So where the legatees and devisees have been put upon an equality, their liability to contribute among themselves is equal.124 But a residuary devisee is not entitled in this country to contribution from the other devisees.125 So where a part of the deceased's land is primarily charged with his debts, the devisee or heir of this property cannot, upon its being taken for the payment of the debts, claim contribution therefor from the specific devisees or legatees, nor indemnity from the personal estate of the deceased.126

Beneficiaries under a will who have been deprived of property which they should have received, but for the election of another legatee, are entitled to compensation out of what the latter would have taken under the will by a different election. 127 Thus if a legatee under a will which puts him to an election by devising away property belonging to him, elects to waive the legacy and retain his own property, the subjectmatter of the legacy will go to relieve the disappointed devisee, so far as is necessary to cover his loss.128 But this doctrine does not apply where one person disappoints another by electing to take under the instrument which makes election possible.129 The substitution of the beneficiaries who have been disappointed by the election of a devisee or legatee under the will, will, if necessary, be to the extent of the rights given by the will to the party making the election, but it can go no further.180 It is generally held that where property is devised to one upon a condition merely, and he fails to comply with the same, thereby waiving his right to the devise, a stranger cannot, by performance of this condition. be substituted to the rights of the devisee.131

§ 6. Where Different Parties Hold Successive Claims Upon the Same Property.-Some effort has been made in a few courts to distinguish between a judgment or attachment lien and other incumbrances upon property. But by the great weight of authority it has the same effect as any other lor, 8 B. Mon. (Ky.) 419; Brinson v. Cunliff, 25 Tex. 760; McCampbell v. McCampbell, 5 Litt. (Ky.) 92. 124 Grim's Appeal, 89 Pa. St. 333; Brandt's Will, 40 Mo. 266: Dugan v. Hollins, 11 Md. 41.

125 Richardson v. Hall, 124 Mass. 228, 233. 126 Fairman v. Heath, 19 Ind. 63; Graves v. Graves, 106 Ind. 118; Hacker's Appeal, 4 Pa. St. 497.

127 Pickersgill v. Rodger, 5 Ch. Div. 163; Jennings v. Jennings, 21 Ohio St. 56; Sarles v. Sarles, 19 Abbott, New Cas. (N. Y.) 322.

128 Gilman v. Gilman 111 N. Y. 265; McNett v. MeNett, 24 N. J. Eq. 277; Batone's Estate, 186 Pa. St. 307; Kinnard v. Williams, 8 Leigh (Va.), 400. 129 In re Chesman, 31 Ch. D. 466.

130 Rodgers v. Jones, 3 Ch. Div. 688; Upham v. Emerson, 119 Mass. 509; Sandoe's Appeal, 65 Pa. St. 314.

131 Temple v. Nelson, Met. (Mass.) 584; Holstead v. Westervelt, 41 N. J. Eq. 100; Savage v. McCorkle, 17 Oreg. 42; Rugbee v. Sargent, 23 Me. 269. Contra: Ferre v. American Board, 53 Vt. 162; McArthur v. Gordon, 126 N. Y. 597.

incumbrance upon the rights of subsequent holders of parts of the incumbered property.12 Any person may disengage property from an incumbrance by payment of the debt which creates it, if such incumbrance prejudices an interest which he has in the property.18 And such person will be subrogated, upon its payment, to the rights of the creditor against the debtor who is ultimately liable therefor,134 as well as against the property upon which the debt is a charge.15 This right of the party who has the subordinate interest, cannot be defeated by any act of the party holding the prior incumbrance, provided the latter's debts and costs are paid in full; 136 and his right to reimburse out of the incumbered property is superior to that of intervening incumbrances;187 nor will an assignment of the evidence of the incumbrance be necessary for this purpose.138 Thus, one who has a title in land which might be defeated by the foreclosure of a mortgage upon the land, may pay the money due upon the mortgage and hold the land until some one who has a right to redeem has indemnified him.109 And though the mortgage was formally discharged it may, for his benefit, be considered as still subsisting to the extent of his right against the property.140 If, however, a purchaser from a mortgagor pays off the mortgage and has it discharged without more, he will not be subrogated to the rights of the mortgagee against an incumbrancer whose lien is subject to the mortgage, but prior to the purchase. But where the purchaser pays the mortgage debt without the knowledge of a subsequent lien he may claim subrogation to the lien of the prior mortgage in spite of its discharge.142 Where one purchases property under a valid decree in favor of creditors, he will be subrogated to the rights of those creditors, 143 and since the

