
    R. L. M. Nixon v. E. C. Jullian.
    1. Subeogation. Pw'chaser under ctn iiwalid contract. Relieving incum-brance.
    
    Subrog-ation may be allowed in favor of one whose right rests on an invalid or merely verbal contract for a conveyance of the land, which he has freed from incumbrance.
    2. Same. Discharge of incumbrance. Case.
    
    In a suit to foreclose a recorded mortgage on land, a defendant who, without actual knowledge thereof, bought the land from the individuals composing an organized but unincorporated company, to which the mortg-agor had subsequently conveyed it by warranty deed, and who, to release the land, pays the money due complain- " ant into court, is entitled, on a cross bill filed for that purpose, to a decree subrogating him to the rights of complainant both as to the debt and the mortgage, and this, although, in aid of his defective title, he had g-otten from the mortgagor a quitclaim deed.
    Fhom the chancery court of Harrison county.
    Hon. W. T. Houston, Chancellor.
    The opinion states the facts.
    
      Calhoon & Green, for appellant.
    The court below seems to have created a warranty against incumbrances, contrary to the express language of the deed, and to have worked out subrogation on such creation. Chapman v. Sims, '53 Miss., 154, merely holds that a quitclaim deed does not by itself imply a doubtful title, but it is not authority for the creation of an express warranty contrary to its terms. Nor does Wright v. Bramder, 62 Miss., 82, sustain such a view. There could be no subrogation to the warranty of the canning company, for appellee did not succeed to the rights of said company, or claim title under its vvarranty, but claims directly from appellant and adversely to that company. Besides, all parties recognized the conveyance to said company as invalid, and Jullian himself, to fix its invalidity, returned to the persons composing it the money they had paid on the purchase. Said persons and said company are now estopped to set up their title to the property, but estoppel implies antagonism and not sub-rogation. Appellee is a purchaser by quitclaim from the grantor of mortgaged premises, with notice and without warranty, and for such there can be no subrogation to the rights of the mortgagee.
    
      W. A. White, for appellee.
    If we admit the right of Seal, the complainant', to recover, the defendant, Nixon, should have been required to refund to Jullian, not only the amount decreed to be paid by her, but the costs of suit as well, and a cross bill was the proper proceeding by which to compel her to reimburse him. Wright v. Brcmder, 62 Miss., 82. Jullian, as the purchaser from the canning company, to whom defendant, Nixon, made a warranty deed after procuring from her a quitclaim, which was effectual to convey to him the legal title, was entitled to a decree enforcing her contract of warranty. A quitclaim does not imply a doubtful title, but is effectual to convey whatever title the creditor has. Chapman v. Sims, 53 Miss., 154; Devlin on Deeds, secs. 672, 673. Jullian has been forced, in order to protect his property, which he had bought from the mortgagor, to pay off a mortgage, and he should be subrogated to all the rights of the mortgagee. Boss v. Wilson, 7 Smed. & M., 753; Staples v. Fox, 45 Miss., 667; 2 Wash, on Real Prop,, 225; 24 Am. & Eng. Ene. L., 248; 3 Pom. Eq. Jur., sec. 1212. Jullian is likewise entitled to enforce payment of the debt. 24 Am. & Eng. Ene. L., 192; lb., 255; L. R. A., 288.
   Cooper, C. J.,

delivered the opinion of the court.

On the thirtieth day of March, 1877, the appellant was the owner of the land described, in the pleadings, and on that day mortgaged it to one Beard to secure the payment of a note for two hundred dollars executed by her on that day to him. The mortgage was duly recorded. Beard assigned the note to Seal, who exhibited his bill in this cause against the appellant, Nixon, the mortgagor and against the appellee, who, the bill states, claims some interest in the land. The prayer of the bill is that the mortgagor may be decreed to pay the amount due on the note, and, in default thereof, that the land may be sold therefor. Jullian answered the bill and made his answer a cross bill against the complainant and his co-defendant, Nixon. By his cross bill he charges that, after the execution of the mortgage, Nixon' sold the land to an organized but unincorporated company, known as the Knights of Labor Canning Company, and executed to said company a warranty deed. The consideration of this conveyance was the sum of four hundred dollars, of which, sum the company paid to Nixon two hundred dollars and for the balance executed a note payable twelve months after date with interest at eight per cent, per annum; that the Knights of Labor Canning Company was never incorporated, but that cross complainant purchased the land from the persons composing said company, and paid to them the amount they had paid to Nixon, and assumed to pay, and afterwards did pay, to Nixon the balance due to her by the said parties, whereupon she conveyed, by quitclaim deed, the land; that, at the time he bought and paid for said land, he was ignorant of the existence of the mortgage sought to be foreclosed. The cross complainant offered to pay into court any sum that might be found due to the complainant, and asked that, as to the sum so found due and to be paid by him, he might be substituted and subrogated to the rights of the complainant against his co-defendant Nixon.

