« AnteriorContinuar »
the years above set forth. Sidney Arthur, came parties and asserted a lien on tract one of the owners of the property, prevailed No. 1 superior to all other liens except upon appellant, Loretta B. Gibson, to pay that of the Western & Southern Life Inall the foregoing taxes under an agreement surance Company. Thereafter appellant, whereby she should be subrogated to the Loretta B. Gibson, became a party to the rights of the taxing authorities to the ex- action, and filed a petition alleging subtent of the taxes so paid by her. On Febru- stantially the facts above set out.
She ary 9, 1912, she paid the city of Covington, further alleged that all the mortgages above the county of Kenton, and the state of referred to were in full force and effect at Kentucky all the taxes due them. On No- the time the taxes became delinquent and vember 29, 1912, the Western & Southern were paid by her, and that by reason of her Life Insurance Company brought two suits payment of the taxes the mortgagees were to enforce its mortgage liens on the two benefited in that the owners of the buildparcels of land. Phillips and Leubrecht beings were enabled to pay interest on the of lien to which one may enforce the equita- | the town, or to answer for his official deble right of subrogation.”
fault. It is only available to the public and So, in Repass v. Moore, 98 Va. 377, 36 S. for the public, and subject to the restraints E. 474, it was held that the plaintiff
, who and safeguards which public use and attendas county treasurer had paid taxes owing by ant public responsibility afford.
No the defendant, was not entitled to be subro- case has come to our attention where a colgated to the lien of the county and state lector who had extinguished all public intertherefor. The court said that in this case est in the taxes by full payment and satisthe treasurer, without previous request or faction was afterwards permitted, unresubsequent promise of indemnity, and with strained by the right of abatement or the no assignment of the tax lien, if it were general safeguards arising from publie capable of assignment, voluntarily paid the interest and superintendence, to pursue the tax which he now sought to recover, into delinquent taxpayers by means of the remethe county and state treasuries; that there dies incident to his former office, including was no such duty imposed upon him, but the right of arrest and commitment. No that it was his voluntary act in derogation man should be permitted to employ for his of the duty imposed upon him by law; and own personal benefits those drastic remedies he was therefore not within the broadest and devised solely and justified only to meet most comprehensive definition of the right sovereign necessity; nor should any man be of subrogation; but that it would not under permitted to serve the most arbitrary proctake to say that a case might not arise in
ess known to the law in his own behalf. which the right of subrogation would be en
The fact that after a certain time taxes are forced for the protection of a collector of subject to extraordinary rate of interest taxes. And in Page v. Claggett, 71 N. H. 85, 51 should not be countenanced. It would en
furnishes a peculiar reason why such policy Atl. 686, it was held that an agreement be
courage official speculation, offer a premium tween a tax collector and a town, whereby to official neglect, and open wide the door the former for a sum of money guaranteed to oppression and abuse." the town against loss on account of unpaid
It was held also in Page v. Claggett, taxes, and the latter agreed that the tax warrants should continue in force until all supra, that the authority to collect on the the taxes were collected, was unauthorized was not given the collector by a statute pro
tax warrants as the assignee of the town and void. Regarding the assignability of viding that his powers should continue until the tax warrants, it was said: “Govern
all the taxes in his list were collected, the mental necessity for prompt and efficient means of obtaining money to meet the pub- within the meaning of the statute, when
court regarding the taxes as "collected," lic expense has brought into use, for the collection of taxes, instrumentalities which, paid by the collector to the town. applied in enforcement of ordinary obli
To permit tax warrants and the remedies gations, would violate the most sacred
for the collection of taxes to be assigned rights of person and property.
would afford such opportunity for abuse and propriety and legality of these summary
oppression that legislative authorization and drastic measures when employed in the should not be found except upon clear enactprescribed way for the public benefit, and ment to that effect. Ibid. under the restraints and safeguards which
And it was held in Page v. Claggett, responsibility to the public imposes and pro- supra, that a taxpayer whose taxes the colvides, are unquestioned.
