Having made the payment of $2,500 on the original mortgage, then overdue, under the erroneous belief that she was the owner of the fee of the premises, when in fact she had but a life estate, and there being no intervening equities that can be prejudiced, Mrs. Gitzen should, to the extent of such payment, deducting interest for the duration of her life tenancy, be subrogated to the rights of the original mortgagee, as against the remaindermen, since the latter would have been bound to pay the mortgage to protect their estate. 3. Is the plaintiff entitled to subrogation to the rights of Mrs. Hennes under her mortgage by reason of loaning $3,000 to pay the balance of principal of said mortgage under mistake of fact as to the title of the property in question taken as security?

In 37 Cyc. pp. 462, 463, it is said:

"Where an invalid or defective mortgage is given to secure an advancement of money made for the express purpose of paying off a prior encumbrance, the mortgagee in the defective mortgage will be subrogated to the lien of the encumbrance so discharged, in the absence of intervening encumbrances, and mere constructive notice of the invalidity based upon a presumption of knowledge of the law, or upon the recording acts, is not sufficient to prevent the right from attaching if the mortgagee did not have actual knowledge, and the failure of actual knowledge was not mala fides."

In Sproal v. Larsen, 138 Mich. 142, Mr. Justice CARPENTER said:

"There was presented to complainant's attorney an abstract brought down to February 17, 1891, showing title in defendant Augusta. Complainant was led to believe, and did believe, that that title continued in her. He thereupon advanced the money required to pay the money secured by the Gary mortgage, which was accordingly paid, and he obtained a new mortgage on said property, signed by defendant Augusta and her husband. Having subsequently ascertained that defendant Augusta had no title to the mortgaged prop

erty, complainant instituted this suit, asking to be subrogated to the rights of the mortgagee in the Gary mortgage.

* * *

"Justice MONTGOMERY, speaking for this court (see Palmer v. Sharp, 112 Mich., at page 423), said:

""In numerous cases in this State, parties who have accepted securities in good faith upon a loan made for the purpose of discharging existing incumbrances upon the same real estate, have, upon its appearing that the security was ineffectual or invalid, been allowed to be subrogated to the rights of prior lienors; there being no person intervening entitled to superior equities.' (citing cases).

"This principle and these authorities clearly entitle complainant to relief.

"The fact that the property is a homestead does not, as contended by defendants, make the doctrine of subrogation inapplicable. That circumstance did not lessen the rights of the original mortgagee, and therefore does not affect complainant, who, by subrogation, has acquired those rights. ***

"In the case at bar, complainant's mistake was not one of law. He did not know the facts."

It is true that in the above case there was no interest of a remainderman involved, but in one of the numerous situations involved in Stroh v. O'Hearn, supra, the exact situation here presented was in issue. Mr. Stroh had loaned money to pay off some mortgages on property of the O'Hearn estate, and had taken as security therefor a mortgage, signed by John and Martin O'Hearn, covering a portion of the lands of the estate in which said John and Martin O'Hearn had but a life estate, instead of the absolute title in fee which all the parties concerned honestly believed they owned. In passing on the rights of Mr. Stroh, Mr. Justice STEERE said:

"The mortgages had been foreclosed and sale decreed, and the legacies were past due and payable when Stroh and Bauman first became connected with the

200-Mich.-32.

estate. They were in no way responsible for the conditions which had arisen. Under the apparent necessity of raising money to avoid a sacrifice of the entire estate and meet these pressing obligations, through innocent misrepresentation and a misunderstanding all around as to the condition of titles, they advanced the money to pay off those liens, under the honest belief that they were paying incumbrances on property bought or security taken, based on perfect titles. We think it is within the power of a court of equity to grant them subrogation, subject to such conditions as are just and equitable. They are not arbitrarily entitled to it as a matter of right, irrespective of equitable considerations arising in favor of other interests which may be affected thereby. Subrogation is an equitable doctrine depending upon no contract or privity, and proper to apply whenever persons other than mere volunteers pay a debt or demand which in equity and good conscience should have been satisfied by another. It is proper in all cases to allow it where injustice would follow its denial, and in allowing it all injustice should be guarded against so far as possible. We need not go afield in other jurisdictions for authority upon this subject; the law is well settled in this State. Detroit Fire & Marine Ins. Co. v. Aspinall, 48 Mich. 238 (12 N. W. 214); Lockwood v. Bassett, 49 Mich. 546 (14 N. W. 492); Warner v. Hall, 53 Mich. 371 (19 N. W. 40); Kelly v. Kelly, 54 Mich. 30 (19 N. W. 580); White v. Newhall, 68 Mich. 641 (36 N. W. 699); Palmer v. Sharp, 112 Mich. 420 (70 N. W. 903); Dayton v. Stahl, 132 Mich. 360 (93 N. W. 878); Sproal v. Larsen, 138 Mich. 142 (101 N. W. 213); Taylor v. Roniger, 147 Mich. 99 (110 N. W. 593)."

