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Nothing of this manifest want of prudence, while the incompetent or negligent is the is shown in this case now under considera- exception. The fact that here and there a tion. Kraft, the hirer, is shown to have driver carelessly or recklessly converts his been a man accustomed to the use of autovehicle into an engine of injury or destrucmobiles. True, he had not before used a tion to others is not a sufficient reason for Ford car, but he had operated several ring the owner of such vehicles for others, and with the explanation and in- hire to test and ascertain the competency struction which it is conceded he received and skill of every customer before intrustconcerning the manner of hanuling this car, ing him with the custody of a car. we are disposed to hold that defendants Nor is there any likeness, as counsel cannot be charged with any failure of duty seems to think, between this case and that to the plaintiff or to the public in per- of the livery stable keeper who wilfully mitting him to drive it. To say otherwise lets for hire an animal he knows to be and hold with plaintiff's contention would vicious or dangerous. If the car in this be to extend the law of liability for negli- case was defective in some respect, which gence to an unprecedented degree, and to rendered it incapable of control or made it place a ruinous burden upon the business a source of special danger, and defendants of letting vehicles for hire.

had allowed it to go out in that condition Our attention is also called to the case and thereby plaintiff had been injured, a of Tuller v. Talbott, 23 III. 357, 76 Am. very different question would be presented. Dec. 695, where the driver of a stagecoach But so far as shown the car was in perplaced the reins in the hands of a passenger fect condition, and the sole cause of plainby whose negligence another passenger in tiff's injury was the carelessness or forgetthe coach was injured, and the owner was fulness of Kraft, who, in an emergency, held to respond in damages. This and other threw a lever the wrong way, thereby caussimilar cases cited are to be classed with ing a sudden acceleration of speed instead the English precedents above referred to, of checking it as he intended. Had he and are not here in point. The owner of been driving a hired team and in some way the stage line was common carrier of had heedlessly got the reins crossed in his passengers. The passenger who was injured hands, thereby running over and injuring had no control over the driver. The owner the plaintiff, counsel would hardly advise was in duty bound to protect the passenger his client that the owner of the outfit was against the negligence of the servant, and liable in damages for the hirer’s negligence. the act of the servant in passing the reins The fact that the vehicle in this case hapto a third person was in legal effect the pens to have been an auto car instead of a act of the owner, who thereby became re- horse and buggy or a coach and four calls sponsible for the negligence of the substi- for the application of no different rule. tuted driver. The defendants in this case The testimony in the case discloses no were not carriers. They let their vel les cause of on against the appellees, and for hire, assuming no responsibility for the judgment below is therefore affirmed. negligence or recklessness of the hirer, save, perha-, under exceptional circumstances Deemer, Ch. J., and Evans and Preston, such as we have already adverted to. In JJ., concur. the absence of evident unfitness of a customer applying for a vehicle, we reason why the owner should be held to make an investigation into his qualifica

KENTUCKY COURT OF APPEALS. tions as a driver.

LORETTA B. GIBSON, Appt., II. It is next said that an automobile is of such character that while, perhaps, not

WESTERN & SOUTHERN LIFE INSURper se a dangerous instrument, it may

ANCE COMPANY et al. easily become such, and the owner is therefore bound to the exercise of greater care (161 Ky. 810, 171 S. W. 390.) than would be required were there less danger in its operation. There is more or less Tax payment by stranger agreedanger in the use of vehicles of any kind. ment for subrogation effect. The motor cycle, the bicycle, the stagecoach,

In the absence of a statute permitting tax the ordinary carriage drawn by horses, all officials to assign tax claims, a property have their possibʻlities of peril, and there

Note. Right of one who voluntarily is room for difference of opinion concern- advances money to pay the taxes on ing the various degrees of danger to be ap- property of another to be subrogated prehended therefrom. The great body of to the rights of the public. those who use the various instrumentalities As to the right of one advancing money to of travel are persons of ordinary prudence,' pay off a lien or encumbrance, upon security

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owner cannot by contract confer a right of, city, county, and state for taxes paid by subrogation to the claims of the public upon petitioner, and to have her lien adjudged a stranger who pays his taxes at his re- superior to those of existing mortgages on quest, which will preserve a lien superior to the property. Affirmed. that of existing mortgages on the property, although the tax collector attempted to pre

The facts are stated in the Commissionserve the lien by an assignment on the tax

er's opinion. books.

