J. A. FARRELL, Appellant,
CARL WEST and HENRY WEST, Appellees
APPEAL from a judgment of the Superior Court of the County of Graham. Wm. G. Hall, Judge. In our opinion, ante, p. 332, 113 P.2d 866, the judgment was reversed and the cause remanded with directions to enter judgment in favor of plaintiff quieting his title to the land. Upon motion for rehearing by appellees, said opinion modified.
Mr. George D. Locke, Mr. Thomas W. Glenn, and Mr. Charles Rogers, for Appellant; Mr. J. Bolivar Sumter, on the Brief.
Messrs. Morris & Malott, for Appellees.
[57 Ariz. 491] ROSS, J.
Appellees Carl and Henry West in a motion for rehearing insist that, since they paid Pursley a balance on the mortgage, they became the equitable assignees thereof by subrogation and that being so the judgment should require the mortgagor Farrell to reimburse them as a condition to quieting his title to the land.
In an action to quiet title, the party invoking the court's jurisdiction is required to do equity and, if it appears there is an unsatisfied balance due a defendant-mortgagee, or his assignee, the court will not quiet the title until and unless he pays off such mortgage lien, though it be barred by limitation. Provident Mutual Building-Loan Associations v. Schwertner, 15 Ariz. 517, 140 P. 495.
As thus modified, the opinion stands.
The case is remanded, with instructions that the trial court hear evidence of the amount, if any, which should be added to the original mortgage debt and, if it should be determined that there is any balance due thereon, upon its payment by ...