But a tax lector had advanced to the town, pursuant warrant, with its peculiar attributes, is in- to the agreement, was subject to arrest for separable from the public for whose sover. nonpayment thereof, as the payments by the eign need it exists. It cannot be assigned collector were inoperative, the tax stiil rewith the taxes to whosoever will pay them, mained due, and the warrants were enforcenor can it be employed by the llector tó able by the collector for the town's benefit. reimburse himself for taxes he has been com- In White v. State, 51 Ga. 252, it was held pelled to pay for others, whether in fulfil that a tax collector who had settled with the ment of a special contract of guaranty with state and county for taxes uncollected by
mortgage liens, which the mortgagees, county clerk noted on his books the fact would not otherwise have received. It was that payment was made by appellant. Apfurther alleged in her petition that the liens pellant asked that she be subrogated to for said taxes were not to be canceled, but the liens of the city, county, and state for that the delinquent tax collector and the the taxes so paid by her, and that her liens county clerk were to make such entries on be adjudged superior to all other liens or their books as would show that such tax encumbrances on the two parcels of land. bills had been paid by and assigned to the A demurrer was sustained to the petition, plaintiff, in order that the lien for the same and the petition dismissed. From that might remain unimpaired. The delinquent judgment this appeal is prosecuted. tax collector indorsed on the city tax bills Briefly stated, appellant's contention is the fact that payment was received of ap- that, as she paid the taxes at the instance pellant, and that the bills, including inter- of the owners of the property, and with est and penalties, were assigned to her. The the distinct agreement that she was to be him was not entitled to the immunity from taxes uncollected was held in State ex rel. judicial interference allowed by statute to Riley v. Taggart, 148 Ind. 431, 47 N. E. 831, the state in the collection of taxes.
not entitled to a writ of mandamus to comAlthough subrogation to the rights of the pel the county auditor to place the taxes on public of one voluntarily advancing money tax duplicate for collection for her benefit, to pay the tax on property in which he had where no excuse was offered for not attemptand claimed no interest has been generally ing to collect the tax out of the personal denied, there are several cases in which, property within a year, and nearly twenty under special statutes, the right of subroga- years had elapsed since the payment by the tion has been upheld.
treasurer, during which, it was insisted, the Thus, in Hart v. Tiernan, 59 Conn. 521, real estate had passed to innocent parties. 21 Atl. 1007, it was held that under the The court said it was true that if the taxes statutes applicable to the case requiring a were still due the state, the lien would contax collector to pay over all taxes, whether tinue in its favor until they were paid, but collected or not, within one year after they that the assignee of the treasurer had no became due, and providing that if any taxes such right. remained unpaid to the collector after The general rule was laid down in Title settlement, he might maintain an action in Guarantee & T. Co. v. Haven, 196 N. Y. 487, his own name and recover the same, a tax 25 L.R.A. (N.S.) 1308, 89 N. E. 1082, 1085, collector who had accounted for uncollected 17 Ann. Cas. 1131, on facts not within the taxes of the defendant succeeded to the scope of the note, that there is nothing in rights and remedies of the public as to the the nature of a lien for taxes or tax liens, and might maintain an action in ments, or in the fact that such lien exists his own name to foreclose the same, and in favor of a sovereign taxing power, to this, too, without an assignment of the liens. prevent the application of the equitable See also Cole v. Rice, 74 Conn. 680, 51 Atl. doctrine of subrogation when justice de1083, recognizing the right of a tax collector mands it. in that state to succeed to all the rights That a purchaser of land of a corporation under a tax lien that can be asserted by the on foreclosure, who, before the sale is apmunicipality
proved or he has complied with his bid, And subrogation of a county treasurer to voluntarily pays a claiia for taxes, without the right of the state and county was said knowledge of any dispute as to its validity, in Schaum v. Showers, 49 Ind. 285, to arise and is denied credit therefor when completunder the Indiana statute providing that ing. his purchase, may be subrogated to the whenever any county treasurer or collector claim for such part of the taxes as the propshall have charged himself with and ac- erty was clearly subject to, see Walters v. counted for a tax that shall not have been Charleston Mills, 48 L.R.A. 503, 40 C. C. A. paid to him, such tax shall be deemed as 108, 99 Fed. 825. due to him personally, whether in or out of In Thomas v. Hammer, 13 Lea, 620, it was office, and may be collected by him in the held that a tax collector who had accounted same way as other taxes due and unpaid for taxes on land sold by him therefor, and are collected. It was held, however, in this bid in for the county, the sale not being case, that a treasurer who had advanced recognized as valid, was entitled to be money for taxes was not entitled to a lien subrogated to the lien of the state and counon the property prior to that of mort- ty for the tax. gagees, by virtue of a statute providing that Under a provision of the Municipal Code if he on a settlement stands charged with that assessments may be recovered or the taxes remaining unpaid, and does not receive lien enforced in the name of the corporation, a credit therefor, he may collect the tax for an assignee from a municipality of a claim his own use, at any time within a year after for a sewer assessment cannot sue upon it settlement, by distress and sale or by an in his own name, although the Code expressaction of debt in his own name.