Mr. A. E. Stricklett, for appellant:

Petitioner is not a stranger, intermeddler, (December 18, 1914.)

or a volunteer, because the taxes upon the

parcels of real estate were paid at the in

a of the Criminal, Common Law, and ured to the benefit of the mortgagees, thereEquity Division of the Circuit Court for by removing her from the rule of a mere Kenton County, dismissing a petition filed volunteer, stranger, or intermeddler. to obtain subrogation to the liens of the Wilkins v. Gibson, 113 Ga. 31, 84 Am. St. which proves defective, to be subrogated to Am. St. Rep. 977, 55 Atl. 664, where taxes such lien or encumbrance, see notes in 5 of a railroad company were paid by one who L.R.A. (N.S.) 838, 46 L.R.A. (N.S.) 1049; the court said was under no obligation to and 50 L.R.A. (N.S.) 489.

pay them, but who was, it appears, a bondAs to right of surety to be subrogated to holder of the company, subrogation was depriority of state or United States in pay: nied although there was an understanding ment from assets of debtor, see note in 29 between the company and the party paying L.R.A. 240, 248.

the taxes that the latter might hold the And generally as to right of one paying amount paid as a preferred claim to the stranger's debt to be subrogated to the right same extent as the state treasurer (to whom of the creditor, see notes in 23 L.R.A. 124, the taxes were paid) might have held it had and 16 L.R.A. (N.S.) 233.

payment not been made. In this case the The present note is confined to cases in court said that it was the duty of the comwhich the one paying the taxes of another pany to pay the tax; that another at its rehad and claimed no interest in the property quest had paid the debt, and that the comto protect. Cases are therefore excluded pany could not by agreement give him a where the tax was paid by a mortgagee, lien on the mortgaged property which would vendee, or other person having an interest take precedence over that of the bondholdin the property, or by one claiming or be ers; also that the transaction was a loan, lieving at the time he paid the tax that he and the lender did not acquire such lien had an interest, even though it afterward upon the mortgaged property as the state proved that he had no interest. The note may have had. does not include cases passing upon the But a tax collector of a town was allowed, question as to the right of subrogation of a it appears, in a district court case in Massapurchaser at a tax sale (see note to Hol- chusetts, Re Grant, 14 Am. L. Rev. 801, to land v. Hotchkiss, L.R.A.1915C, 492, as to prove, as a privileged claim against the right of purchaser at invalid tax sale to re-estate of a bankrupt, taxes advanced by him imbursement for taxes paid as a condition for the bankrupt under an agreement made of equitable relief); neither does it include between the collector and the assignee that cases dealing merely with the right of the if the former would advance the amount of one paying the tax to recover the same in a the tax, in order to secure the diseount alproper action from the taxpayer, as subro- lowed if it was paid before a certain day, he gation to the rights of the public in respect might stand in the place of the town assessto taxes paid involves, of course, more than ing the tax. the mere right of recovery from the tax- In Shanks v. Stephens, 4 Ky. L. Rep. 838 payer or the right to an equitable lien on (abstract), it is said: “A party who has land.

