tically the same as in the original complaint. As throwing light upon the intention of the plaintiff, we quote from his brief, wherein he says: "The cause of action on the part of the plaintiff is predicated upon his right and interest in and to the lands and premises that form the assets of the North American Coal & Mining Company. The plaintiff claims to have paid for many years the taxes assessed against these lands, in good faith, to protect the assets of the company. The evidence discloses the fact that the North American Coal & Mining Company have done nothing, except to answer in this case by the same attorneys who failed to answer for them in other cases." The only defendants to answer are the Investors' Syndicate, North American Coal & Mining Company, Producers' & Consumers' Co-operative Company. By reference to the case reported in 22 N. D. 452, 134 N. W. 317, it will be noted that, prior to the taking of Beyer into the corporations, an old corporation had been organized, which, however, had never exercised any of its powers. The reference was to the Producers' & Consumers' Co-operative Company, one of the answering defendants herein. They allege that they are the owners of one of the quarter sections of land; the North American Coal & Mining Company alleges that it is the owner of the remaining three quarters, while the Investors' Syndicate sets up the mortgage given by the Letts upon one quarter and the mortgage given by the Coal Company upon the three remaining quarters. They all plead the judgments in the prior suits. as res judicata. The three corporations answer by the same attorneys, ask that the plaintiff's action be dismissed, that he recover nothing herein, and that he be restrained from further asserting any interest in or title to the premises adverse to the defendants. Plaintiff recovered judgment in the court below, and the three above mentioned defendants appeal, demanding a trial de novo.

As will be gathered from the foregoing statement of the case, it is difficult to locate plaintiff's theory of the case; and we are forced, in the interest of justice, and to end, if possible, this protracted litigation, to cover all possible theories of the complaint.

(1) If it is the intention of plaintiff to assert title to the premises in himself, as is evidenced by his plea of ownership and demand for relief, as well as his introduction in evidence of the deeds from the administrator of the Letts' estates, such claim has been successfully

met by the plea of res judicata. The decree entered by the United States district court in the year 1909, wherein Beyer and the Letts were joint plaintiffs in the action to rescind the contract whereby the coal companies were formed, and recover the lands, being decided adverse to them, prevents the assertion now by Beyer either of title in his own name directly, or through the Letts.

assessments

(2) If the complaint be treated as an effort by Beyer to subrogate himself to the interests of the county, as seems to have been adopted by the trial court, we have other and more important matters to consider. We are cited to the case of Title Guarantee & T. Co. v. Haven, 196 N. Y. 487, 25 L.R.A.(N.S.) 1308, 89 N. E. 1082, 1085, 17 Ann. Cas. 1131, wherein the trust company honored a forged check, and with the proceeds paid the taxes upon a piece of land. In allowing the trust company to be subrogated to the interests of the county, the court says: "There is nothing in the nature of a lien for taxes or to prevent the application of the equitable doctrine of subrogation when justice demands it. We think that justice demands its application here. Subrogation is not permitted (1) where the party seeking it has intermeddled with the affairs of the defendant; or (2) where it would prejudice the rights of innocent third parties." The next case cited by respondent is Farmers' Loan & T. Co. v. Stuttgart & A. River R. Co. 92 Fed. 246, wherein the court, after announcing the law about as given in the New York case, says: “I think there is sufficient evidence in the record to show that the company made Barstow its agent for the payment of these taxes, and that he paid them, and thus preserved the interest of the bondholders." Barstow was given judgment for the amount paid, with 6 per cent interest, and was given a lien superior and paramount to other encumbrances upon the railway. See also Goodnow v. Stryker, 61 Iowa, 261, 16 N. W. 486, where it is held that, where a person has paid taxes on land under the impression that he is legal owner thereof, and the true owner adopts such payments and claims the benefit thereof, the party making such payments is entitled to be reimbursed therefor by the owner, and a lien therefor upon the land. See also: Goodnow v. Wells, 54 Iowa, 326, 6 N. W. 527; Redington v. Cornwell, 90 Cal. 49, 27 Pac. 40, wherein it is said: "It is true that the doctrine of subrogation 'is not to be applied in favor of one who has officiously,

