
    Warne, Willis & Co. v. A. W. Morgan.
    No. 13,464.
    (75 Pac. 480.)
    SYLLABUS BY THE COURT.
    
      Mortgage — Party Paying If eld to be Subrogated to Bights of Mortgagee. Where one loans money which is actually used in paying off a valid encumbrance on property, whether real or personal, exempt or otherwise, with an agreement with the borrower that he shall have a valid mortgage on such property, and a mortgage is given which afterward proves to be void because of defective execution, such mortgagee is entitled, upon application, to be subrogated to the rights of the mortgagee whose mortgage he paid to the amount paid by him for the release.
    Error from Greenwood district court; G. P. Airman, judge.
    Opinion filed February 6, 1904.
    Reversed.
    
      Fuller & Jackson, for plaintiffs in error.
    
      Howard J. Hodgson, and Lew. E. Clogston, for defendant in error.
   The opinion of the court was delivered by

G-reene, J. :

Warne, Willis & Oo. brought this action to foreclose a chattel mortgage for $700 on certain personal property, a portion of which was exempt.. The court rendered judgment against the'plaintiffs as-to the exempt property, to reverse which they prosecute this proceeding.

It appears from the record that the wife of the' mortgagor did not sign the mortgage sought to be foreclosed. At the time this mortgage was given there' was another on the same property, amounting to* $281.20, given by the defendant and his wife to the Eureka Bank. It was agreed that the plaintiffs should! have a mortgage on the property mortgaged to the bank, and for the purpose of having the bank release its mortgage, and to secure a first mortgage on that property, the plaintiffs, in payment of $700 to the defendant, gave him a check for the amount of the mortgage held by the bank, payable to the Eureka Bank, which was accepted and the mortgage released. The balance of the money was paid in cash to the,, defendant.

The plaintiffs, by way of amendment .to their petition, set out the above facts and asked that they be subrogated to the rights of the bank to the amount paid by them in satisfaction of its mortgage. The evidence showed that it was agreed that a part of the money loaned was to be used in paying the bank’s mortgage on that property, and the money was so applied. The only question involved is whether the plaintiffs are entitled to be subrogated to the rights-of the bank whose valid mortgage they paid. This-question has been more than once answered in the affirmative by this court. (Yaple v. Stephens, 36 Kan. 680, 14 Pac. 222; Crippen v. Chappel, 35 id. 495, 11 Pac. 453, 57 Am. Rep. 187; Farm Land Co. v. Elsbree, 55 id. 562, 40 Pac. 906; Everston v. Central Bank, 33 id. 352, 6 Pac. 605; Zinkeison v. Lewis, 63 id. 590, 66 Pac. 644.)

For these reasons the judgment of the court is reversed, and the cause remanded for further proceedings.

All the Justices concurring. ■  