paid taxes for another, and taken his obliNo case has been found in which the gation for the amount so paid, is not enfacts were similar in all respects to those in titled to be substituted to the rights of the Gibson v. WESTERN & S. L. Îns. Co., but the state, but his claim stands on the footing decision in that case appears to be in ac- of an ordinary debt.” cord with the principles declared in the ma- And in Kocher v. Kocher, 56 N. J. Eq. 547, jority of the cases passing upon the question 39 Atl. 536, it was held that a

son who of subrogation to the rights of the public of loaned money to his father to pay benefit one who voluntarily advances money to pay assessments which were a lien on land was taxes on land in which he has and claims no not entitled to subrogation to the lien of the interest. In these cases generally, however, assessments. there was no agreement for subrogation, and In McInerny v. Reed, 23 Iowa, 410, it was no attempted assignment of the tax lien, as held that a city could not assign a special in the reported case. But there is authority tax for street improvements, so as to entitle for the proposition that without a statute the assignee by suit in his own name to colauthorizing them to do so, officials cannot lect the same from the taxpayer, and that assign a tax lien; and in Mersick v. Hart- one who had purchased the property from ford & W. H. Horse R. Co. 76 Conn. 11, 1001 the city at a void sale for the tax could not,

Rep. 204, 38 S. E. 374; Bohn Sash & Door Rep. 2369, 67 S. W. 372, 68 S. W. 461; Co. v. Case, 42 Neb. 281, 60 N. W. 576; Barker v. Boyd, 24 Ky. L. Rep. 1389, 71 S. Emmert v. Thompson, 49 Minn. 386, 32 Am. W. 528; Treadway v. Pharis, 13 Ky. L. St. Rep. 566, 52 N. W. 31; 37 Cyc. 468; Rep. 788, 18 S. W. 225; Jones v. Louisville Ogden v. Totten, 17 Ky. L. Rep. 1390, 34 Tobacco Warehouse Co. 135 Ky. 824, 121 S. W. 1081; Louisville Bkg. Co. v. Rein S. W. 633, 123 S. W. 307; Bartley v. Knott, hardt, 4 Ky. L. Rep. 620.

140 Ky. 288, 130 S. W. 1096; Sgobel v. Petitioner was entitled to a lien superior Cappadonia, 8 App. Div. 303, 40 N. Y. Supp. to the liens of the mortgagees to the ex- 946. tent of the taxes paid by her.

Mr. S. D. Rouse, for appellee Insurance Connor v. Home & Sav. Fund Co. Bldg. Company: Asso. 26 Ky. L. Rep. 109, 80 S. W. 797; Taxes are not a debt; and one paying Allen v. Perrine, 103 Ky. 516, 41 L.R.A. taxes assessed against the property of an351, 45 S. W. 500; Coleman v. Frazer, 3 other has no right of subrogation, except Bush, 300; Gunn v. Orndorff, 23 Ky. L. as provided by statute. therefore, enforce collection from the tax- , where the tax was paid by a mortgagee, the payer by a suit in his own name, as the court in Sperry v. Butler, 75 Conn. 369, 53 equitable assignee of the city. Regarding Atl. 899, said: "Subrogation is an equitathe right of the city to make an assignment ble, and not a legal, right. Its foundation, of taxes, it was said: “It would not do to it is said, is in equity and benevolence. hold that a city could delegate or farm out

It is a doctrine, therefore, which either its taxing power or its power to en. will be applied or not according to the dicforce the collection of taxes. It would be a tates of equity and good conscience, and constartling proposition to affirm that a city siderations of public policy. When the case could, for example, sell and assign its tax | is one of the subrogation of the individual list to an individual, and authorize him to to public rights and remedies, the situation exercise the high and delicate powers con- assumes an aspect not presented where the ferred upon the corporation. Why not? substitution relates to private rights. QuesThe legal answer is that these powers are tions of public policy, questions as to the conferred upon the municipality to be exer- propriety of turning over the governmental cised by it, not to be delegated by it to machinery to individuals and conferring others." It was said also that if the tax upon them the powers of the organized pubwere an ordinary debt, and if the ordinary lic, at once arise. The inquiry becomes one principles of law applicable to dealings be not of legislative power to provide for a tween private individuals were applied, it complete or partial substitution, but one of could not be denied that the plaintiff in judicial discretion in the administration of this instance would become the equitable as equitable principles under equitable consignee of the city and subrogated to all its siderations. So it is that courts ought to rights; but that the tax was not an ordi- hesitate, and have hesitated, to apply the nary debt arising out of contract, express doctrine of subrogation to cases where the or implied, though partaking somewhat of substitution would result in conferring upon the nature of a debt; that without a stat individuals rights and powers peculiarute a city could not levy nor collect the tax, ly designed for and adapted to public pur. and the taxpayer was bound to pay, if at all, poses, and as a part of the governmental only by virtue of the power given to the city machinery, without statutory sanction, exto levy and collect; also that to allow the press or implied. The power of city before judgment to barter and sell as- taxation is one of the drastic powers exsessments by express contract, assign its ercised by governmental bodies.

