¶1On the first of June, 1888, John. Berry, then the owner of the 117 acres of land in DeKalb county, Missouri, involved in this proceeding,, borrowed from William Q. Mintern $1100, due in five years, and to secure the payment thereof executed a deed of trust on said lands. He died in said county in January, 1891, leaving a wife and eight cMldren,, and having first executed his will containing the following three clauses, and constituted his wife and his eldest son, the plaintiff Thomas Berry, executors thereof.
¶2“Sec. 1. To my beloved wife, Clarissa Berry, I give and bequeath all of my personal, estate, with full power to sell and dispose of the same, for the purpose of paying all of the debts owing and contracted by me. ■
¶3“Sec. 2. To my said wife I devise and bequeath full power and control of all lands and real estate of which I may di'e seized, until our youngest child shall become of legal age, and from the issues, rents and profits of said lands, to support and maintain and educate our minor cMldren.
¶4“Sec. 3. Upon our youngest child living becoming of legal age, I give and bequeath all the remainder of my estate, real, personal and mixed, in equal proportion, share and share alike, to the heirs of my body and hers, viz.: Thomas, Louisa, James, Maida, Killian, Charles, Carey and Carrie, and my said wife.”
¶5*695In June, 1893, the date of the maturity of the aforesaid note, Thomas Berry, then sole executor, his mother having previously died, paid $200 on the principal, and executed an extension agreement whereby the payment of the balance of said note, to-wit, $900, was extended for five years, making its maturity the first of June, 1898. On the first of June, 1894, the executor also paid $140 on the principal of said note. Thereafter the interest on said note was regularly paid until six months before its final maturity, to-wit, June 1,1898, at which time it amounted to $782,801 On February 9, 1898, W. M. Stigall, who was the guardian and curator of the persons and estates of the four children of said John Berry who were still minors, together with Louisa Masoner, one of the adult heirs, filed in the DeKalb Circuit Court their petition for the appointment of some suitable person as trustee under the will to succeed Mrs. Berry, and Mr. Stigall was duly appointed. None of the other children were joined in that proceeding. The order of appointment contained a direction to said Stigall, as trustee, “to take charge of the aforesaid estate of John Berry, deceased, and rent the same to the best advantage; and after paying all taxes and insurance and paying for necessary repairs on said real estate, to apply the balance of proceeds from said rent to the purposes set out and mentioned in said will;” and required him to-give a bond of $600. A few months after this appointment, the said note matured, and Stigall, the trustee, borrowed $782.80, being the amount then due on said note, from one Thomas L. King, who applied the same to the payment thereof and the cancellation of the said note and the deed of trust securing the same. He executed a note to the said Thomas L. King for the same amount, signed by him as trustee; and to secure the payment of this latter note, executed as such trustee, a mortgage on the said land of John Berry, deceased, which was duly recorded. The note was. due one year *696after date. On December 5, 1902, the payee of said note, nothing having been paid thereon, demanded a new note and mortgage for the amount then due, both of which were duly executed by the trustee, the new mortgage recorded, and the former note and mortgage cancelled. On February 5, 1904, the trustee filed a settlement, showing a balance of $124.95 of rents collected after taking credit for certain disbursements. Pie had been previously sued by the plaintiffs for an accounting and praying his removal as trustee. That suit on appeal went to the Kansas City Court of Appeals (Berry v. Stigall, 125 Mo. App. 264), where the judgment of the lower court confirming the settlement made by the trustee was affirmed. The present action was afterwards brought by all the children who survived John Berry, except one, who is represented by its assignee, and was a'gainst Thomas L. King, for the purpose of annulling and declaring void the last mortgage executed to him by the trustee, W. M. Stigall, as before recited. One of the children was still a minor and sued by his guardian. Thomas L. King since the institution of this suit died, and it is revived against W. M. Stigall and W. A. Wilson, his administrators. Upon a hearing in the circuit court there was a decree entered annulling and cancelling the mortgage described in the petition, from which the defendant executors have appealed to this court.
