at general term conflict with this principle, or sustain the claim of the respondent.

i In the cases of Ellsworth v. Lockwood (42 N. Y., 89); Barnes v. Mott (64 N. Y., 397); Cole v. Malcolm (66 N. Y., 363); Gans v. Thieme (93 N. Y., 225), no question of usury was involved, and they have no special bearing on the case. Cook v. Barnes (36 N. Y., 520); Winsted Bank v. Webb (39 N. Y., 325); Gerwig v Sitterly (56 N. Y., 214); Real Estate Trust Co. v Keech (69 N. Y., 248; Russell v. Nelson (99 N. Y., 119), simply hold that when an existing valid debt is renewed, or the time of payment extended, or a valid security held therefor is canceled by means of a subsequent agreement or security which is void for usury, the original debt or is not invalidated, and, if it has been discharged by means of the usurious security, it will be revived and enforced. In Patterson v. Birdsall (64 N. Y., 294), the plaintiff was the holder of a valid junior incumbrance, which entitled him, without reference to the usurious agreement, to redeem from prior incumbrances, and be subrogated thereto.

In the case now before us the right of the assignor of the plaintiff to pay the prior incumbrances, and his claim to subrogation, rested wholly upon the usurious agreement. He had no position of junior mortgagee, except under the mortgage, which was adjudged void for usury. The judgment should be reversed, and a new trial ordered; costs to abide the event.

All concur, except Ruger, C. J., not sitting.  