132 National Sav. Bank v. Cresswell, 100 U S. 63; Barnes v. Mott, 64 N. Y 397; Ebhenhardt's Appeal, 8 Watts & Serg. (Pa.) 327; Edwards v. Appleton, 70 Ind. 325.

133 Powers v. Golden Lumber Co., 43 Mich. 468; Scott v. Henry, 18 Ark. 112; Morse v. Smith, 83 Ill. 397.

184 Southworth v. Schofield, 51 N. Y. 512.

135 Darst v. Bates, 95 Ill. 493; White v. Hampton, 13 Iowa, 259.

136 Emigrant Savings Bank v. Clute, 33 Hun (N. Y.), 82; Brigelow v. Cassedy, 26 N. J. Eq. 557.

187 Conn. Ins. Co. v. Bulbe, 45 Mich 113; Erwin v. Acker, 126 Ind. 133; Dillin v. Kauffman, 58 Tex. 696. 188 Reyburn v. Mitchell, 106 Mo. 367; Moore v. Beasom, 44 N. H. 215.

139 Twombly v. Cassidy, 82 N. Y. 155; Taylor v. Heggie, 83 N. Car. 244; Manwaring v. Powell, 40 Mich 371.

140 Lewis v. Chittick, 25 Fed. Rep. 176; Schissell v. Dickson, 129 Ind. 139; Lamb v. Richards, 43 Ill. 312.

141 Bentley v. Whittemore, 18 N. J. Eq. 366; Carter v. Goodin, 3 Ohio St. 75.

142 Barnes v. Mott, 64 N. Y. 397; Young v. Morgan, 8 Ill. 199.

148 Watking v. Winnings, 102 Ind. 380; Jones v. Smith, 55 Tex. 383; Raymond v. Holborn, 23 Wis. 57.

creditors would not be bound by a lien of which they had no notice, the purchaser would not be affected by such a lien even though he had notice of its existence before the purchase. And a purchaser at a sale made to enforce a lien will be substituted to the rights of the original lienholder though the proceedings were invalid.145 If the purchase does not put a legal title in him, it will be treated as an equitable assignment of the mortgage to him.146 The right of the purchaser of property to be subrogated for his payment in discharge of a valid lien does not depend upon the validity of his title under the purchase.147 It is sufficient if, by his payment in good faith, he discharged a real burden upon the property for the protection of an interest which he thinks to be in himself. 14 But the purchaser's right of subrogation to the benefit of debts which have been paid out of his money, is limited to his reimbursement for the payment of debts which stood as a prior charge upon the property purchased by him.149

Where one creditor holds a prior security upon two funds or estates, against either of which he may resort for the satisfaction of his demand, and another creditor holds a junior security upon one of these funds, the former creditor may be compelled in a court of equity to exhaust the fund which he alone can hold before resorting to the other fund, thus depriving the other creditor of his security.150 Should the prior creditor in the exercise of his legal right exhaust the only fund which the junior creditor can hold, the latter will be subrogated in a court of equity to the lien of the former upon the other fund, or to such portion thereof as is left after full satisfaction of the prior lien of which the senior creditor should have availed himself.151 The junior creditor may also satisfy the senior creditor's lien by payment thereof and be subrogated to the rights of the prior creditor against both funds. 152 A court of equity will not compel the prior cred

