In the civil law, an agent who buys goods for his principal with his own money is so far subrogated to the principal's rights that if he fails the agent may sell his goods as if they were his own; Cour de Cass. Nov. 14, 1810.
An insurer of real property is subrogated to the rights of the insured against third parties who are responsible for the loss at common law; 2 B. & C. 254; Hart v. R. Corp., 13 Mete. (Mass.) 99, 46 Am. Dec. 719 ; Connecticut Fire Ins. Co. v. R. Co., 73 N. Y. 399, 29 Am. Rep. 171; Rockingham Mutual Fire Ins. Co. v. Bosher, 39 Me. 253, 63 Am. Dec. 618; Connecticut Mut. Life Ins. Co. v. R. Co., 25 Conn. 265, 65 Am. Dec. 571. And it is well settled in some states that the mortgagee cannot, after payment of his debt by the underwriter, enforce his• claim against the mortgagor, but that the under writer is subrogated to the rights of the mortgagee; Smith v. Ins. Co., 17 Pa. 253, 55 Am. Dec. 546; Foster v. Van Reed, 70 N. Y. 19, 26 Am. Rep. 544 ; Norwich Fire ins. Co. v. Boomer, 52 HI. 442, 4 Am. Rep. 618. So in Canada; 1 Low. Can. 222. The con trary view, however, has been consistently maintained in Massachusetts; King v. Fire Ins. Co., 7 Cush. (Mass.) 1, 54 Am. Dec. 683.
But an insurance company is not subrogat ed to the rights of a mortgagee who has paid the premiums himself, so as to' demand an assignment of the mortgage before paying his claim when the buildings were burned ; Foster v. Fire Ins. Co., 2 Gray (Mass.) 216; 8 Hare 216.
The insurer, upon paying to the assured the amount of the loss, total or partial, of the goods insured, becomes, without any formal assignment or any express stipulation to that effect in the policy, subrogated in a cor responding amount to the assured's right of action against the carrier or other person responsible for the loss, and in a court of admiralty may assert in his own name that right of the shipper ; Liverpool & G. W. Steam Co. v. Ins. Co., 129 U. S. 397, 9 Sup. Ct. 469, 32 L. Ed. 788. As between a com mon carrier of goods and an underwriter upon them, the liability to the owner for their loss is primarily upon the carrier, while the liability of the insurer is only secondary ; Wager v. Ins. Co., 150 U. S. 99, 14 Sup. Ct. 55, 37 L. Ed. 1013.
Ordinarily as between the insurer, claiming subrogation, and the insured, the amount of the recovery against the person whose tort caused the loss represents the entire loss suffered by the insured ; Stoughton v. Gas Co., 165 Pa. 428, 30 AtI. 1001.
Under a statute directing, through its standard form of insurance policy, the sub rogation of the insurer to the rights of the in sured against the party primarily responsible for the loss, such subrogation is a legal right, which must prevail unless a stronger equity be shown against it ; and, where the insur ed recovers a judgment against such party, the insurer is subrogated to his rights there in ; Stoughton v. Gas Co., 35 Wkly. Notes
Cas. 519.
"An insurance company which has paid a loss upon partnership goods is not prevented, by the subsequent death of one of the part ners and the resulting dissolution of the firm, from maintaining a suit in admiralty in the partnership name to recover the amount of the loss from the carrier." The Queen, 78 Fed. 155.
An insurer upon paying a loss to the as sured can take nothing by subrogation but the rights of the assured, and if the assured has no right of action, none passes to the in surer ; St. Louis, I. M. & S. R. Co. v. Ins. Co., 139 U. S. 223, 11 Sup. Ct. 554, 35 L. Ed. 154; Wager v. Ins. Co., 150 U. S. 99, 14 Sup. Ct. 55, 37 L. Ed. 1013.
The doctrine of subrogation does not apply to life insurance; Connecticut Mut. L. Ins. Co. v. R. Co.. 25 Conn. 265, 65 Am. Dec. 57L But see, 2Utna Ins. Co. v. R. Co., 3 Dill. 1, Fed. Cas. No. 96. An accident insurance com pany does not become subrogated to the rights of the policy holder against one who negligently causes injury, unless there is a provision to that effect in the policy ; Gatz weiler v. Light Co., 136 Wis. 34, 116 N. W. 633, 18 L. R. A. (N. S.) 211, 128 Am. St. Rep. 1057, 16 Ann. Cas. 633.
If one lends money to an insane person to purchase real estate, he cannot be subrogated to the rights of his debtor against the ven dor, so as to compel the latter to return the purchase money to him ; Murphree v. Clisby, 168 Ala. 339, 52 South. 907, 29 L. R. A. (N. S.) 933; and so where one advances money to pay an encumbrance on a minor's prop erty, where he takes as security a deed of trust executed with the sanction of the pro bate court, but which proves to be without le gal justification, he cannot be subrogated to the benefit of the old encumbrance after it has been cancelled on the record; Capen v. Garrison, 193 Mo. 335, 92 S. W. 368, 5 L. R. A. (N. S.) 838. But in Hughes v. Thomas, 131 Wis. 315, 111 N. W. 474, 11 L. R. A. (N. S.) 744, 11 Ann. Cas. 673, it was held that where money is advanced to an executor to pay a mortgage the payor expecting to receive se curity on the fee, whereas the security bound only the life estate, he was entitled to sub rogation to the rights of the mortgagee. The mere payment of the debt at the instance of the debtor does not entitle the payor to sub rogation to the lien of the creditor; In re Coleman, 136 Fed. 820, 69 C. C. A. 496.