Its maright to collect, and by virtue of such sale chinery is skilfully designed to accomplish and assignment invest the assignee with the the desired results most certainly and power to sue and collect in his own name, effectually. It is adapted to its uses, would be to open a most dangerous door, but not to private, unrestrained exercise. leading on the one hand to fraud against the Therefore it is that, in the absence of legiscity, and on the other to oppression of the lation expressly or by reasonable implicitizen or property owner.

cation authorizing the substitution of the So, in Brown v. Sheldon State Bank, 139 individual for the community, the powers Iowa, 83, 117 N. W. 289, the court laid specially created as incidental to the exerdown the rule that the right of a county to cise of the public right of taxation ought a lien for taxes was not one capable of not to become delegated to private persons assignment, saying that the right of the by judicial intervention, unless, indeed, it county is measured not by contract, but by be in rare and extreme cases." statute, and is the right only to assess and In Griffing v. Pintard, 25 Miss. 173, it was collect, which cannot be farmed out to held that a tax collector who advanced private individuals; also that it should not money for taxes on property of another was require argument to make it clear that, not subrogated to the rights and remedies where there is no right or power of assign- of the state against the delinquent tax payer. ment. there can arise no right of subroga- So, in Hinchman v. Morris, 29 W. Va.

673, 2 S. E. 863, it was held that in the In denying the right of subrogation, even settlement of a decedent's estate, a sheriff



1 Cooley, Tax. p. 1; 2 Cooley, Tax. p. 812; Clay, C., filed the following opinion: McInerny v. Reed, 23 Iowa,' 410; Hinch | Sidney Arthur and others are the owners man v. Morris, 29 W. Va. 673, 2 S. E. 863; of two apartment buildings in the city of 37 Cyc. 375, 468; Allen v. Perrine, 103 Ky. Covington, and the lots on which they are 516, 41 L.R.A. 351, 45 S. W. 500.

located. On April 29, 1905, they mortgaged Mr. Robert C. Simmons, for appellees one of the buildings to the Western & Leubrecht et al.:

Southern Life Insurance Company to secure There is no equitable principle presented a loan of $27,000, for which they executed in this case to support a subrogation. their promissory note payable eleven years

Caine v. Rich, 33 Ky, L. Rep. 261, 110 from date. Thereafter. they mortgaged the S. W. 289; Jones v. Louisville Tobacco same building to Thomas H. Phillips and Warehouse Co. 135 Ky. 831, 121 S. W. 633, George Leubrecht to secure certain promis123 S. W. 307; McInerny v. Reed, 23 Iowa, sory notes aggregating $6,900. On August 410; Hinchman v. Morris, 29 W. Va. 673, 8, 1906, the same parties mortgaged the 2 S. E. 863.