144 Sharp v. Shea, 32 N. J. Eq. 65; Martin v. Jackson, 27 Pa. St. 504.

145 Brabst v. Brock, 10 Wall. 519; Russell v. Hudson, 28 Kan. 99; King v. Brown, 80 Tex. 276.

146 Smith v. Robertson, 89 N. Y. 555; Wells v. Lin coln County, 80 Mo. 424; Wilson v. White, 84 Cal. 239.

147 Fowler v. Parsons, 143 Mass. 401; Gerdins v. Menage, 41 Minn. 417.

148 Guckian v. Riley, 135 Mass. 71; Moisier's Ap peal, 56 Pa. St. 76; Wadsworth v. Blake, 43 Minn. 509; Harlan v. Jones, 104 Ind 167; Kelley v. Duff, 61 N. H. 435; Arn v. Hoppin, 25 Kan. 707.

149 Carpenter v. Brenham, 40 Cal. 221; Comstock v. Michael, 17 Neb. 288.

150 Bird v. Jackson, 98 Ill. 78; Swift v. Canbay, 12 Iowa, 444; Sternberg v. Valentine, 6 Mo. App. 176; Davenport Plow Co. v. Mewis, 10 Neb. 317; Reynolds v. Tooker, 18 Wend. (N. Y.) 591; Lloyd v. Galbraith, 32 Pa. St. 103.

151 Slade v. Van Vechten, 11 Paige (N. Y.), 21; Wolf v. Ferguson, 129 Pa. St. 272; Bank of Kentucky v. Vance, 4 Litt. (Ky.) 168.

152 Washburn v. Hammond, 151 Mass. 132.

itor to confine himself to one fund only, unless that fund is shown to be sufficient to satisfy his demand; 15 nor can the junior creditor insist that the funds shall be marshalled in any case where it would injuriously affect the rights of the prior creditor,154 or rights that are vested in third parties,155 nor will it be applied against the prerogative right of the government to hold all of its debtor's property.156 The junior creditor can claim the right to be subrogated to the position of the senior creditor only when they have the same common debtor,157 and only when the prior claimant's demand is so satisfied as to free him from all further trouble, risk and expense.l

Where certain property is burdened with a mortgage, judgment-lien, or other incumbrance. and parcels of it are sold successively to different purchasers with warranty, whether by the original incumbrancer, or by his grantee, it is almost universally accepted that that portion of the property retained by the debtor should be applied first to the discharge of the incumbrance, and if that be insufficient, the parcels sold shall be resorted to in the inverse order of their alienation. 160 It is an equitable right of each purchaser to have the payment of the debt cast upon the remaining property.16 But this rule does not apply to cases where the different parcels of the incumbered property have been successively conveyed to the same person; nor in any case where it would work an injustice to the creditor;16 nor where the request for its application has been made after the foreclosure is completed.164 The rule adopted in Iowa and Kentucky on this subject is rather anomalous. Though it is held in those states that the portion which remains unsold should be first proceeded against,16 yet, as between the successive grantees of different parcels of the incumbered property.

153 Mason's Appeal, 89 Pa. St. 402; Barnwell v. Wafford, 67 Ga. 50.

154 Woolcocks v. Hart, 1 Paige (N. Y.), 185; Thayer v. Daniels, 113 Mass. 129; Wolf v. Smith, 36 Iowa, 454; Cannon v. Kreip, 14 Kan. 324; Sweet v. Redhead, 76 Ill. 374.

155 Lloyd v. Galbraith, 32 Pa. St. 103; Sager v. Tupper, 35 Mich. 134; Green v. Ramage, 18 Ohio, 428. 156 United States v. Duncan, 4 McClain, C. C. 607. 157 Boone v. Clark, 129 Ill. 466; Saunders v. Cook, 22 Ind. 436; Gegner v. Warfield, 72 Iowa, 11.

