
    Edith D. Blydenburgh and Ruth Seabury Blydenburgh, Respondents, v. Susan G. Seabury, Appellant, Impleaded with Maria Seabury and Others, Defendants.
    
      Subrogation — right of one having no interest in mortgaged premises to be subrogated to an interest in the mortgage to the extent of payments made by him thereon — who is a stranger and volunteer.
    
    A person who, not being the owner of the equity of redemption in mortgaged premises, pays the interest due under the mortgage and a portion of the principal, is not entitled to be subrogated to the rights of the holder of such mortgage in respect to such payments unless he makes the payments under an agreement that they shall constitute a lien upon the property or unless he is compelled to make such payments in order to protect an interest of his own in the mortgaged premises.
    The possibility that he may become the owner of the mortgaged premises as an heir of the existing owner does not give him such an interest.
    
      A stranger .or volunteer, within the meaning of the doctrine that the remedy of subrogation cannot be invoked by a mere stranger or volunteer, is one who in, nó event resulting from the existing.state of laflairs.can become liable lor the debt and whose property is not charged with the payment thereof and, cannot be sold therefor.
    Appeal by the defendant, Susan G. Seabury, from an interlocutory judgment 'of the Supreme Court in favor of the plaintiffs, ’ entered in the office of the clerk of the county of Suffolk on the 8th day of February, 1904, 'upon the decision, of the court,- rendered after a trial at the Kings County Special Term,, sustaining the plaintiffs’ demurrer to the new matter set up in: the answer as a defense.
    
      George E. Coney, for the appellant.
    
      W. M. Seabury, for the respondents.
   Willard Bartlett, J.:

This is an action to foreclose a mortgage given to secure a note of $5,600. The complaint alleges that, the mortgagee, the Southold Sayings Bank, assigned the mortgage and note to the- plaintiffs for $5,000 and- that there has been a default in the payment of interest, and demands judgment for foreclosure and sale in the usual form. The answer of the defendant. Susan G. Seabury denies' any knowledge or-information sufficient to form a belief as to the making or consideration of the assignment, and sets up certain new matter as a defense., That new matter may fairly be stated as follows:

The mortgaged property was formerly owned by Charles S. Seabury, who died intestate, leaving a widow, Ruth- II. Seabury, five children and one grandchild. Ruth II. Seabury afterward became the "sole owner of the premises. By subsequent conveyances the title passed to Ruth H. Seabury and her daughter Maria Seabury as joint tenants. Upon the death of Ruth H. Seabury the ownership, vested in Maria Seabury, who occupied the property together with her brother Charles E. Seabury'and the plaintiffs. Samuel Seabury, deceaséd, appellant’s -husband and testator, and brother of Maria Seabury, paid the. interest on the? mortgage from June 1,1876, to June 1, 1892, .at the request and for the benefit of Ruth H. Seabury, Maria Seabury and the plaintiffs, amounting to upwards of $7,270, and also made a payment of $600 on the principal. No part of these sums has been repaid.

The defense concludes with an allegation that the plaintiffs-have combined, consjúred and colluded with Maria Seabury to obtain the legal title to the note and mortgage, with the intent of depriving Samuel Seabury and the answering defendant, as his executrix and legatee, of their rights in the premises through the payments made by him on account of the principal and interest of the mortgage, and that they acquired the same with full knowledge of the facts hereinbefore alleged, and with notice of the rights of said Samuel Seabury. In the prayer for judgment the defendant asks to be subrogated to the rights of the holders of the mortgage to the extent of the sums.paid by Samuel Seabury on account of principal and interest, and to be permitted to share pro rata in the proceeds of the foreclosure sale.

The plaintiffs demurred to the foregoing defense, on the ground that it was insufficient in law upon the face thereof, a-nd the demurrer was sustained at the Special Term, and the defendant Susan G. Seabury appeals.

The appellant is not entitled to invoke the doctrine of subrogation here, unless her testator, Samuel Seabury, made the payments under an agreement that they should constitute a lien upon the property, or unless he was compelled to make the payment to protect an interest of his own in the ffiortgaged premises. (Schreyer v. Saunders, 39 App. Div. 8; Cole v. Malcolm, 66 N. Y. 363.) No such agreement is alleged in the defense which is attacked by the demurrer, and Samuel Seabury does not appear to have had any interest or estate whatever to protect in the property which was the subject of the mortgage. The possibility that he might become the owner of the premises as an heir of Maria Seabury did not give him such an interest. The remedy of subrogation has uniformly been denied to a mere stranger or volunteer with no interest to protect and under no obligation to pay; and a stranger or volunteér within the meaning of this doctrine has been held to be “ one who in no event resulting from the existing state of affairs can become liable for the - debt and whosé property is not charged with the payment thereof and. cannot be sold therefor.” (Arnold v. Green, 116 N. Y. 566.) Such, it seems to me, was the position of the' appellant’s testator, and, hence the court at .Special Term properly held, that the new matter pleaded by the defendant Susan. G. Seabury as a defense was insufficient in law.

I think the interlocutory judgment should be affirmed.

Hieschbebg., Pi J., Jenks and Hookeb, JJ., concurred.

Interlocutory judgment affirmed, with costs.  