other building to the Western & Southern who in the lifetime of the decedent had paid startling proposition to affirm that under taxes on his property, instead of returning our law a sheriff, or anyone else for his own it as delinquent, was not entitled to be benefit, could thus enforce a lien on land. subrogated as to the taxes paid to the rights Yet if the sheriff without any statute can be of the state; and that, there being no re- subrogated to the rights and remedies of the quest, express or implied, by the taxpayer state for the collection of taxes, he can, of for such payment, and no ratification there course, enforce the lien in this arbitrary of, the sheriff was not only not entitled to manner. For if is entitled to be payment out of the estate in preference to subrogated to the rights of another, such the general creditors, but had no enforceable subrogation acts as an equitable assignment claim against the estate. It was said that of the debt, and carries with it not only all a tax in its essential characteristics is not a

the creditor's rights, but also all his reme. debt, and that, “if taxes, whether state, dies." It was said, also, that if the sheriff county, or municipal, are not debts, but are

was subrogated to the rights and remedies charges imposed upon the taxpayers in of the state, he would be entitled to eniorce invitum by the exercise of the sovereign any of these rights, and to resort to any of power of the state, then, as nothing but the remedies after any length of time; for debts or contracts can be assigned either at subrogation, being an implied assignment, law or in equity, and subrogation, because transfers not only the right, but al:0 all the one has paid a debt to the original creditor, remedies, which, but for the assignment, the is in effect an equitable assignment of the assignor would have had; and, as there is debt by the creditor, it must follow that taxes of no description can be assigned at the remedies of the state, except as to the

no statute of limitation which bars any of law or in equity; and so, of course, one who time within which taxes may be distrained pays

the taxes of another, whether or not he be the sheriff or collector, has no right to be for, the sheriff, when subrogated to the subrogated to the rights and remedies of the rights of the state, would be subjected to

no such bar. state, county, or municipality, as the case

The court in Hinchman v. Morris, supra, may be. The power to collect the tax is conferred by the sovereign state on

referred with approval to the case of lecounty or a municipality, or, in case of the Inerny v. Reed, 23 Iowa, 410, saying that. state tax, the power is exercised by the while the latter was a case of 'municipal state itself both of levying and collecting taxation, in its general reasoning it was

state and county This sovereign power to collect taxes in the equally applicable to mode prescribed by the state cannot, if cor

taxes; that there may be some special rect principles are followed, be exercised by reasons why the power to collect municipal any individual for his own benefit, any more

taxes should not be communicable to indithan the other sovereign power of levying viduals; but that on the other hand there taxes can be exercised by him.

To are special reasons why the power to collect sell a citizen's land for the nonpayment of state taxes should not be communicable to taxes on it in the way authorized by the law anybody, and that the reasons which forbid is the exercise of a sovereign power of the such a transfer are at least as strong as state, which be justified only by those which forbid the transfer of municipal the absolute

necessity that the state taxes. should receive promptly the taxes to Hinchman v. Morris, supra, was decided which it is entitled, in order to carry on the under the statute law of West Virginia as government and prevent its coming to an it was prior to 1881. In that year, as ap: end. For this reason the legislature thought pears from the case, a statute was enacted proper by the provisions of the Code of 1860 | providing that if a sheriff pays any taxes to permit the enforcement of the lien on into the treasury before he has collected the land for taxes assessed on it, by a sale of same, he shall have the same remedy for the the land or of a portion of it at public collection thereof by distress, or otherwise, auction for cash, without any suit or other as if the same had not been paid to the legal proceedings. It would indeed be a 'state, except that he shall not have a lien



Life Insurance Company to secure a loan, same in the name of the commonwealth. o: $30,000, represented by nine promissory Thereafter suit was instituted by the county notes. While all these mortgages were in attorney to enforce the lien of the comfull force and effect, the owners defaulted monwealth. The city taxes on the first parin the payment of half the city taxes for cel of land for the years mentioned were the year 1908, and all the taxes for the $1,843.27. The state and county taxes, years 1910 and 1911. They also failed to with interest and penalty, were $418.44. pay the state and county taxes for the year The city taxes on the second parcel of land 1910. The city of Covington, through its amounted to $1,827.44, while the state and delinquent tax collector, regularly adver-county taxes, including interest, costs, and tised the taxes as delinquent on each of said penalty, amounted to $418.44. The city of parcels of real estate for said years. The Covington, through its delinquent tax colsheriff of Kerton county advertised and lector, was about to institute action in the sold each of the parcels for state and county Kenton circuit court to enforce its lien on taxes for the year 1910, and purchased I said parcels of land for the taxes due for therefor on the real estate on which the , extend the time of their payment. Public taxes are assessed.