158 Graff's Estate, 138 Pa. St. 69; Swigert v. Bank of Kentucky, 17 B. Mon. (Ky.) 268.

169 Savings Bank v. Cresswell, 100 U. S. 630; Edwards v. Applegate, 70 Ind. 325; Gantz v. Toles, 40 Mich. 725; Raun v. Reynold, 11 Cal. 14.

160 Holden v. Pike, 24 Me. 225; Braun v. Simmons, 44 N. H. 475; Burton v. Baker, 23 Mich. 312.

161 Beard v. Fitzgerald, 105 Mass. 134; Hohn v. Beheman, 73 Ind. 120; Niles v. Harmon, 80 Ill. 396. 162 Steere v. Childs, 15 Hun (N. Y.), 511.

163 Pancoast v. Duval, 26 N. J. Eq. 445; Francis v. Herren, 101 N. Car. 497.

164 St. Joseph Manufacturing Co. v. Doggett, 84 III. 556.

165 Mickley v. ¡Tomlinson, 79 Iowa, 298; Dickey v. Thompson, 8 B. Mon. (Ky.) 261.

there is no greater moral obligation upon the one than the other to pay the debt; and, therefore they must contribute ratably to the discharge of the incumbrance.

§ 7. Subrogation Under Contracts of Insurance. -Contracts of marine and fire insurance are contracts only to indemnify the insured for losses incurred by the happening of the event against which he is insured.167 Hence, if the happening of the event causes no loss, no insurance can be collected. On the contrary, a life insurance policy is not a contract of indemnity, but is an agreement in consideration of a fixed annuity to pay a specific sum of money upon the death of the party whose life is insured.169 Upon the legal abandonment of the property by the insured, marine insurers, having satisfied their policy. acquire all the title, interest and burdens which the insured had in the same, with the spes recuperandi, and all his rights and remedies with respect thereto, and may enforce all subsequent rights in their own name.170 Indeed, they may bring libel into a court of admiralty to enforce their rights before actual payment.17 171 And it bas been held that these rights will accrue to them upon satisfying the whole loss, though there has been no abandonment. Upon satisfying the whole loss, the insurers will be subrogated to the rights of the insured against third persons whose negligence or wrongful acts have caused the loss.173 And if after recovering judgment against the insurers, the insured destroys his remedy against a wrongdoer who has caused the loss, a court of equity will relieve the insurers pro tanto from the judgment against them. If the policy be a valid one, since the valuation of the ship is conclusive as between the insurers and the insured, the insurers, upon paying this value, will be entitled to all damages recovered by the insured against the wrongdoer, though in fact the insured vessel was worth more than the valuation named in the policy.175

As between the carrier and the insurer of goods the carrier is primarily liable for his breach of

167 Smith v. Scott, 4 Taunt. 126; Rayner v. Peaston, L. R. 18 Ch. D. 1.

168 Caslellin v. Preston, L. R. 11 Q. B. D. 380. 169 Dalby v. India London Life Assur. Co., 15 C. B. 365.

170 Sun Ins. Co. v. Hall, 104 Mass. 507; United Ins. Co. v. Scott, 1 Johns. (N. Y.) 106; Traders' Ins. Co. v. Propeller Manistee, 5 Biss. C. C. 381.

171 The Manistee, 7 Biss. C. C. 35; Rogers v. Hasock, 18 Wend. (N. Y.) 318.

172 Halbrook v. United States, 21 Ct. of Claims, 434; Dufourcet v. Bishop, 18 Q. B. D. 373.

173 Mercantile Ins. Co. v. Clark, 118 Mass. 288; North of England Ins. Association v. Armstrong, L. R. 5 Q. B. 224; Monticello v. Mollison, 17 How. 152. 174 Atlantic Ins. Co. v. Sparrow, 5 Paige (N. Y.), 285; Phoenix Ins. Co. v. Parsons, 129 N. Y. 86.

