
    No. 294
    MILLER v. SCOTT
    Ohio Appeals, 9th Dist., Summit County
    No. 821.
    Decided Jan. 31, 1924
    1123. SUBROGATION — Lien acquired by subrogation from paying mortgage held prior to subsequent judgment creditor.
    Attorneys — J. M. Poulson, for Miller; Rockwell & Grant and J. C. Linton, for Scott et al.
   WASHBURN, J.

Epitomized Opinion

Published Only in Ohio Law Abstract

Original action in equity in the Common Pleas brought by Clara F. Miller to enforce the lien of a judgment obtained by her against Alen R. Scott and Hazel M. Scott. Scott owned land tfn which there was a mortgage running to one Patterson. On Feb. 14,1922, Miller filed suit on a claim against Scott. At that time Scott was negotiating a loan from his father-in-law, John Blank, with which to pay off the Patterson mortgage. On Feb. 16, 1922, the money was loaned by Blank to Scott and the mortgage to Patterson was paid. In return for the money loaned by Blank, Scott executed a mortgage on the land to Blank but not until June 7, 1922.

On July 10, 1922, Miller obtained judgment in her suit against Scott. An Aug. 10,1922, the mortgage from Scott to Blank was filed for record; The judgment obtained by Miller became a lien on the land as of April 3, 1922, the first day of the term. Miller contended that her judgment lien was prior to the mortgage lien of Blank. Blank contended that he was entitled to be subrogated to the right of Patterson under the latter’s mortgage, which of course antedated Miller’s judgment. The 'case was brought on'appeal to the Court of Appeals, which held:

It is clear that the transaction by Blank and Scott and Patterson was made in good faith. It is the rule that one who pays off a prior in-cumbrance upon property is entitled in equity to be subrogated to all the rights of the prior incumbrancer. This right will not prevail against an intervening bona fide purchaser without notice. A bona fide lien holder who acquired his lien after the release of the old mortgage, without notice, is not in the position of a bona fide purchaser. Her burdens are not increased by the allowance of the sub-rogation. Blank is entitled to be subrogated to the lien of the Patterson mortgage; Miller’s judgment lien attached subject to this equity of Blank’s. Blank’s equity will therefore prevail. Decree may be drawn accordingly.  