ly authorizes the assignment of such claims. Under the Indiana statute an assignee of Scully v. Ackmeyer, 2 Cin. Sup. Ct. Rep. a county treasurer who had accounted for 296.
R. E. H.
subrogated to the rights of the taxing au- ! Inerny v. Reed, 23 Iowa, 410. Therefore, thorities, she is not a volunteer, and is in the absence of statutory authority, the therefore entitled to a lien on the property taxing officers upon whom these broad pow. under and by virtue of the general doctrine ers are conferred have no authority to as. of subrogation, applicable to cases where a sign tax claims and vest in the assignee third party, by agreement with the owner, the power to enforce their collection. This discharges a lien or encumbrance on the disposes of appellant's case in so far as she owner's land. 27 Cyc. 468. In this state we relies on the assignment by the delinquent have no statute authorizing assignment of tax collector. Counsel for appellant insist tax claims by the taxing authorities, and that appellant is not a volunteer because subrogating a stranger who pays taxes of the special agreement. It must be reunder an agreement with the owner that he membered, however, that a tax is not a debt will be so subrogated to the lien of the in the ordinary sense of the word, and is taxing authority. The only statutes which not therefore subject to the control of the we have on the subject provide that a lien parties. As neither the state nor any of holder, or the occupant or tenant of land, its municipalities may assign their tax or the bailee or person in possession of claims, we are unable to see upon what personal property, may pay the tax which theory or sound public policy it can be held the owner ought to pay, and recover from that the owner of property can, in effect, the owner, and give him a lien on the prop-make such an assignment by procuring a erty taxed to secure the payment thereof. stranger in interest to pay the taxes under Kentucky Statutes, $$ 4032, 4033. We also an agreement that he will be entitled to subhave a statute providing that the purchaserrogation. If this were the rule, the effeet of property it an invalid tax sale shall would be the same as if the taxing authorhave a lien on the property for the amount ity themselves had made the assignment. of taxes and costs paid by him, and for In our review of the authorities bearing which the property is liable. Section 4036. on the question, we have been unable to Aside from the authority contained in these find any well-considered case holding that statutes, it is also generally held that a a stranger who has no interest to protect person who has an interest in property, and is entitled to subrogation where he paid who, in order to protect that interest, is the taxes under a mere agreement with the compelled to pay the taxes thereon, is en- owner that he was to be subrogated. In titled to subrogation. This rule is applied every case we have been able to find, subin favor of mortgagor and mortgagee, ven- rogation is applied under the authority of dor and vendee, grantor and grantee, ten particular statutes, or on the ground that ants for life, tenants in common, lessor the payment was made to protect some and lessee, executors, etc. Cooley, Tax. property right. We are not therefore dispp. 812–824. Then, too, in some jurisdic- posed to hold that all the machinery for coltions subrogation is allowed where pay- lecting taxes may be turned over to an enment is made under a mistake as to own- tire stranger in interest under and by virership (Kemp v. Cossart, 47 Ark. 62, 14 tue of a mere agreement made with the S. W. 465; Goodnow v. Moulton, 51 Iowa, owner of the property. In our opinion, 555, 2 N. W. 395; Ingersoll v. Jeffords, sound public policy forbids it. Powers in55 Miss. 37; Schaefer v. Causey, 8 Mo. App. tended to be exercised by public officers 142), though this doctrine is denied by the would be conferred on private individuals. Federal Supreme Court (Iowa Homestead Not only so, but mortgagees and other lien County v. Valley R. Co. [Iowa Homestead holders would be frequently placed at a Co. v. Des Moines Nav. & R. Co.) 17 Wall. great disadvantage. They might go on 153, 21 L, ed. 622).