175 North of England Ins. Co. v. Armstrong, L. R. 5 Q. B. 244; Sheldon, Subrogation (2d Ed.), sec. 222; Yates v. White, 4 Bing. New Cas. 272; Mason v. Salisbury, 3 Dang. 61; The Potomac, 105 U. S. 630; Comegys v. Vassa, 1 Pet. 193.

contract or non-performance that results in damage or destruction of the goods, while the insurer's liability is merely secondary.176 The insurers, therefore, upon payment of the loss caused by the carrier's failure of duty, may use the name of the insured to obtain indemnity from the carrier. There has been some effort to show that this doctrine does not apply in cases of fire insurance upon land, but Mr. Sheldon clearly points out the unsoundness of the argument. The carrier may, however, destroy the insurer's right by stipulating with the owner for the benefits of any insurance to be obtained by the owner against loss or damage to the goods for which the carrier would be liable."179 Insurers of property against fire which has burned through the fault of another person, or corporation, will, upon full payment for the loss, be subrogated to the remedies of the insured against the wrongdoer." 180 Their action at law must be in the name of the insured; but most of those states which have adopted the reformed codes of procedure permit them to maintain the suit in their own names. 182 By the civil law, as adopted in Canada, the right of the insurer to subrogation is more extensive than here stated. Though the insurers are liable for and pay only part of the damage done, they may be subrogated pro tanto to the rights of the insured against the wrongdoer who caused the loss, and may maintain the action in their own name.183

Where an insurance is procured upon the mortgaged property, the insurers do not become sureties for the debt, but are insurers of the property only, and therefore, do not acquire all the rights of sureties.184 But these rights may be obtained

176 North America Ins. Co. v. St. Louis Ry. Co., 9 Fed. Rep. 811; Bradburn v. Great Western Ry. Co. L. R. 10 Exch. 1; Great Western Steam Co. v. Phoenix Ins. Co., 129 U. S. 397; Hall v. Nashville & Chatt. R. R. Co., 13 Wall. 367; Mobile Ry. Co. v. Jurey, 111 U. S. 584.

177 Hall v. Nashville & Chatt. R. R. Co., 13 Wall 367.

178 Sheldon, Subrogation (2d Ed.), sec. 229.

179 Jackson Co. v. Raylston Ins. Co., 139 Mass. 508; Irman v. S. Car. Ry. Co., 129 U. S. 128; The Sydney, 27 Fed. Rep. 119; Platt v. Richmond R. Co., 108 N. Y. 358.

180 Hart v. Western R. R. Co., 13 Met. (Mass.) 99; Lumberman's Ins. Co. v. K. C. & Ft. Scott Ry. Co., 149 Mo. 165; Mammoth Ins. Co. v. Hutchinson, 21 N. J. Eq. 107.

181 London Assn. Co. v. Sansbury, 3 Dang. 245; Rockingham Ins. Co. v. Booher, 39 Me. 253.

182 Marine Ins. Co. v. St. Louis Ry. Co., 41 Fed. Rep. 643; Lumberman's Ins. Co. v. K. C. & Ft. Scott Ry. Co. 149 Mo. 165.

183 Sheldon, Subrogation (2d Ed.), sec. 232; Pathier on Assurance, p. 248; Quebec Ass. Co. v. St. Louis, 7 Moore, P. C. 286; Alauzel on Assurance, p. 384, sec. 477.

184 Cone v. Niagara Ins. Co, 60 N. Y. 619; Hadley v. N. H. Ins. Co., 55 N. H. 110; Ins. Co. v. Stinton, 10% U. S. 25; International Trust Co. v. Boardman, 145 Mass. 158; Cassa Maritima v. Phoenix Ins. Co., 129 N. Y. 490.

by a stipulation in the policy, procured by the mortgagee in his own favor upon the mortgaged property, that in case of loss the insurer will, upon paying the whole debt and taking an assignment of the mortgage, be entitled to all the remedies of the mortgagee for the whole debt secured thereby.187 And it is the prevailing rule that upon payment of the whole debt and taking an assignment of the mortgage, the insurers of the mortgaged property will acquire all the rights of the mortgagee under the mortgage, even although there was no such stipulation in the policy.186 "But where the mortgagor has an interest in the policy, either by payment of premiums or by agreement with the mortgagee, then there will be no subrogation in favor of the insurers, for the latter take only such right as the insured can give."187

