¶1ON REHEARING.
¶2Opinion delivered October 8, 1906.
¶3Appellee presents strongly his case for rehearing, and the court has gone carefully into the facts again.
¶4The first two points made are against the conclusion reached that Mrs. Spurlock conducted the hQtel as a separate business. Counsel overlook the fact that Mrs. Spurlock was corroborated on this point by many disinterested witnesses. The next point is that the court erred in finding that Mrs. Spurlock paid off the $1,000 mortgage on the hotel. Mrs. Spurlock is corroborated on that by three witnesses who testified to statements to that effect made by Spurlock himself.
¶5It is insisted that, because Mrs. Spurlock claimed that there was a contract between her and her husband that she was to run the hotel and pay off the mortgage and have all above the payments on the' mortgage as her earnings, she can not claim subrogation. Counsel overlook the fact that Spurlock positively denies the existence of such a contract. It rested on an affirmation by her and a denial by him, and the court paid no attention to-it, for it could not be said to be proved; and, if it were proved, it was absolutely void, as husband and wife can not contract between themselves. Appellant can not defeat subrogation by interposing a void contract which he. denied had any existence.
¶6Subrogation is of two kinds — conventional and equitable. Conventional subrogation springs out of contracts providing for it, and equitable subrogation springs from the equities of a case, and frequently is the outgrowth of void contracts, sales, mortgages or liens. The court was applying equitable, and not conventional, subrogation in this case. Mrs. Spurlock paid the mortgage to free the common home from its burden, and the divorce has brought to wreck all the common purposes and ends sought to be furthered by lifting the mortgage from the hotel. The rights of the parties must be readjusted, and it seems to the court to be equitable and right to subrogate Mrs. Spurlock to the interest of the mortgagee, whose mortgage on her husband’s property she paid.
¶7The next point made is that the court did not make an equitable division of the property. The court is not clothed with, power, as chancery courts are in many States, to make an equitable division of property on dissolution of a marriage, and did not attempt to exercise such power. The equities of the case considered by the court were not a division of .the property, but what equities she had towards the property which she had freed of mortgage.
¶8Appellee asks that Mrs. Spurlock be charged with rent during the time she ran the hotel. This would manifestly be inequitable. The hotel was a homestead, and there can be no question of rent between husband and wife for the common homestead for themselves and their daughter. Both occupied and enjoyed it, and he received his board of himself and daughter and his taxes from Mrs. Spurlock.
¶9The court has merely applied to the peculiar facts of the case the well-known rules of subrogation.
¶10The motion is overruled.