The opinion of the court was delivered by

To determine the legal proposition embodied in this case we must decide whether the Kansas Loan and Trust Company or its assignee, the Dartmouth Savings Bank, is entitled to be subrogated to the rights or to be treated' as the equitable assignee of the Lombard Mortgage Company. It is clear that the loan company or its assignee is not entitled to be subrogated to the rights of the Lombard Mortgage Company or entitled to the protection afforded by the lien of its mortgages^. They did not either directly or indirectly pay the Lombard Mortgage Company the amount due upon the mortgages or any part thereof. In fact, the Lombard mortgages had been paid by Hackett and released of record about a month before the loan company had paid out anything upon the loan. Hackett forged a mortgage upon the land, and obtained the money from the loan company by means of a forged order, at a time when the land was unincumbered. For the same reasons the loan company or its assignees cannot be consid*469ered the equitable assignee of the Lombard Mortgage Company. Hackett tendered a forged note and mortgage and 'a forged order purporting to have been signed by Mr. and Mrs. Mahanes, and the loan company paid him the money upon them.

Whatever may have been the status of the transactions between Hackett and Mahanes, and whatever rights the plaintiff below might have established under proceedings in garnishment or otherwise, it cannot be said that the necessary elements entered into this case to entitle said plaintiff to be subrogated to the rights of the Lombard Mortgage Company. The money of its assignor did not pay the Lombard Mortgage Company. Its assignor had parted with no money until about a month after the Lombard mortgages had been paid and satisfied of record. If the loan company had not paid out the money upon the forged note, mortgage, and order, the status of the Lombard mortgages would not have been changed. In fact the loan company was not instrumental, either directly or indirectly, in procuring the payment or release of the Lombard mortgage or in furnishing the money for that purpose. We are compelled to hold that the third instruction given by the court was erroneous. The plaintiffs in error were entitled to a judgment upon the special findings made by the jury.

The judgment of the district court is reversed, and the case remanded, with instructions to render judgment for the defendants below upon the special findings of the jury.