for years in the belief that the taxes had In the case before us appellant had no been regularly paid by the owner, only to interest whatever in the property. She did find that they had been paid by a stranger not pay the taxes under a mistake that she who was asserting a lien on the land in an owned the property. She paid the taxes at amount sufficient practically to destroy the the instance and request of the owner, and value of their security. under an agreement that she was to be sub- There is no merit in the contention that rogated to the lien of the city, county, and mortgagees would not be prejudiced. If state. As before stated, there is no statute the taxes were paid by the owner, the lien in this state conferring on tax collecting would be discharged. If paid by a stranger, officers the power to assign tax claims. the lien would continue in force. If not The state and its various subdivisions are paid by the owner, and the law did not given broad powers in matters of taxation. permit a stranger in title to pay them, These powers are conferred on state and the mortgagees could take prompt steps to municipal officers to be exercised by them, | protect their interests. While not a volunand not to be delegated to others. Mc- 'teer in the ordinary sense of that word, ap
pellant was a volunteer in its legal sense, | knowingly boards a train not scheduled to for subrogation to the lien of the taxing stop there, although the gateman and brakeauthorities upon the payment of the taxes
man made no objection to his boarding the was not authorized by any statụte, nor was train, if the conductor, upon ascertaining it necessary to protect any interest which train would not stop, and advised him to
his destination, informed him that the she had in the erty. We, the re,
leave it at a suitable intermediate stopping conclude that, in the absence of a statute place and wait for another train. authorizing subrogation, a mere stranger who has no interest in the property to pro
(January 19, 1915.) tect, but who pays the taxes thereon mere. ly under an agreement with the owner that he should be subrogated to the lien of
of the Circuit Court for Knox County in the taxing authorities, is not subrogated plaintiff's favor in an action brought to to such lien as against persons having valid recover damages for defendant's alleged liens on the property.
breach of duty in refusing to stop one of Judgment affirmed.
its trains at plaintiff's destination and permit him to alight therefrom. Reversed.
The facts are stated in the opinion.
Messrs. Black, Black, & Owens, with KENTUCKY COURT OF APPEALS.
Mr. Benjamin D. Warfield, for appellant:
Defendant was not liable for carrying LOUISVILLE & NASHVILLE RAILROAD plaintiff past his destination. COMPANY, Appt.,
Louisville & N. R. Co. v. Miles, 100 Ky.
84, 37 S. W. 486; Louisville & N. R. Co. J. P. GADDIE.
v. Warfield, 30 Ky. L. Rep. 352, 98 S. W.
313; Illinois C. R. Co. v. Cruse, 123 Ky. (162 Ky. 205, 172 S. W. 514.) 463, 8 L.R.A.(N.S.) 299, 96 S. W. 821, 13
Ann. Cas. 593; Hancock v. Louisville & N. Carrier carrying passenger beyond station not regular stop - liability.
R. Co. 27 Ky. L. Rep. 434, 85 S. W. 210; A railroad company is not liable for carry. Cincinnati, N. 0. & T. P. R. Co. v. Raine, ing past his destination a passenger who' 130 Ky. 454, 19 L.R.A. (N.S.) 753, 132 Am. Note. Carrier: duty and liability to | 52 S. E. 253, 6 Ann. Cas. 22; Noble v, Atchi
passenger who boards a train that son, T. & S. F. R. Co. 4 Okla. 534, 46 Pac. does not stop at his destination. 483; Black v. Atlantic Coast Line R. Co. 82
S. C. 478, 64 S. E. 418; Gulf, C. & S. F. R. The general rule seems to be that one Co. v. Moore, 98 Tex. 302, 83 S. W. 362, 4 who boards a train not scheduled to stop | Ann. Cas. 770; Texas & P. R. Co. v. White, at his destination may be required to leave 4 Tes. App. Civ. Cas. (Willson) 451, 17 S. the train at the first regular stopping place W. 419; Texas & P. R. Co. v. Bell, Tex. prior thereto, if there be one; if the first Civ. App. 412, 87 S. W. 730; Albin v. Gulf, regular stop is beyond his destination, he C. & S. F. R. Co. 43 Tex. Civ. App. 170, 95 must pay fare to such place, and on refusal S. W. 589; Texas & P. R. Co. v. Ludlam, 6 the train may be stopped and he must get C. C. A. 454, 13 U. S. App. 540, 57 Fed. 481. off or suffer ejection. As subsequently And it seems also to be a well-settled shown, there is some conflict as to the rule that it is the duty of a person about rights and duty of the passenger when he to take passage on a train to inquire when has been misdirected by an employee. and how he can go or stop according to regu.
