Luckett v. Brickell

76 So. 502, 115 Miss. 457

Opinion

Holden, J.,

delivered the opinion of the court.

The executor and trustees had no authority under the will to borrow the money from appellant for the estate and pledge the stock as security therefor; nor were they able to do so lawfully by the unauthorized, illegal, and void decree of the chancery court.

If it be conceded that the five thousand dollars loaned by appellant to the executor and trustees was applied by them to the payment of probated debts due by the estate, and the estate is thereby bound by subrogation to appellant, through the executor and trustees, as contended, this equitable defense of subrogation cannot be pleaded in a court of law, as it is not of such a character as would in a court of equity transfer the legal title of the property • to the defendant. Therefore this defense cannot be made in this case of replevin in a law court; it would be proper in a chancery court. Bonner v. Lessley, 61 Miss. 392; Hill v. Billingsly, 53 Miss. 111; McGee v. Wallis, 57 Miss. 638, 34 Am. Rep. 484.

. Section ■ 2082 of the Code of 1906 has no application to the case at bar.

Judgment affirmed.