¶6
¶7That equity seeks to prevent the unearned enrichment of one at the expense of another is the motive for an important part of its jurisprudence. [2 Pomeroy’s Equitable Remedies, sec. 920.] This same idea is expressed in the maxim of the common law: , Nemo debet locupletan ex <üteri/us incommodo,” and more fully in the maxim of the civil law: “Jure naturae aequum est, neminem cum alterius detrimento et injuria fieri locupletiorem.” The principle is applied to aid those who have paid the debt of another under circumstances in which equity *697will imply a sufficient motive, whether such motive consists in the protection of an interest in the person invoking it, the performance of a duty pertaining to a fiduciary relation, or the invitation of the public, or of him whose debt is paid. While it does not extend its assistance to a mere volunteer who either foolishly or for charity’s sake pays the debt of another, it relieves those whom the learned author already cited has divided into the three following classes: “First, those who act in performance of a legal duty, arising either by express agreement or by operation of law; second, those who act under the necessity of self-protection; third, those who act at the request of the debtor, directly or indirectly, or upon invitation of the public, and whose payments are favored by public policy.” [Ibid., sec. 921.] Judge Story in his work on Equity Jurisprudence (vol. 1 [13 Ed.], p. 615), characterizes this principle as a doctrine belonging to an age of enlightened policy and refined, although natural, justice.
¶8In this case the defendants’ intestate furnished the money to be used, and which was used, to pay off a mortgage on the farm of which the plaintiffs were the beneficial owners, one of them, Mr. Thomas Berry, being the executor of his father’s will, through which they all derive their title. They now not only desire to keep the money but they claim that the gift was made in a bungling way, and ask the aid of this court to compel the representatives of the benefactor to put the finishing touches to it by cancelling the mortgage which he received as his security, believing it to be valid. The case presents itself in two questions: (1) Will the defendants be permitted to keep the money, and (2) if they keep it, will the court perfect their title by cancelling and removing the mortgage as a cloud upon it?
¶9There is no intervening interest either legal or equitable to consider. The defendants seek reimbursement out of the same security which was released by *698the payment of the debt, and which was available to the original creditor. He simply asks back the same fund which he advanced and which the debtor still holds intact. A majority of the present owners who are plaintiffs in this same case were then infants. It will not be claimed that their disability on that account protects them, for, had they themselves borrowed the money for the payment of the debt and made the mortgage, they could, upon becoming of age, have disaffirmed it only by returning the money .which they received and had invested in the land, which would represent the fund for that purpose. [MacGreal v. Taylor, 167 U. S. 688.] It seems to me that, in equity, this case stands upon exactly the same foundations. Mr. Stigall was trustee under the will of Mr. John "W. Berry for the minor heirs of the testator who were the only beneficial owners until the arrival at age of the youngest of them. Until that time he had the absolute control of the land subject to the duty to keep it and make it earn the best income he could for the benefit of the minors. The order of court appointing him the successor of the original trustee named in the will expressly required this. In doing it he had the right, as held in Berry v. Stigall, 125 Mo. App. 264, to borrow money for this purpose and to repay it, with interest, from the income of the land, which was entirely devoted by the will to their support, maintenance and education during their minority, and was then, and then only, to pass by the terms of the devise to these plaintiffs and their mother to whose rights they have succeeded by her death. He was also guardian of the persons and estates of the minors, although his power with reference to the land came from the appointment under the will. He took it subject to a mortgage made by the testator in his lifetime which would become due years before the expiration of the trust estate, and it cannot be denied that it was his duty, so far as he could, to preserve it from that mort*699gage, for the benefit of the trust. That he would do this- was necessarily assumed by the testator, and the creation of the trust amounted to a direction to do that which was essential to its execution.
¶10I do not understand it to be questioned that had Mr. Stigall been, in his own right, the owner of the same interest in these lands that he held as trustee for the minor heirs of Berry, he would have had the right to protect himself by paying off the incumbrance and charging the amount so advanced against the land. The plaintiff contends that however kindly equity might look upon the act, if done for himself, and from purely selfish motives, it has no'regard for one who does the same thing in the performance of a duty toward others — that, although he would have acquired merit in equity by protecting himself, he became an intermeddler when he attempted to protect the children whose •only means of sustenance and education had been placed by the law in his keeping. This naturally revolts the sense of right and justice out of which equity jurisprudence proceeds, and lends its remedies to the enforcement of trusts, and the protection of children and others under disability to care for themselves. It is natural that we should expect it to vindicate itself from the aspersion, and we are not disappointed.
