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first instead of a second mortgage. But that consideration would give no right of subrogation to the holder of the second mortgage. It seems to us that the case of McCleary's Appeal, 20 Week. Not. Cas. 547, covers every aspect of this. There the first mortgage was an undoubtedly 635 valid lien upon the property for nine hundred and twenty-five dollars. The second mortgage was a forgery, and the holder, as here, desiring to have the first lien extinguished, paid six hundred dollars of the mortgage money, fourteen hundred dollars, to the agent of the owner of the property, who, with three hundred and twenty-five dollars furnished by the owner, paid the nine hundred and twenty-five dollars due on the first mortgage, had it satisfied, and surrendered the bond and the mortgage to the owner. When the forgery was discovered, the holder of the second mortgage filed a bill praying a cancellation of the entry of satisfaction and subrogation. Both the court below and this court held that this could not be done, and dismissed the bill upon the express ground that, although the first mortgage was an unquestioned lien, and the money, to the extent of six hundred dollars, was paid by the holder of the second mortgage, he was a mere volunteer in making such payment, aud was not entitled to subrogation.

The same doctrine was enforced in the case of Webster's Appeal, 86 Pa. St. 409, the syllabus of which is as follows, viz: While subrogation is founded on principles of equity and benevolence, and may be decreed where no contract exists, yet it will not be decreed in favor of a mere volunteer, who, without any duty, moral or otherwise, pays the debt of another. It will not arise in favor of a stranger, but only in favor of a party who, on some sort of compulsion, discharges a demand against a common debtor. There the maker of a promissory note for seven hundred dollars gave a judgment for that amount to his indorser to protect him against liability on his indorsement. Afterward, at the maturity of the note, another person consented to indorse a new note to take up the first one upon the express assurance of the maker that the judgment should be assigned to the second indorser for his protection against liability for the same debt. The judgment was assigned shortly after to the second indorser, who was ultimately obliged to pay the note. The property of the maker being sold upon execution process, the holder of the assigned judgment claimed a share in the distribution of the proceeds as against judgments obtained subsequently to

the assigned judgment. Priority in the distribution was allowed to be assigned judgment in the court below, but this court reversed the decree, holding that the second indorser was a mere volunteer, and that, as the first judgment had served its purpose of protecting the first indorser, it could not be used 636 to protect the second indorser, although assigned to him for that purpose by the first indorser as a condition of the second indorsement. While we decided that if the judgment had been held by the bank which discounted the note, as a part of their security, subrogation would have been granted, even against intervening judgment creditors, we held also that it could not be granted to one who came in as the indorser of a new note given to take up the first note, because he was a stranger to the first contract, and was to be regarded as a mere volunteer. Woodward, J., said: "While subrogation is founded on principles of equity and benevolence, and may be decreed where no contract exists, yet it will not be decreed in favor of a mere volunteer, who without any duty, moral or otherwise, pays the debt of another: Hoover v. Epler, 52 Pa. St. 522. It will not arise in favor of a stranger, but only in favor of a party who, on some sort of compulsion, discharges a demand against a common debtor: Mosier's Appeal, 56 Pa. St. 76; 93 Am. Dec. 783. . . . . There was no privity of interest and no contract relation between Bauer and Banker. Bauer could create no duty to himself by a volunteered intervention for Banker's relief. He became Adam's indorser without being under any legal or moral compulsion, and he had no existing interest, ascertained or contingent, to protect. He had no equity to entitle him to subrogation."

So here the payment of the six thousand dollars due under the first mortgage was not made under any compulsion, or for the protection of any rights or interests previously acquired. The defendant simply loaned the money, and, in order to remove a prior lien, paid it off without the knowledge or consent of the plaintiff. If a right of subrogation is acquired in such a state of facts we see no reason why it may not exist in every case of officious payment of the debt of another. Yet it is perfectly clear under all the authorities that such payments do not give any right of subrogation to the debt discharged.