The doctrine of subrogation is not extended to life insurers.188 Thus the insurers of life will not be substituted to the rights of the personal representatives against a railroad company whose negligence has caused the death of the insured.189 The reason for this is said by some courts to rest upon the ground that the insurers are affected by the wrongful act only by their artificial contractual relation with the insured, and, therefore, their loss is too remote and indirect a consequence of the wrongful act to give cause for an action. 190 But since the right of subrogation does not depend upon privity of contract, and since it is not the object of life insurance to indemnify for a loss, the true ground seems to rest upon the fact that it was not contemplated by the parties that life insurers should be subrogated to the rights of the insured.191

§ S. Subrogation of Strangers.-The doctrine of subrogation does not subsist in favor of a mere stranger or volunteer who has paid another's debt, in the absence of an assignment or agreement for subrogation, there being no legal obligation to pay, and it not being necessary to do so in order to protect his own property rights.192 To permit one thoroughly cognizant of the facts to

185 Foster v. Van Reed, 70 N. Y. 19; Dick v. Franklin Fire Ins. Co., 81 Mo. 103; Allen v. Watertown Ins. Co., 132 Mass. 480; Thornton v. Enterprise Ins. Co., 71 Pa. St. 234.

186 Castelain v. Preston, 11 Q. B. D. 380; Pendleton v. Elliott, 67 Mich. 496; Baker v. Fire Ins. Co., 79 Cal. 34. Contra: Suffolk Ins. Co. v. Boyden, 9 Allen (Mass.), 123.

187 Richards on Insurance, sec. 25; Louden v. Waddle, 98 Pa. St. 242.

188 Harding v. Townshend, 43 Vt. 536; Mobile Ass. Co. v. Brame, 95 U. S. 580.

189 Mobile Ins. Co. v. Brame, 95 U. S. 580; Conn. Ins. Co. v. N. Y. & N. H. Ry. Co., 25 Conn. 265.

190 Conn. Ins. Co. v. N. H. & N. H. R. Co., 25 Cor.n. 265.

191 Burnard v. Rodocanachi, 7 App. Cas. 330, 333; Dalby v. India Life Ins. Co., 15 C. B. 365; Godsall v. Bolders, 9 East, 72; Mobile Ins. Co. v. Brame, 95 U.S. 580.

192 St. Francis Mill Co. v. Sugg, 83 Mo. 476; Clark

be at liberty to elect whether he shall or shall not be bound would be contrary to natural justice, and tend seriously to subvert the rules of social order. The doctrine was instituted into the law for the relief of those who are already bound and cannot choose but to satisfy their obligation. 193 But there is no authority for the principle that a person, having full knowledge of the facts and at liberty to make his own terms. may demand any security he might require. It is a settled rule that one cannot obtrude himself upon another as his surety; therefore, if a man officiously and without solicitation pays the debt of another it will be absolutely extinguished,194 and such person will not be substituted to the right of the creditor.195 This principle has been applied to one who was not a party to the original transaction, but has subsequently become a surety and has paid the debt.1 The mere loaning of money to a debtor to be applied in the discharge of a lien upon his estate does not of itself subrogate the lender to the lien, even though that was the understanding of the parties, unless the agreement was such as would amount to a conventional subrogation. It sometimes becomes difficult to determine just who should be regarded as a mere volunteer. No fixed rule can be laid down. The question must be determined upon the merits of each case. Clearly a mere intermeddler is to be so regarded; so is one who obligingly discharges the debt of another.199 However, one who is under a moral obligation to make a payment,200 or may be compelled to do so, will not be regarded as a stranger if he discharges the indebtedness, but will have his remedy against the person ultimately liable therefor.201

There is some contravention between the courts as to whether one makes a payment under the mistaken belief that he has an interest is entitled to the right of subrogation. Some cases hold that the party must have a real interest before he can claim this right.202 Others hold

v. Moore, 76 Va. 262; Sandford v. McLean, 3 Paige (N. Y.), 117; Shinn v. Budd, 14 N. J. Eq. 234.