With his cross bill the cross complainant filed as exhibits (1) a conveyance of the land with warranty of title executed by Nixon to the Knights of Labor Canning Company, (2) a quitclaim deed executed by her conveying the same land to Jullian, in which it is recited that she had previously conveyed the land to the Knights of Labor Canning Company, but that it then appeared that no such company had been chartered. After reciting the consideration upon which the conveyance to the canning company had been made, and that two hundred dollars had been paid, leaving two hundred dollars due by the canning company, of which sum Jullian had then paid one hundred dollars, the deed continued in these words: “Now, for said sum above stated, I hereby release and quitclaim unto E. C. Jullian, and to his heirs, forever, the foregoing described piece of land, all the interest I have in the same, without warranty of title. ’ ’ By her answer to the cross bill Nixon says: ‘ ‘ She admits that on the thirteenth day of October, 1887, she conveyed the land mentioned in the bill by warranty deed to the Knights of Labor Canning Company, for the sum of four. hundred dollars; two hundred dollars were paid and the balance secured by note. She was informed that there was no such company and the deed was void for that reason. She does not know, of her own knowledge, from whom Jullian purchased, but denies that he got any title. She admits that Jullian paid the amount due and interest to her and that she made to him a quitclaim deed to the same land as stated. ’ ’

The cause was set down for hearing on pleadings and exhibits. Jullian had paid into court the sum due on the note with interest and costs of court.

The chancellor decreed that the complainant should be paid out of the sum in court so deposited by Jullian, and that Jul-lian should be subrogated to the right of complainant as against Nixon, and on the cross bill of Jullian rendered a personal decree against her. From that decree she appeals.

The averment of the cross complainant that he had purchased the land from the persons interested in the Knights of Labor Canning Company, is not denied by the answer of the appellant, and is, under our statute, to -be taken as admitted. Reynolds v. Nelson, 41 Miss., 83; McAllister v. Clopton, 51 Ib., 259; Mead v. Day, 54 Ib., 58.

Counsel for appellant contend that the appellee was a purchaser from the appellant, and, having accepted from her a quitclaim deed, secured only such right and estate as the appellant then had in the land, and, since the land was then bound by the recorded mortgage, he acquired nothing except the equity of redemption, and, not having protected himself by requiring a deed with covenants of warranty, either from the Knights of Labor Canning Company or from appellant, is without right to relief. The vice of this contention is in the false premise on which it rests. Jullian did not buy the land from Nixon, but from those to whom she had conveyed it by deed with covenants of warranty. She was his grantor but not his vendor. As between herself and those to whom she sold the land, the debt evidenced by the note here sued on was indisputably her debt, and if they had paid it, either voluntarily or under coercion, there could bo no question of their right to recover the amount so paid out, either by assumpsit at law or by bill in chancery. Kirkpatrik v. Miller, 50 Miss., 521; Dyer v. Britton, 53 Ib., 270. By what magic this debt ceased to be hers, what discharged her from the legal and equitable obligation to pay it in exoneration of the land, is not suggested. But it is argued that the appellee does not occupy such relation to the land as to entitle him to invoke the aid of the law to compel her to pay it. If Seal, the holder of the note, had assigned it to Jullian in consideration of the payment to him of the money it secured, and Jullian had sued at law on the note, it is evident that he would have been entitled to recover, and this would have been because the debt was her debt, and, as between herself and the owner of the land, she was the principal and he the surety by reason of the charge resting on his property.

The circumstances are such as appeal strongly to a court of equity for relief, and, having all the parties before it, the court very properly granted full relief by administering the salutary remedy of subrogation. That the appellee had not secured a technical assignment of the covenant of warranty contained in appellant’s conveyance to the Knight’s of Labor Canning Company is not material. Subrogation has been allowed to one holding an invalid or verbal contract for the conveyance of the land hé has freed from incumbrance. Sheldon on Subrogation, § 3 6a; Champlin v. Williams, 9 Penn. St., 341; Stewart v. Fellows, 128 Ills., 480; Dillon v. Warfel, 71 Iowa, 106.

The land is the property of the appellee; the debt is the debt of appellant. To protect his land appellee is bound to pay appellant's debt, and, under the circumstances, a court of equity will work out justice by administering the equitable relief of subrogation.

Affirmed.  