Republic Building & Loan Ass'n v. Webb , 12 Pa. Super. 545 ( 1900 )

Opinion by

Rice, P. J.,

At the sheriff’s sale of the defendant’s real estate under an execution issued upon a judgment on a bond accompanying a mortgage given by her predecessor in title, the mortgagee became the purchaser at the price of $600, the mortgage debt being $2,000. During the defendant’s ownership taxes had been assessed against her amounting to $128.49, which were unpaid at the time of the sheriff’s sale, and under the statutes were first payable out of the proceeds of sale after payment of the costs of sale. After delivery of the sheriff’s deed the mortgagee brought suit against the defendant to recover the amount of these taxes, alleging in its statement of claim that it was compelled to pay them to the sheriff in order to obtain the deed.

1. That the assessed owner of seated land is personally liable for the taxes, notwithstanding the fact that under the statutes they are alien or charge upon the land cannot be questioned. Nor is that liability extinguished, or reduced pro tanto, by a transfer of the title to another during the tax year. In the absence of agreement taxes on real estate are not apportionable among the different persons who may become owners of it during the year; the person charged at the beginning of the year is liable for the taxes for the whole year, though he alien before the day of appeal: Shaw v. Quinn, 12 S. & R. 299; Densmore v. Haggerty, 59 Pa. 189; King v. Mount Vernon Building Association, 106 Pa. 165. It follows that the question of the defendant’s personal liability for the taxes of 1898 is not affected by the fact, set up in the affidavit of defense, that the plaintiff went into possession under the sheriff’s deed in that year and received the rents thereafter.

2. The defendant alleges that the taxes for the year 1897 were registered taxes and were “ fully reached by the proceeds of the sheriff’s sale and were satisfied and discharged by it.” The quoted part of the averment is true of the taxes of both years. We do not understand the plaintiff’s allegation to be, that it paid the taxes in addition to its bid, but only that in complying with the bid as a lien creditor purchaser it was compelled to pay that part of its bid in cash, which it would not have been compelled to do if the defendant had discharged her personal obligation. Thus construed, the plaintiff’s statement is in harmony with the defendant’s version of the transaction, and the question for decision may be stated as follows: Can a mortgagee maintain assumpsit against the grantee of the mortgagor for the amount of taxes assessed upon the land during the grantee’s ownership and paid out of the proceeds of a sheriff’s sale under a judgment on the bond accompanying the mortgage, when the effect of such distribution of the fund is to reduce the sum which otherwise would be distributable to the mortgagor?

In Hogg v. Longstreth, 97 Pa. 255, it appeared that the owner, of premises subject to a mortgage given by his predecessor in title neglected to pay the .taxes for five years. The mortgagee obtained judgment on his mortgage and sold the land at sheriff’s sale, he becoming the purchaser at a price insufficient to pay the taxes in arrear; consequently their lien was not divested. Subsequently, in order to prevent a sale of his land under a judgment that the city had obtained for the taxes of the first three years, and a distraint of his goods for the taxes of the other two years, he paid them and then brought suit to recover the amount from the person who was owner at the time they were assessed. It was held that he was entitled to recover. Mr. Justice Tettxkey who delivered the opinion of the Supreme Court said: “ There was a strict legal liability on the defendant to pay the taxes, and it was his duty. Prompt payment of taxes is to the public advantage. Attempts by him who owes and ought to pay them to evade payment, or shift the burden upon another ought not to be encouraged. The defendant has shown nothing which in good conscience should relieve him. He wittingly became owner and held possession of the lots subject to the mortgages, and had as little right to create or suffer an incumbrance which would take preference to the mortgage as the mortgagor would have had, had he remained owner and in possession. The mortgagee was compelled to pay the taxes in relief of the land purchased for his debt, the land not raising a fund sufficient to pay both liens. We are of opinion this is a clear case for application of the principle, that he who is compelled to pay another’s debt because of his omission to do so may recover on the ground that the law infers that the debtor requested such payment.” The correctness of this ruling was distinctly recognized in King v. Mount Vernon Building Association, 106 Pa. 165. There, as in this case, the mortgagee bought the land at sheriff’s sale under proceedings on its mortgage for an amount less than the mortgage debt, and was subsequently compelled to pay taxes which it seems were not divested by the sale. The mortgagee then brought suit against King, alleging that although these taxes were assessed in the name of Hancock, yet as King was the owner of the mortgaged premises at the time they were assessed he was personally liable for them. A recovery was had in the court below which was reversed by the Supreme Court upon grounds not necessary to be noticed here. But Mr. Justice Paxson, who delivered the opinion of the court, said: “If King was the owner during .these years we have no hesitation in saying, under the authority of Hogg v. Longstreth, supra, that he would be liable to the plaintiff below.” The above case was decided in 1884. In the preceding year the principle upon which Hogg v. Longstreth was decided was extended to a case more nearly like the present. Premises subject to a mortgage in favor of Shoemaker were conveyed to the Commonwealth National Bank by deed absolute on its face, but in reality as security for a debt, and while it was registered owner taxes were assessed against the land. Subsequently Shoemaker obtained judgment on his mortgage, and sold the premises at sheriff’s sale, a sum being realized less than the amount of the mortgage. -From this sum the sheriff deducted the amount’of the taxes aforesaid and paid the residue of the fund to Shoemaker. The latter then brought assumpsit against the bank, and obtained judgment which was affirmed by the Supreme Court. “ The bank held title to the land by deed absolute on its face, and also caused it to be registered as an absolute title. . . . . By this record of title it became liable for the taxes assessed thereon, and liable for damages sustained by the mortgagee by reason of their non-payment: ” Commonwealth National Bank v. Shoemaker, 13 W. N. C. 255.

The question as to the right to maintain a common-law action for taxes, eo nomine, does not arise in this case. The taxes have been paid, but the circumstances under which they were paid give the plaintiff a right to reimbursement from the defendant as clearly as if the defendant had expressly promised to indemnify the plaintiff. Under the authorities above cited this right may be enforced in an action of assumpsit. We are of opinion, therefore, that the plaintiff’s statement sets forth a good cause of action and that the affidavit of defense was insufficient to prevent judgment.

The assignment of error is sustained and the record is remitted to the court below with directions to enter judgment against the defendant for such sum as to right and justice may belong, unless other legal or equitable cause be shown to the court below why such judgment should not be entered. ¡