policy and the law require that an officer inIn Mercantile Trust Co. v. Hart, 35 L.R.A. trusted with the collection of taxes neces352, 22 C. C. A. 473, 40 U. S. App. 559, 76 sary to the support and proper administraFed. 673, it was held that a county treasurer tion of the government should discharge his who received checks for taxes required to duties with promptness and fidelity, and if be paid in cash, and thereupon paid over the he has been remiss or delinquent in the peramount to the state, city, or board of edu- formance of his trust, it may well be doubtcation, made such payment voluntarily, and ed if he is entitled to subrogation under any was not entitled to be subrogated to their circumstances. But, however this may be, it rights in the taxes paid; and the court as. is clear that he is not entitled to it to the signed, as an additional reason for refusing prejudice of the rights of others.” subrogation, that it was claimed in this The court also in Chaffe v. Ludeling, 34 instance as against bondholders under a La. Ann. 962, intimated that one paying mortgage from the taxpayer, authorizing taxes on the property of another was not enforeclosure in case of default in payment of titled to be subrogated to the rights of the taxes, the taxes having, because of the treas- state to a preference over the claims of a urer's action for several years, appeared mortgagee. In this case, where a vendee of upon the record as paid, and the bondhold property subject to a mortgage claimed the ers having no knowledge or notice that they right of subrogation to the lien of the state had not been paid by the mortgagor. for taxes in preference to the mortgage, the

And where a sheriff accounted for, but court said that if he paid the taxes before he failed to collect, taxes, when the owner had acquired the property, under no circumpersonal property on the premises from stances could he have a claim to subrogawhich collection could have been made, it tion. was held in Allen v. Perrine, 103 Ky. 516, In Furche v. Mayer, Tex. Civ. App. 41 L.R.A. 351, 45 S. W. 500, that the 29 S. W. 1099, it was held that the plaintiff, sheriff's right of subrogation, if any, to the who, at the request of the defendants, in lien of the state for the taxes, was subject order to prevent a sale of the latter's propto the prior equity of a mortgage, the lien erty for taxes, paid them and received a of which had attached before the lien for note for the amount advanced, was not entaxes.

titled to subrogation to the lien for the Also, in Wallace's Estate, 59 Pa. 401, it taxes in favor of the state and city. The was held that in the settlement of a dece-court said: “In the case of ordinary liens, dent's estate, a tax collector who, during one who discharges the lien at the request of period of six years,

in the dece. the lien holder, or does so by agreement bedent's lifetime, while there was sufficient tween the debtor and lien holder, or to propersonal property to satisfy the claim for tect himself from the lien, becomes subrotaxes, had paid taxes on his property and gated to the rights of the original lien hold. obtained a judgment therefor against him, er. We find no well-considered case holding was not entitled to be subrogated to the a person entitled to subrogation where priority of the state's lien for taxes, so as to he pays off the lien debt simply upon obtain a preference over a prior judgment the request of the debtor, unaccomcreditor of the decedent. It was said that panied by an agreement of subrogation when the collector paid the taxes to the to the discharged lien,' or 'circumstances proper officers entitled to receive them, the from which such an agreement may be imlien for taxes was discharged; that, alplied. No agreement of subrogation, or though discharged at law, the lien, if justice facts from which it may be reasonably imrequired it, might be kept alive in equity plied, were alleged in this case, and we do for the benefit of a paying surety; but that not think the facts alleged entitled the apthe tax collector could not be regarded as a pellant to that relief.

Aside from surety. “It was his duty to collect the taxes this view of the case, we do not think the and pay them over without delay, and he statutory lien existing in favor of the had no authority to grant indulgence, or to government for taxes due is that character


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