George M. Forman and George M. Forman and Herman Hachmeister, as Copartners Under the Firm Name and Style of George M. Forman & Company, Appellants, v. First National Bank of Quincy, a Corporation; North Georgia National Bank, a Corporation; American National Bank of Asheville, a Corporation, Moses Guyton, Jr., Lucy H. Guyton, His Wife, and John H. Carter, Appellees, 76 Fla. 48

West, J. This is the second time this case has reached this Court. On the former appeal (First National Bank of Quincy v. Guyton, 72 Fla. 43, 72 South. Rep. 460) the quesrion now presented was not involved. The complainant banks in the original suit flled their bill to foreclose a mortgage upon certain real estate iu Jackson County, made by Moses Guyton and his wife to J. H. Carter. This mortgage was made on January 12th, 1909, and was given to secure the payment of three promissory notes which were subsequently and before maturity transferred by endorsement to said banks, one of said notes to each of said banks.

There was no formal transfer of the mortgage to the banks, but on the former appeal it was held that five endorsement of the notes had this effect. It appears from the record that on the lltli day of July, 1910, Carter executed an instrument to Guyton called a “release” which had for its purpose the subordination of the lien of the mortgage made to him, as to certain of the real estate embraced in it, to a mortgage made by Guyton and his wife to George M. Forman, dated May 18th, 1910, given to secure the payment of a loan of $2,500.00 which loan was consummated and the money paid on September 9th, 1910.

By answer and cross-bill Forman averred and alleged that he made the loan to Guyton for the purpose of paying off a mortgage made by Guyton upon the same real estate to D. R. Burgess & Co. dated February 13th, 1906, and two certain judgments against Guyton, one recovered by J. M. Dillon on June 1st, 1908, and the other by Central State Bank on June 18th, 1908, all of which were liens superior to the Carter mortgage, and that Guyton agreed to secure a release of the Carter mortgage so that the mortgage to Forman would be a first mortgage and a lien of superior dignity to the Carter mortgage.

The prayer was for a foreclosure of his mortgage and for subrogation to the rights of Burgess & Company and said judgment creditors. The Chancellor decreed foreclosure of the Carter mortgage and denied the prayer of the cross-bill with respect to the subrogation of Forman. The appeal is from that decree, and the decisive question is whether upon the showing made the prayer of the cross-bill for subrogation should have been granted.

With respect to this feature of the case the following facts seem to be established: That Guyton . made an application in writing to Forman for a loan of $2,500.01) “to liquidate some of my indebtedness” and represented therein that the real estate which he proposed to mortgage as security for the payment of the amount borrowed was covered by a mortgage to Burgess & Co., and the mortgage to Carter which would be released'; that he, Guyton, would furnish a complete abstract of the title to the property mortgaged showing the loan mortgage to be a first lien and agreeing that the money loaned him could be used in discharging all liens on the real estate mortgaged before the loan was completed.

The abstract was furnished and the mortgage was made by Guyton and wife to Forman on May 27th, 1910, in which it was convenanted that the premises were free of all incumbrances. The original release executed by Garter, the record owner, of the mortgage made to him on most of the same property, purporting to subordinate the lien of such mortgage to the Forman mortgage, was delivered to Forman.

The check for the amount of the loan was thereupon transmitted to the designated agent of Guyton, who had negotiated the loan, with instructions to apply the amount to the payment of the Burgess & Co. mortgage, which was then in the hands of an attorney for foreclosure, and the judgments of Dillon and Central State Bank and secure cancellations thereof which was done on September 9th, 1910, and the Burgess mortgage sent to Forman.

That Guyton believed that he was giving and Forman understood that he was securing a lien that was -superior to the lien of the Carter mortgage and which would bear the same relation to it as that borne by the Burgess & Co. mortgage is not disputed, but the contention is made that this case is controlled by the decision in the case of Boley v. Daniel, 72 Fla. 121, 72 South. Rep. 644, and that, conceding - all the facts to be proven which the evidence tends to prove, a case for the application of the doctrine of subrogation is not made out. This case is clearly distinguishable from the Boley case.

There Daniel the party occupying the same relative position as that occupied in this case by Forman was' alleged to have “no actual notice or knowledge” of an intervening mortgage on the property covered by his mortgage at the time when he paid and caused to be satisfied on the record a prior mortgage on such" property; and it is also alleged that he took the mortgage which he held “in the belief that there were no other mortgages on the property.” It was held in that case, in effect, that inasmuch as he denied any knowledge of such intervening mortgage that it could not be successfully contended that it was agreed that the mortgage which he took should be superior to it.