¶11It is immaterial in what form the equity in such cases is administered, or what name we adopt to describe it. In a case like the present, when no-intervening interest exists, its object is simply to recover compensation for the.money advanced, out of the estate or property benefited. In cases where interests have intervened paramount at law to the debt of the person so paying an incumbrance, the latter will, under circumstances calling for such rfelief, be revived or considered in force in equity for his benefit, and he will he substituted or subrogated to its lien. The right, as we have seen, will not arise in favor of a mere' volunteer or intermeddler, but it exists in all cases where *700the payment is made at the invitation of the public, or is favored by public policy. It is upon this principle that purchasers at void judicial and quasi-judicial sales are protected, as in Valle v. Fleming, 29 Mo. 152. The same principle applies to void execution sales, the reason in all such cases being that public policy demands that such purchases should be encouraged by giving equitable relief to purchasers whose money has been honestly applied to the purposes to which the property has been devoted, although, on account of the insufficiency of the proceedings they have failed to obtain title. The same public policy protects those having charge of the interests of minors and persons of unsound mind in their efforts to protect their estate, and the courts have not been slow to recognize equities growing out of such transactions. A few instances of their practical treatment of this particular phase of the question will illustrate the principles applied by them in administering remedial equity in such cases.
¶12In Coleman v. Frazer, 3 Bush (Ky.), 300, the wrongdoer in obtaining a note and mortgage from a person of unsound mind was the applicant for relief on the ground that a part of the money represented by the security had been applied by an attorney representing the lunatic in relieving his lands from certain proper charges and incumbrances. In holding that such relief should be given the court said: “If it is true, as the evidence conduces to prove, that the appellants, or one of them, furnished money which was used by an attorney, acting as such for Frazer, to relieve his estate of an incumbrance, such advancement was not only a sufficient consideration for an implied promise to repay the money advanced, but, by subrogation, at least, entitled the party making the advancement to a charge on the estate, upon the well-established principle that lunatics, like infants and married women, are chargeable as for necessaries, for *701whatever may be furnished them which is reasonably necessary and beneficial to them.”
¶13In Cutter v. Burroughs, 100 Me. 379, the guardian of a minor sold land which had been devised to another as trustee for the maintenance and education of the ward out of the rents and profits, and in case these were not sufficient out of the items of the estate in the order named. The trust failed by the death of the trustee, but the guardian proceeded to sell certain parcels of the land for the purposes of the trust. These sales were, of course, held to be without authority and void. A part of the purchase price, was, however, applied to the purposes of the trust, and on one of the lots valuable improvements were made by the purchaser. The suit was brought by the purchasers for the purpose of charging the amounts so expended upon the land. In granting the relief asked, the court, quoting from Valle v. Fleming, supra, said: “Nothing could be more unjust, we may repeat, than to permit a person to sell a tract of land and take the purchase money and then because the sale happens to be informal and void, to allow him, or, which is the same thing, his heir, to recover back the land and keep the money.”.
¶15*701In Donohue v. Daniel, 58 Md. 595, a guardian executed a mortgage on the land of his wards to secure the payment of a loan for $1000, a large portion of which was expended for the payment of taxes, ground rents and other incumbrances due and owing upon the property at the time, and was borrowed for that purpose. It was held, at the suit of the lender, that he was entitled to be subrogated to the benefit of the liens which his money discharged. The Court of Appeals said: “Notwithstanding the mortgagor may not have been properly authorized to execute the mortgage so as to bind the remainder interests of his children and wards, yet if he did remove those incumbrances existing against his wards and their property in his *702hands, he would have a just and legitimate claim, against them, and he would be entitled to the benefit of the lien which he raised.” I see no ground for distinction between that case and this except that in. this case Mr. Stigall, the borrower, in addition to his obligation as guardian to apply the property in his hands under the supervision and direction of the court to the support, maintenance and education of his wards, was charged by the terms of the will of Berry,, independently of any'action of the probate court, with the management of the lands, the collection of the-rents and profits and their application for that purpose. Without violating the duty so imposed and assumed he could not permit this control to be taken from him by foreclosure and sale under the existing incumbrances. In preventing this he is entitled to the commendation of the court instead of its condemnation. Although, in his attempt to obtain the money, he exceeded the limit of his authority in attempting to mortgage the land, so that that act gave no other strength to the position of the lender than as an expression of the intention that he was to be substituted to the security of the incumbrance which his money was to discharge, yet the court will give effect to the transaction to the extent of making the substitution. While it does not come with good grace from any of these plaintiffs to ask a stranger to contribute the money used by the guardian to preserve their patrimony, such a claim comes with peculiarly bad grace from those who were of full age at the time, and stood by, giving the efforts of the guardian in their behalf the approval of their silence. This is especially true of the plaintiff Thomas Berry, the executor of the will, who had in his control whatever means there was, if any, to prevent the sacrifice of the land, and is now not only accepting the resultant estate as a gratuity, but is seeking the aid of the court to remove from the record the evidence of the gift.