After discussing the peculiar intermingling of equities due to the complicated facts of that case, he says:

"In granting relief from the consequences of these mistakes, the rights and interests of all parties must be considered. We think it proper, and within the power of a court of chancery, to grant subrogation to Bauman and Stroh to the amount of the liens against the estate which they have paid, less the value of any benefits they may have received from the estate; but the subrogation must be in lieu of that out of which

the mistakes, which justify the court in granting subrogation asked, arose. * ** * With these conveyances canceled and subrogation granted, Stroh and Bauman stand in their relation to the estate as secured creditors only to the amount of the money they advanced in payment of liens against it. Their only right is to have their liens enforced with reasonable diligence.'

In the instant case, there are no such intervening equities. When the remainder interest in the Houghton store property vested in the remainderman, it was incumbered by a mortgage of $5,500, the duty of paying which rested on the remainderman. The mortgage was paid by another and discharged under a mistake of fact. If we allow the parties who furnished the money for such payment to be subrogated to the rights of the original mortgagee, the remainderman is thereby left in the identical position he originally occupied, bereft of the inequitable advantage he seeks to retain, but burdened with no incumbrance greater than that which in equity and good conscience he should be required to bear as an incident of the estate which passed to him under the will.

Having loaned the sum of $3,000 for the express purpose of paying off a prior incumbrance on the land taken as security for such loan under a mistake of fact whereby the mortgage became defective, and there being no intervening incumbrances or equities, plaintiff is entitled to be subrogated to the lien of the incumbrance so discharged, to the extent of $3,000.

Inasmuch as Mrs. Gitzen was personally liable on the note and mortgage given by her to the plaintiff, and had personally received the benefit of the loan over and above the $3,000, and her executor has intervened in this case, equity will give the plaintiff a lien on a sufficient portion of the amount to which Mrs. Gitzen is entitled to be subrogated, as above provided, to pay the balance due on plaintiff's mortgage over and above

the $3,000 to which it is entitled to be subrogated. The plaintiff and intervener, as the equitable assignees of the Hennes mortgage, should have the right to foreclose the same to enforce payment.

Assuming that the amount found due in the decree of the court was determined in accordance with the rules of law herein set forth, the decree of the court below will be affirmed in all respects, with costs to the plaintiff and to the intervener.

OSTRANDER, C. J., and BIRD, MOORE, STEERE, BROOKE, FELLOWS, and STONE, JJ., concurred.

In re DAVIS' ESTATE.

ENGLE v. DAVIS' ESTATE.

1. ESTATES OF DECEDENTS - EXECUTORS AND ADMINISTRATORS CLAIMS-EVIDENCE-ADMISSIBILITY.

On appeal to the circuit court by the administrator from the allowance of a claim against decedent's estate for the amount of a loan claimed to have been made by plaintiff to decedent at the time decedent purchased some land, evidence of the vendor of the land that plaintiff gave him a check in the presence of the deceased, although not at his request, is not open to the objection that it does not tend to show contractual relations between plaintiff and deceased, but, with other evidence, was properly admitted as evidence of the payment.

2. SAME

CORRESPONDENCE-CORROBORATIVE TESTIMONY. Where disinterested witnesses testified that deceased admitted his indebtedness to plaintiff and stated he had given him a heifer and a hog in payment of the interest,