193 Godsden v. Brown, Speers Eq. (S. Car.) 37, 41; Kleimenn v. Gieselmann, 45 Mo. App. 497; Guy v. Du Uprey, 16 Cal. 195; Hough v. Etna Ins. Co., 57 Ill. 318.

194 Shinn v. Budd, 14 N. J. Eq. 234; Terry v. O'Neal, 71 Tex. 592; Maran v. Abbey, 63 Cal. 56.

195 Homestead Co. v. Valley R. R. Co., 17 Wall. 153; Toughloy v. Chapin, 134 Mass. 82; Binford v. Adams, 104 Ind. 41; Norton v. Higleyman, 88 Mo. 621.

196 Swan v. Patterson, 7 Md. 164.

197 Price v. Courtney, 87 Mo. 387; Nash v. Taylor, 83 Ind. 347; Unger v. Luter, 32 Ohio St. 210.

198 Baker v. Ward, 7 Bush (Ky.), 240; Murphree v. Countiss, 58 Miss. 712.

199 Russell's Appeal, 59 Pa. 401; Milbourne v. Philips, 143 Ind. 93.

200 Slock v. Kirk, 67 Pa. St. 380.

201 The Jersey City, 43 Fed. Rep. 166; Heritage v. Paine, 2 Ch. Div. 594; Jaquers v. Hackney, 64 Ill. 87. 202 Koehler v. Hughes, 148 N. Y. 507; Campbell v. Foster Home, 163 Pa. 606.

that a supposed interest is sufficient.203 To use the language of a distinguished author: "Perhaps the doctrine may be stated that, as a general rule, a supposed interest is not sufficient to support a claim of subrogation, but that exceptions may exist where other equities intervene."

Conventional subrogation consists only by direct agreement, express or implied, made between the parties paying and either the debtor or creditor.25 No formal assignment, however, is necesssary, if the agreement has been entered into.206

Where one claims under a conventional subrogation to the rights of the creditor, which amounts to an assignment of the debt and securities held for: its payment,207 he cannot also maintain an action on the distinct ground of the payment which he has made for such assignment.208

In the preceding section I defined conventional subrogation to be an express or implied agreement. This is the phrase generally used. By express agreement is meant a direct statement either written or oral. But an eminent author has clearly shown that an express agreement may be indicated just as forcibly by acts and doings of the parties as by their direct statements.209 It is a cardinal principle of conventional subrogation, as the decisions will clearly show, that the minds of the parties must have actually come together, and that this meeting of the minds must be indicated by a direct agreement expressed either in words or by acts. The word "implied," so often used in this connection, must be construed to mean an agreement which can be inferred as a matter of fact from the acts of the parties, but does not extend to those conclusions of law which a court declares regardless of the real intention of the parties.211

In Louisiana a third person paying the demand of a creditor cannot claim conventional subrogation to his rights and securities, except by express agreement in the prescribed form,212 with

203 Bailey v. Bailey, 41 S. Car. 337; Dutcher v. Habby, 86 Ga. 198; Everston v. The Central Bank, 33 Kan. 352.

205 New Jersey Midland Ry. Co. v. Wortendyke, 27 N. J. Eq. 658; Tex. & St. Louis R. R. Co. v. McCoghey, 62 Tex. 621.

206 Morrow v. U. S. Mortgage Co, 96 Ind. 21; Woods v. Ridley, 27 Miss. 120.

207 Jack v. Harrison, 34 La. Ann. 736.

208 Thompson v. Hudson, L. R. 2 Ch. 255; Byrne v. Hibernia Bank, 31 La. Ann. 81.

209 Martin on Civ. Proced. at Com. Law, sec. 54. See also Keener, Quasi Cont., 222; Bliss, Code Pleading.

210 New Jersey Midland Ry. Co. v. Wortendyke, 27 N. J. Eq. 658; Van Winkle v. Williams, N. J. Eq. 105; Burn v. Ludsay, 95 Mo. 250; White v. Cannon, 125 Ill. 412; Ashton v. Clayton, 27 Kan. 626.

