Troy v. Protestant Episcopal Church , 174 Ala. 380 ( 1911 )

ANDERSON, J.

As a general rule it is the duty of a life tenant to pay all ordinary tax and to keep the property in repair, but an assessment for a public improvement is not an ordinary tax. “If the assessment is for something in the nature of a permanent improvement of the whole estate, it may be ratably and equitably divided between the tenant for life and remainderman, but where the improvement is of a temporary character, calculated to benefit only the life interest, the assessment must be paid entirely by tbe life tenant.” — 16 Cyc. 634, and cases cited in note.

The bill avers such permanent, constructive, and compulsory improvements, as distinguishable from ordinary repairs or temporary improvements, as to make the assessment in question a charge against the whole estate and which should be ratably and equitably divided between the complainant and respondents.

The right to contribution does not depend upon contract. “It is a principle of equity having its foundation in natural justice,; that, when one discharges more than his just portion of a common burden, another who has received the benefit ought to refund to him a ratable proportion.” — Carter v. Fidelity Co., 134 Ala. 369, 32 South. 632, 92 Am. St. Rep. 41; Owen v. McGehee, 61 Ala. 440. “Where one of several tenants in common or joint tenants of land removes a burden resting upon the joint estate, he is entitled to just contribution from the others, so that the burden may be equal. This rule applies alike to the payment of a mortgage, a purchase-money lien, taxes assessed upon the land, ground rent or the removal of a superior title.” — 7 Am. & Eng. Encyc. Law, 353, 354. The general rule in equity is that all the estate concerned, whether defined by quantity of interest and duration, or by extent of territory, shall contribute to the incumbrance according to their relative value when the debt falls due. — Danford v. Smith, 23 Vt. 247. So a life tenant may have contribution against the remaindermen. — Daviess v. Myers, 13 B. Mon. (Ky.) 514; Miller’s Estate v. Tuck. (N. Y.) 346. When, however, one discharges a lien upon the common property, and as to which there was no personal liability against the other owners, disconnected from any agreement between the parties and from any circumstances which clearly establish that one must have necessarily been authorized to act for the other, he must in the assertion be limited to the declaration and enforcement of a lien against the property. If a different rule prevailed, every part owner would constantly incur the hazard of being required to pay for the removal of incumbrances much in excess of the value of the estate. — Freeman on Cotenancy, § 263.

The assessment in question is no more than a mere lien on the property, and not a personal charge against the owner. — City of Huntsville v. Madison County, 166 Ala. 389, 52 South. 326, 139 Am. St. Rep. 45. Therefore, in the absence of some agreement for personal responsibility, the discharge of the lien by one owner would not entitle him to a personal judgment against the other, and his only resource is to enforce a lien against the other interest by way of equitable contribution or subrogation, and, in order to do this, he must first aver and prove that he has discharged the lien on the common property; otherwise, he has no standing in court as the right to equitable contribution is dependent upon a previous discharge of the lien.

The present bill avers no discharge by the complainant of the lien of the city upon the common property. It merely sets out the payment of one-tenth of same, without averring that it was made before or after the bill was filed, but, if made before, a mere effort to partially discharge the lien would give the complainant no right to proceed against the remaindermen. He must first discharge the lien entirely before he can maintain á bill to enforce an equitable lien by way of contribution upon the interest of the respondents.

While the assessment can, under certain conditions, be made payable in installments, yet each installment is not a separate and distinct lien enforceable in piecemeal, but is entire and enforceable as a whole demand in case of a default. — Sections 1401 and 1402 of the Code of 1907; Williams v. Bergen, 127 Cal. 578, 60 Pac. 164.

It may be that the complainant has a remedy by a bill for an equitable apportionment of the assessment (Chamberlain v. Thomas, 163 N. Y. 214, 57 N. E. 487; Thomas v. Evans, 105 N. Y. 601, 12 N. E. 571, 59 Am. Rep. 519; Peek v. Sherwood, 56 N. Y. 615), but the present bill does not proceed upon this theory, and, if it did,, the city of Decatur would be an indispensable party.

We will not put the chancellor in error in dismissing the bill, whiclr was done without prejudice.

The decree of the chancery court is affirmed.

Affirmed.

Simpson, Mayfield, Sayre, and Somerville, JJ., concur.