Belleclair Planting Co. v. Hall , 125 Ark. 203 ( 1916 )

Hart, J.

(after stating the facts). Counsel for the defendants claim that this suit was instituted under Section 7131 of Kirby’s Digest and that the decree should be reversed under the authority of Woodall v. Delatour, 43 Ark. 521 and Peay v. Feild, 30 Ark. 600. Section 7131 of Kirby’s Digest was in force at the time the decisions in the cases referred, to were rendered and reads as follows:

“Every attorney, agent, guardian, executor or administrator, seized or having the care of lands as aforesaid, who shall be 'put to any trouble or expense in listing or paying the taxes on such lands, shall.be allowed a reasonable compensation for the time spent, the expenses incurred and money advanced as aforesaid, which shall be deemed in all courts a just charge against the person for whose benefit the same shall have been advanced, and the same shall be preferred to all other debts or claims, and be a-hen on the real estate as well as the personal estate of the person for whose benefit the same shall have. been advanced.”

(1) In each of those cases there was no averment that the person who paid the taxes was seized of or had the care of the owner’s land in any capacity. The amount paid for taxes on the personal property was included in the judgment'and declared to be a lien upon the real estate. There was no distinction recognized by the trial court as to whether the taxes were paid on personal or real estate. The court held that it was error to hold that there was a lien upon, the real estate for taxes paid on the personal property, because the person paying the taxes did not bring himself within the terms of the statute. So here the plaintiff would not be entitled to recover under section 7131 of Kirby’s Digest because he has not brought himself within the terms of the statute by averring or showing that he was seized of or had the care of the defendant’s land in any capacity. It does not follow however that because he was not entitled to recover under this statute, that he was not entitled to recover at all.

Subrogation is an equitable and not a legal right. Being a creature of equity it will not be enforced where it will work an injustice to those having an equal equity. It is contended by counsel for the defendant that Hall paid the taxes at the request of Lilly individually and that Lilly covenanted in his deed to the Belleclair Planting Company when he conveyed the lands to it, that, he would pay the taxes for the year 1911. Hence they claim that if it be conceded that Hall acquired any right of subrogation by the issuance of the tax receipts and payment of the taxes at the request of Lilly, that right must be subject to the prior equity of the defendant corporation on the covenant in the deed of Lilly.

Counsel would be correct in this contention if this testimony was undisputed or if the chancellor had found the facts in their favor. The chancellor, however, found against them as to the facts on this point. The chancellor found that Lilly as a representative of the Belleclair Planting Company made an agreement with the sheriff to issue a tax receipt to the lands to that corporation and agreed that the corporation would pay him back the taxes. At the time the agreement was made Lilly resided in Mississippi County and had charge of the affairs of the corporation and was president of it. He was known to be insolvent by the sheriff, who stated that he would not have made such an agreement with Lilly individually. Under these circumstances we think that Lilly had the apparent, if hot the real authority, to make the agreement testified to by Hall, for the corporation, in regard to the payment of the taxes, and that the chancellor was warranted in so finding. Under this finding there was no prior equity in favor of the defendant corporation.

(2.) Hall paid the taxes at the request of the defendant corporation and under an express agreement upon its part that it would repay him therefor. He is entitled to judgment against the corporation for the amount of taxes so paid. The legality of the taxes is not disputed. They were a paramount lien on the lands. It was the duty of the owner to pay them. This was necessary to protect its interest. Hall did not act officiously in paying the taxes. He acted in good faith upon the express promise of the corporation to repay him. No prior equities intervened and no right of a third party would be affected by charging the land with a lien in favor of Hall for the * taxes paid by Mm.

While it might not be said that Hall is entitled to enforce the lien of the State on the said lands by way of subrogation, yet under the circumstances of this case we are of the opinion that a lien in his favor arises in equity, tl at will protect him and that he is entitled to have the lands charged with a lien for the payment of the taxes on them.

Therefore the decree will be affirmed.