Atherton v. Tesch
Supreme Court of Alabama
Appeal from Circuit Court, Washington •County. Suit to foreclose mortgage by Win. J. Tesch, as trustee, and others, against Ella C. Atherton and others, wherein the named defendant filed a cross-bill. 'From decree of foreclosure, and granting cross-complainant part of the affirmative relief sought by her, she appeals.
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Appeal from Circuit Court, Washington •County. Suit to foreclose mortgage by Win. J. Tesch, as trustee, and others, against Ella C. Atherton and others, wherein the named defendant filed a cross-bill. 'From decree of foreclosure, and granting cross-complainant part of the affirmative relief sought by her, she appeals. Bill by appellees, William J. Tesch, as trustee, W. H. Donner, H. D. Wing, and the First National Bank of Kaukauna, Wis., against Pinehurst Fruit & Nut Company, a1 corporation, Harvey L. Holmes, Hattie R. Holmes, Ella C. Atherton, and others, seeking a foreclosure of a mortgage…
1Opinion of the CourtGardner, J.
The general rule in regard to subrogation is well stated by the Supreme Court of Indiana in the case of Carithers v. Stuart, 87 Ind. 424, as follows:
‘It is a well-settled general rule that before subrogation can be enforced the whole debt must bo paid. Substitution cannot be made as long as the debt of the party whose rights are claimed to be used for the purpose of protecting the interest of the applicant for substitution remains unsatisfied, though it be in part only; ‘for until he shall be wholly satisfied, there ought and can be no interference with his rights or his securities, which…
2Cases cited5 opinions
- Wilkins, Neely & Jones v. GibsonSupreme Court of Georgia · 1901
- Carithers v. StuartIndiana Supreme Court · 1882
- J. P. Browder & Co. v. HillCourt of Appeals for the Sixth Circuit · 1905
- Hubbard v. Le BarronSupreme Court of Iowa · 1900
- London & Northwest American Mortgage Co. v. FitzgeraldSupreme Court of Minnesota · 1893
3Cited by11 opinions
- Cross v. Bank of EnsleySupreme Court of Alabama · 1921
- Montgomery v. WadsworthSupreme Court of Alabama · 1933
- Corinth State Bank v. First Nat. Bank of FlorenceSupreme Court of Alabama · 1928
- Federal Land Bank v. Henderson, Black & Merrill Co.Supreme Court of Alabama · 1949
- Continental Bank & Trust Co. v. Alabama General InsuranceSupreme Court of Alabama · 1963
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