In Beach on Modern Equity Jurisprudence, section 801, the writer says: "But one who is only a volunteer cannot

invoke the aid of subrogation, for such a person can establish no equity. He must have paid upon request or as surety, or under some compulsion made necessary by the adequate protection of his own right. In such a case, instead of creating any right of subrogation, the payment operates as the absolute 637 discharge of the debt so paid. Thus one who discharges an encumbrance upon property which he has no interest in having relieved is not thereby subrogated to the rights of the holder of the encumbrance; and the loaning of money to discharge a lien does not subrogate the lender to the rights of the lienholder."

Sheldon, in his work on Subrogation, section 240, says: "The doctrine of subrogation is not applied for the mere stranger or volunteer who has paid the debt of another without any assignment or agreement for subrogation, being under no legal obligation to make the payment, and not being compelled to do so for the preservation of any rights or property of his own."

There can be no question of the soundness of the foregoing propositions, and, where the facts are such as to make them applicable, they are controlling. We think, for reasons already stated, they are directly applicable to the undoubted facts of the present case. It is not practicable, within the proper limits of a judicial opinion, to engage in a critical review of the numerous decisions cited in the arguments of counsel on both sides. A great many of them furnish their own answer when the facts which distinguish them are duly noted and considered. Others, which are apparently in point, are affected by the presence of exceptional circumstances which authorize the introduction of different principles with a controlling effect. But a minute and patient attention to, and consideration of, the very able and exhaustive argument for the appellant has failed to convince us of any error in the treatment of the case by the learned master and the court below, and, substantially for the reasons stated by them, we think the decree should be affirmed.

Decree affirmed and appeal dismissed at the cost of the appellants.

POWERS OF ATTORNEY ARE STRICTLY CONSTRUED: Frost v. Erath Cattle Co., 81 Tex. 505; 26 Am. St. Rep. 831, and note; Harris v. Johnson, 54 Minn. 177; 40 Am. St. Rep. 312, and note. See, also, the extended note to Davenport v. Parsons, 81 Am. Dec. 777.

POWER OF ATTORNEY TO SELL DOES NOT CONFER PROPERTY.-AUTHORITY TO MORTGAGE THE SAME: Wood v. Goodridge, 6 Cush. 117; 52 Am. Dec. 771; note to Huntt v. Townshend, 100 Am. Dec. 65. Compare Kent v. Morrison, 153 Mass. 137; 25 Am. St. Rep. 616, and note.

SUBROGATION-RIGHT OF VOLUNTEER.—A mere volunteer is not entitled to subrogation: Skinner v. Tirrell, 159 Mass. 474; 38 Am. St. Rep. 447, and note. A mere volunteer who advances money to pay off a mortgage is not entitled to be subrogated to the rights of the mortgagee: Kleimann v. Gieselmann, 114 Mo. 437; 35 Am. St. Rep. 761, and note.

CASES

IN THE

SUPREME COURT

OF

WASHINGTON.

LA FRANCE FIRE ENGINE COMPANY V. Town of MT. VERNON.

[9 WASHINGTON, 142.]

FOREIGN CORPORATIONS-FAILURE TO COMPLY WITH STATUTE-Penalty.— If a statute imposes a penalty on a foreign corporation for failure to file a copy of its charter and to appoint an agent the penalty so provided is exclusive of any other. FOREIGN CORPORATIONS-FAILURE TO COMPLY WITH STATUTE-CONTRACTS WITH ESTOPPEL.-Under a statute failing to provide that contracts made by foreign corporations doing business within the state without complying with the provisions of such statute shall be void, but fixing a special penalty for such violation, a party contracting with such cor. poration is estopped from pleading its want of compliance with the statute. PLEADING-CAUSE OF ACTION AGAINST CITY.-A complaint in an action against a city to recover the balance of the purchase price of certain personal property based upon a note, and alleging a contract of purchase between the parties, that the note was given for part of the purchase price agreed upon, and issued under and by authority of the council of such city, that certain payments have been made by the issuance of warrants upon the treasury of such city, that there is now due and owing a specified sum, a claim for which has been duly presented to said city council and by it repudiated and payment refused, and that plaintiff is now the owner and holder of such note and claim, states a cause of action against the city.

Million & Houser, for the appellant.

J. Henry Smith, for the respondent.

142 DUNBAR, C. J. This action was brought by appellant, a corporation of New York, against respondent, a municipal corporation of the fourth class, to recover of and from respond

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