That a rule that certain trains only shall lations, and if he makes a mistake which is stop at certain stations is a reasonable rule not induced by the agents of the railroad which a railroad company has the right to company, he has no remedy against the prescribe in the absence of statutory regula company for the consequences. St. Louis, tion or prohibition has been held in Alabama I. M. & S. R. Co. v. Rosenberry, 45 Ark. 256, G. S. R. Co. v. Carmichael, 90 Ala. 19, 92 Am. Neg. Ças. 122; Alabama G. S. R. Co. L.R.A. 388, 8 So. 87; Louisville & N. R. Co. v. Carmichael, 90 Ala. 19, 9 L.R.A, 388, 8 v. Maxwell, Ala. 66 So. 669; St. So. 87; Louisville & N. R. Co. v. Maxwell, Louis, I. M. & S. R. Co. v. Atchison, 47 Ark.
66 So. 669; Pittsburgh, C. & St. 74, 14 S. W. 468, 2 Am. Neg. Cas. 136; L. R. Co. v. Nuzum, 50 Ind. 144, 19 Am. Atchison, T. & S. F. R. Co. v. Gants, 58 Kan. Rep. 703; Ohio & M. R. Co. v. Applewhite, 608, 5 Am. St. Rep. 780, 17 Pac. 54; Han- 52 Ind. 540; Ohio & M. R. Co. v. Hatton, cock v. Louisville & N. R. Co. 27 Ky, L. Rep. 60 Ind. 12; Atchison, T. & S. F. R. Co. v. 434, 85 S. W. 210; Louisville & N. R. Co. Gants, 38 Kan. 608, 5 Am. St. Rep. 780, v. Miles, 100 Ky. 84, 37 S. W. 486; Duling 17 Pac. 54; Usher v. Chicago, R. I. & P. R. v. Philadelphia, W. & B. R. Co. 66 Md. 120, Co. 71 Kan. 375, 80 Pac. 956; Flood v. 6 Atl. 592; Logan v. Hannibal & St. J. R. Chesa peake & 0. R. Co. 25 Ky. L. Rep. Co. 77 Mo. 663; Sira v. Wabash R. Co. 115 2135, 80 S, W. 184;. Louisville & N. Ř. Mo. 127, 37 Am. St. Rep. 386, 21 S. W. 905; Co. v. Miles, 100 Ky. 84, 37 S. W. 486: Hutchinson v. Southern R. Co. 140 N. C. 123, Duling v. Philadelphia, W. & B. R. Co. 66
St. Rep. 400, 113 S. W. 495; Cincinnati,, him to alight therefrom. There was a verN. 0. & T. P. R. Co. v. Rose, Ky. dict and judgment for the plaintiff for 21 L.R.A.(N.S.) 681, 115 S. W. 830; Louis- $1,000. The railroad company appeals. ville & N. R. Co. v. Summers, 133 Ky. 684, Plaintiff testified that he is now the pres118 S. W. 926; Cook v. Beaumont, S. L. & ident of the People's Bank at Pineville, W. R. Co. Tex. Civ. App. —, 160 S. W. and resides in that city, but that in Janu123.
ary, 1912, he lived in a brick building about Mr. B. B. Golden for appellee.