and as a mere volunteer, paid the debt of another, for which neither he nor his property was answerable, and which he was under no obligation to pay,' nor where it would work injustice to the rights of others'. It is also true that the plaintiff was not directly liable to pay defendant's proportion of the debts of the corporation; but as a stockholder he had a common, well-defined, beneficial interest, with all other stockholders, in the fund from which defendant's proportion of the debts must have been paid, if not paid by defendant. There can be no doubt that the plaintiff was entitled to contribution from the defendant, to the extent of defendant's proportion of the debt paid. It follows that the payment was not voluntary, since contribution no more than subrogation is allowed in favor of a mere volunteer. But in this case the plaintiff, in addition to contribution, asks to be subrogated to the rights and remedies of Redington & Co. against the defendant, for the purpose of compelling contribution.'” The court then goes on to hold subrogation proper. See: 3 Cook, Corp. 6th ed. § 850; Cooley, Taxn. 2d ed. 466; Pease v. Egan, 131 N. Y. 262, 30 N. E. 102; Wright v. Oroville Gold, S. & C. Min. Co. 40 Cal. 20, 3 Mor. Min. Rep. 558; Bush v. Wadsworth, 60 Mich. 255, 27 N. W. 532, wherein the president, to preserve the property, paid interest notes due upon a mortgage, for which he was allowed to be subrogated to the rights of the mortgagee; Jacobs v. Union Trust Co. 155 Mich. 233, 118 N. W. 921; Home Invest. Co. v. Clarson, 15 S. D. 513, 90 N. W. 153. From the authorities above mentioned, it is apparent that, if Beyer in good faith paid the taxes upon the lands of the coal companies to preserve their property, he would undoubtedly be entitled to recover the sum so paid, with interest, and equity might subrogate him to the interests of the county. Appellant does not strenuously oppose this doctrine, but does insist that the payments made by Beyer were not in good faith. That they were made rather in an effort to himself absorb the assets of the corporations.

(3) Upon this phase of the question, we have to refer again to the history of the case. In 1902, Beyer brought his action to rescind his transaction with the coal company and to recover the land upon which the mine is situated. A few months thereafter he dismissed this action, and began another for the same purpose. This case was

decided by the United States District Court for North Dakota in 1909. Before the decision in the United States court aforesaid, foreclosure proceedings had been begun upon the Dana mortgage. Beyer, intervening therein, positively denied that he was a stockholder in either of the coal companies, claiming that he had rescinded his transaction by which he had obtained his stock, and claimed to be the owner of the mortgage. That litigation was finally decided in 1912. Eighteen days after the final disposition of the said case the present action was begun, based, in part at least, upon quitclaim deeds given by the administrator of the Letts estate to Beyer, which deeds are dated March 23, 1911, and February 15, 1912. Appellant further points out that all of the payments made for taxes were made pending litigation wherein Beyer was attempting to take away from the coal company the lands in question; and they insist that this fact is inconsistent with his present contention, that the payments were made in good faith, to preserve the assets of the company. This is a matter calling for the exercise of the broadest equitable principles. So far as the Investors' Syndicate is concerned, we have, in the foreclosure case just decided by this court, held them a party to an attempt to loot the coal company of its assets. Beyer, while speculating in his original investment, has, nevertheless, been free from any fraud in his transactions. Admitting all that appellants say about him, he is honesty personified, in comparison with Williams and his associates. Considering his provocation, we do not consider the actions to rescind evidence of bad faith upon his part; and we therefore conclude, that equity and good conscience require that the coal companies pay to him the taxes paid by him upon the property at a time when he believed himself to be the owner thereof. All such sums, with interest at the rate of 7 per cent from the date of payments, are hereby declared to be a lien upon the premises, to be enforced according to law by execution sale, if necessary.

(4) Appellants, in anticipation of this situation, claim that the proof is insufficient to show that Beyer paid such taxes. They concede that he has receipts signed by the treasurer of the county for such sums; but claim that the treasurer's receipt is not sufficient, but, in addition, there should have been proof of assessment and levy of the taxes themselves; and we are cited to Swenson v. Greenland, 4 N. D.

31 N. D.-17.

532, 62 N. W. 603.

However, in the case of Blakemore v. Roberts, 12 N. D. 394, 96 N. W. 1029, this court held that, in actions to quiet title to land, the form of a complaint is authorized and prescribed by statute, and the rule announced in Swenson v. Greenland, supra, did not apply to such cases. We do not think any of the corporations named are in a position at this time to make an attack upon the valid ity of those taxes. Under the circumstances, therefore, the proof of payment is sufficient.

(5) It only remains to state that the taxes paid by Beyer, at the time he received his stock and deeded the land to the coal company, being up to and including the year 1894, cannot be allowed to him in this action. No taxes paid upon the northwest one quarter of sixteen, covered by the Dana mortgage, can be recovered, because Beyer's interest in this land has been adjudicated in the case of Investors Syndicate v. Letts, 22 N. D. 452, 134 N. W. 317. The southeast one quarter of sixteen was never formally transferred to the North American Coal & Mining Company, of which Beyer was a stockholder, but the title remained in the Producers' & Consumers' Co-operative Company; but, as those companies are identical, our conclusion is, therefore, that Beyer should recover the amounts paid for taxes upon the southeast one quarter of sixteen and the north half of twenty-one, for the years 1895 and subsequent, and interest thereon at the rate of 7 per cent after each payment, and that he have a lien upon those three quarter sections for the same; and the trial court will enter judgment, authorizing execution sale of said premises to pay said sums according to law. This necessitates a slight modification of the judgment of the trial court, and, as so modified, said judgment is affirmed.