211 Keener, Quasi Cont., 3-6.

212 Virgin's Succession, 18 La. Ann. 42; Hoyle v. Cozabat, 25 La. Ann. 438; Sheldon, Subrogation (3d Ed.), sec. 250.

the creditor,213 and at the time of the payment.214 Hence, in that State, a third party who advances money to a stranger to pay an indebtedness secured by a mortgage, having entered into an agreement with the debtor that he shall take an assignment of the mortgage, will not have such right of substitution, unless the creditor has also entered into the agreement at the same time and in the prescribed form.215 And no fact showing an intention of the parties that the person making the payment shall be substituted to the creditor's rights, will affect this substitution, unless the intention has been actually executed by a conventional subrogation.216

$ 9. Loss and Enforcement of the Right.-It is a general rule that a person may waive any right or privilege given to him by the law. One entitled to subrogation may waive this right either by express statement217 to that effect or by his act.218 Where one who is seeking the application of the doctrine of subrogation to protect him against a loss which he has suffered because of his own negligence, his request will not be granted if it would be prejudicial to other innocent creditors or assignees of the debtor.219 But the mere fact that the loss resulted from his own negligence will not deprive him of this right if its enforcement would not prejudice the rights of others not at fault. Like other rights, the right of subrogation will be barred by the statutory period of limitation. But the mere lapse of a shorter time would not, of itself, be a bar to the right,222 though a protracted delay by a surety would be evidence of a waiver of his right.223 The right accrues upon payment, and as to his principal the statute begins to run against him from that time.224

In the foregoing pages, repeated reference has been made to the mode of enforcing the right of subrogation under particular circumstances. Therefore, but little need to be said at this instance. The mode of procedure in

213 Virgin's Succession, 18 La. Ann. 42; Hoyle v. Cazobat, 25 La. Ann. 438.

214 Brice v. Watkins, 30 La. Ann., pt. I., 21; Durac v. Ferrori, 26 La. Ann. 114.

215 Hoyle v. Cozabat, 25 La. Ann. 438.

216 Harrison v. Bislands, 5 Rob. (La.) 204; Chambliss v. Miller, 15 La. Ann. 713.

217 U. S. Bank v. Peters, 13 Pet. (U. S.) 123; Midland Banking Co. v. Chambers, L. R. 7 Eq. 179.

218 Neff v. Miller, 8 Pa. St. 347; Maning v. Tuthill, 30 N. J. Eq. 29; Hubbell v. Carpenter, 5 N. Y. 173. 219 Gordon v. English, 3 Lea (Tenn.), 634; Corner v. Welch, 51 Wis. 381; State v. Beal, 88 Ind. 106; Bussey v. Page, 13 Me. 459.

220 Willcox v. Foster, 132 Mass. 320; Daniel v. Baxter, 1 Lea (Tenn.), 630.

221 Kreider v. Isenbice, 123 Ind. 10; Bledso v. Nixon, 68 N. Car. 521; Simpson v. McPhail, 17 Ill. App. 499. 222 Bird v. Louisiana Bank, 93 U. S. 96; Corner v. Howe, 35 Minn. 518; Robertson v. Mowell, 66 Md. 530. 223 Noble v. Turner, 69 Md. 519.

224 McDonald v. Magruder, 3 Pet. 470; Burton v. Rutherford, 49 Mo. 255; Junker v. Rush, 26 N. E. Rep. 499; Bennett v. Cook, 45 N. Y. 268.