250 yards from the depot at Ely's, a station
in Knox county on defendant's line of rail. Hannah, J., delivered the opinion of the road; that on January 17, 1912, he purcourt:
chased from the defendant's ticket agent J. P. Gaddie sued the Louisville & Nash- at Frankfort a ticket which entitled him ville Railroad Company in the Knox circuit to be transported to Elys, via Louisville; court to recover damages resulting from an and that he left for home that afternoon. alleged breach of its duty as a common car- At Louisville he changed trains, boarding rier of passengers in refusing to stop one the next train out of Louisville for Corbin, of its fast passenger trains at the place arriving at Corbin about midnight. There of plaintiff's destination and permitting' it was again necessary to change trains, Md. 120, 6 Atl. 592; Haskins v. Lake Shore assume that such stop will be made, unless & M. S. R. Co. 4 Ohio L. J. 951; Noble v. notified otherwise in the customary manAtchison, T. & S. F. R. Co. 4 Okla. 534, 46 ner, and so is not bound to make special Pac. 483; Caldwell v. Lake Shore & M. S. and independent inquiry. Wieland R. Co. 8 Pa. Co. Ct. 467; Black v. Atlantic Southern Þ. Co. 1 Cal. App. 343, 82 Pac. Coast Line R. Co. 82 S. C. 478, 64 S. E. 418; 226. Gulf, C. & S. F. R. Co. v. Moore, 98 Tex. 302, 83 S. W. 362, 4 Ann. Cas. 770; Texas Liability for refusal to stop through train & P. R. Co. v. Bell, 39 Tex. Civ. App. 412,
at passenger's destination. 87 S. W. 730; Albin v. Gulf, C. & S. F. R. Co. 43 Tex. Civ. App. 170, 95 S. W. 589; A railroad company which establishes Plott v. Chicago & N. W. R. Co. 63 Wis. ' reasonable rules and regulations for the 511, 23 N. W. 412; Schifler v. Chicago & running of its trains, incurs no liability beN. W. R. Co. 96 Wis. 141, 65 Am. St. Rep. cause of failure to stop all its trains at 35, 71 N. W. 97, 3 Am. Neg. Rep. 121; every station, especially where there is no Texas & P. R. Co. v. Ludlam, 6 C. C. A. evidence that ample facilities and accom454, 13 U. S. App. 540, 57 Fed. 481.
modations are not afforded to all who may So, an instruction that recovery may be desire to reach a particular station at had for failure to stop the train at a pas- which the train does not stop. Kyle v. senger's destination notwithstanding a Chicago, R. I. & P. R. Co. 105 C. C. A. 151, regulation that such train shall not stop 182 Fed. 613. at such place, if a passenger boards it
And especially has a railroad company without knowing that it would not stop the right to run through trains, where it there, and is accepted as a passenger with- is using the tracks of another company, out protest, is erroneous where it ignores and under a traffic arrangement it is bound the duty of the passenger to exercise ordi- not to do a local business. Flood v. Chesanary care to ascertain whether the train peake & 0. R. Co. 25 Ky. L. Rep. 2135, 80 which was boarded was the proper train. S. W. 184. St. Louis Southwestern R. Co. v. Campbell, So, in the absence of a special contract 30 Tex. Civ. App. 35, 69 S. W. 451.
to that effect, a passenger has no right to But in Delmonte v. Southern P. Co. 2 require a train to stop at a particular Cal. App. 211, 83 Pac. 269, 19 Am. Neg. station where, according to the regulations Rep. 81, in affirming a judgment for ejec- of the company, it is not scheduled to stop, tion of a passenger who boarded a through and does not ordinarily stop. Atchison, T. train in reliance on its custom to stop at & S. F. R. Co. Cameron, 14 C. C. A. 358, an intermediate station, it was held proper 32 U. S. App. 67, 66 Fed. 709. to instruct the jury to the effect that while Therefore where boards a train, it is the duty of a passenger before he knowing before hand that it will not stop takes a train to ascertain whether it will at his destination, he cannot recover damstop at his destination, yet he may depend ages for being carried past such destion custom or wait until he gets express nation. Texas & P. R. Co. v. White, 4 Tex. notice from some source of a change. App. Civ. Cas. (Willson) 451, 17 S. W. 419.
And where, under the regulations of a And one who, through his own fault or railroad company, a freight train carries mistake, gets on a train which does not passengers to a certain station whenever stop at his destination, cannot recover damthere is necessity for handling freight at ages for refusal of the conductor to stop the that station, and it is the custom, when no train at such place, contrary to the regulapassengers are to be taken, to lock the tions. Ohio & M. R. Co. v. Applewhite, 52 caboose or to announce before leaving that Ind. 540. no stop will be made there, one who has And where one boards a through train traveled on that train before has a right to l without making any effort to ascertain