Here, however, the case is different. Forman knew of the Carter mortgage and such steps were taken as seemed to be essential to give to the Forman mortgage the same status as that occupied by the Burgess & Co. mortgage and to preserve the status quo of the .Carter mortgage. Carter was the apparent owner of the mortgage made to him by Guyton.

He appeared from the public records of the County to 'be the owner and tbe formal execution by him of the purported release thereof for the purpose of giving to the Forman mortgage the same legal status as that occupied by the Burgess & Co. mortgage was tantamount to an assertion by Carter that he was still the owner of such mortgage.

It is true, as held by the Court, that such release was without effect to accomplish the purpose for which it was designed, but that was because the notes which the mortgage was given .to secure had previously thereto been endorsed and transferred to other parties, all of which was unknown to Forman, and Carter, not realizing the legal effect of such endorsement with respect to the transfer of the mortgage, did not disclose it.

Where one in taking a mortgage on real estate in good faith relies upon the record title of such real estate and representations of prior incumbrancers he is not chargeable Avith negligence. There is no question of the l)ona fides of Forman in the transaction and he should' not be denied the right to invoke the equitable doctrine of subrogation because he did not find the actual owners of the Carter notes and mortgage, and especially so since Carter himself continued to act as such owner. Kent v. Bailey, .. Iowa .., 164 N. W. Rep. 852; Home Sav. Bank v. Bierstadt, 168 Ill. 618, 48 N. E. Rep. 161.

The modern authorities agree that the doctrine of subrogation has been steadily expanding and growing-in importance and extent in its application to various subjects and classes of persons and' that the agreement out of which conventional subrogation arises and upon which it rests may be express or implied. Kent v. Bailey, supra; Home Sav. Bank v. Bierstadt, supra; Walker v. Walker, .. Tenn. .., 200 S. W. Rep. 825; Thompson v. Connecticut Mut. Life Ins. Co., 139 Ind. 325, 38 N. E. Rep. 796; Gore v. Brian, (N. J.) 35 Atl. Rep. 897; Bankers’ Loan & Investment Co. v. Hornish, 94 Va. 608, 27 S. E. Rep. 459; Emmert v.

Thompson, 49 Minn. 386, 52 N. W. Rep. 31; Southern Cotton Oil Co. v. Napoleon Hill Cotton Co., 108 Ark. 555, 158 S. W. Rep. 1082. Thus in Kent v.

Bailey, supra, the Court said: “Conventional subrogation arises by virtue of an agreement express or implied, that a third person or one having no previous interest in the matter involved shall, upon discharging an obligation or paying a debt, be substituted in the place of the creditor in respect to such rights, remedies or securities as he may have against the debtor.” The general rule for the application of this doctrine is stated by Pomeroy as follows: “Equity does not admit the doctrine of equitable .assignment in favor of everj person who pays off a mortgage.

Such relations must exist towards the mortgaged premises or with the other parties, that the payment is not a purely voluntary act, but is an equitably necessary or proper means of securing the interests of the one making it from possible loss of injury. The payment must be made by or on behalf of a person who had some interest in the premises, or some .¡claim against other parties, which he Is entitled, in equity, to have protected and secured. A mere stranger, therefore, who pays off a mortgage as a purely voluntary act can never be an equitable assignee.

In general, when any person having a subsequent interest in the premises, and who is therefore entitled to redeem for the purpose of protecting such interest, and who is not the principal debtor primarily and absolutely liable for the mortgage debt, pays off the mortgage, he thereby becomes an equitable assignee thereof, and may keep alive and enforce the lien so far as may be necessary in equity for his own benefit; he is sugrogated to the rights of the mortgagee to the extent necessary for his own equitable protection.

The doctrine is also justly extended by analogy, to one who, having no previous interest, and being under no obligation, pays off the mortgage, or advances money for its payment, at the instance of a debtor party and for his benefit; such a person is in no true sense a mere stranger and volunteer.” 3 Pomeroy’s Eq. Jur. (3rd ed.) Sec. 1212.

The facts in this case differentiate it from the Boley case and upon authority and well established principles of natural justice warrant the holding that Forman is entitled to subrogation to the lien of the Burgess & Co. mortgage and the Dillon and Central State Bank judgments to the extent that the money advanced by him was applied to the payment of such mortgage and judgments. The complainant banks can not complain at this conclusion.

It leaves them in precisely the same position, with respect to their security, that they occupied at the time they became the holders of the notes which are the basis of their claims. The decree will be reversed with direction to modify the final-decree so as to conform to the views herein expressed. Browne, C. J. and Taylor and Whitfield, J. J., concur. Ellis, J., dissents.