¶16*703We have been able to find bnt a single adjudicated case which tends to support the position' of the plaintiffs. The case referred to is Capen v. Garrison, 193 Mo. 335, decided by this court in 1906. It does not go to the extent to which we are asked to go here, as no trust was involved other than the general duty of a guardian with respect to the estate of his ward. It does not, however, accord with the equitable doctrine applied by courts in such cases, and, in so far as it holds that the right to subrogation can only be founded in a purely selfish motive and cannot rest upon the attempted performance of a duty like that which results from the relation of the guardian to his ward, I do not think it should be followed.
¶17For the reasons given I think that the judgment of the circuit court, which seems to have been founded upon the case last cited, should be reversed, and the cause remanded with directions to proceed to the entry of judgment in accordance with this opinion.
¶18PER CURIAM IN BANC. — This cause coming into Banc and being reheard there the opinion of Brown, Commissioner,.is adopted as that of the court; the directions to the lower court being modified as indicated in the concurring opinion of
¶19CONCURRING OPINION.
¶20I concur in the opinion of our learned Commissioner, Brown, not only for reasons so ably stated by him, but also for the following reasons :
¶22If the English language has any meaning and if the law of Missouri has any application to wills and trusts created thereby, then the will of John Berry, deceased, created a trust in the lands described in the pleading in this case, in favor of his wife and children, to the effect that they should be supported, and the children educated out of the rents and profits thereof. This has not and cannot be seriously questioned.
¶23Unfortunately, the testator died leaving an incumbrance upon the land and failed to appoint a trustee to administer the trust.
¶24Under those conditions Thomas Berry, one of the plaintiffs, undertook to administer upon the estate of his father, and having no means with which to discharge the mortgage mentioned in the evidence, renewed the same for five years, and before it matured, made final settlement of his • father’s estate, leaving the mortgage unsatisfied.
¶25Presently the mortgage became due, and payment was demanded, and there being no funds on hand with which to pay it, and the property being subject to sale in satisfaction thereof, and the trust thereby being placed in extreme jeopardy, the circuit court of the county in which the land was situated and the parties interested resided, under its ancient chancery powers, appointed the defendant Stigall, trustee, to administer the trust created under and by virtue of the will.
¶26Among other things it became his duty to preserve the trust fund, the land in question, in the same manner as if it was his own, in order to carry into effect the trust created by the will; and the only possible way that could be done was to satisfy the mortgage, and prevent the threatened sale; and there being no money on hand with which he could pay off and satisfy the mortgage, it clearly became his duty to borrow money for that purpose, which he did, and satisfied the same therewith.
¶27*705However, lie should first have applied to the circuit court for an order authorizing him to borrow the money, pay off the old mortgage and execute a new one to secure the new loan.
¶28Had he done neither, he would not have exercised ordinary care, which the law required of him, in the preservation of the trust fund placed in his hands; in which event the land would have been sold and the trust fund would thereby have been sacrificed to all, including plaintiff, which of course, would have rendered the trustee personally liable for a breach of. trust.
¶29The only complaint, in effect, counsel for plaintiffs makes, is, that the trustee, Stigall, did not procure an order of the court which had ample power to make it, authorizing him to borrow the money with which to lift the mortgage, and to execute another to secure the money so borrowed for that purpose.
¶30Strictly speaking, that may have been true (but I am not here prepared to so state, for I have not investigated that question in regard to this class of instruments). Since, however, there is no claim made but what the trustee acted in the best of good faith, and that the money borrowed by him and secured by his deed of trust on the land went in payment of the original mortgage placed upon the land by the testator, no possible damage or harm was done to the plaintiffs; but upon the contrary, they were greatly benefited thereby, in that the trust fund was saved from destruction, worth about $6000, by the discharge of the mortgage which was for a sum about one-fifth the real value of the land.
¶31For the reason stated, if there ever was a cause where the law of subrogation should apply, with all of its vigor, force and natural justice, this is that case, and a court of chancery and good conscience should, *706without hesitation, lay her gentle hand of equity upon the situation and mete out natural justice to all.
¶32Entertaining these views of the case, I am clearly of the opinion that the judgment is erroneous; and that the appellants, as representatives of the King estate, . are entitled to be subrogated to all the rights and equities in and .to the land in question, that the former mortgagees had therein, prior to the payment of their mortgage by Stigall, trustee.
¶33The judgment should therefore be reversed and cause remanded with directions to the circuit court to enter judgment for appellants according to the views herein expressed, and that the court foreclose the King mortgage in the manner provided for by law in such cases.