Presbyterian Ministers' Fund v. Folz , 1909 Pa. Super. LEXIS 58 ( 1909 )

Per Curiam,

The facts of this case are fully and clearly set forth in the able opinion filed by the learned judge of the common pleas, and we shall not undertake to restate them. It was held in Frank v. McCrossin, 33 Pa. Superior Ct. 93, applying the principle of Hogg v. Longstreth, 97 Pa. 255; Republic B. & L. Assn. v. Webb, 12 Pa. Superior Ct. 545; Theobald v. Sylvester, 27 Pa. Superior Ct. 362, and kindred cases, that where an owner of land charged with a ground rent fails to pay the taxes assessed on the land, and subsequently'defaults on the ground rent, and the owner of the ground rent obtains judgment for the arrears, and at a sheriffs sale under the judgment buys the land, and in order to save the property pays the arrears of taxes, he may in an action of assumpsit against the former owner recover the amount of the taxes which the former owner should have paid. The facts of the present case are the same, excepting that here the nominal purchaser at the sheriff’s sale was not the owner of the ground rent. This being so, it is argued that the plaintiff was under no compulsion to pay the taxes in order to protect its title or estate as ground owner, and therefore the principle of the cases above cited does not apply. Whether the plaintiff eould have maintained the action, if the purchaser at the sheriff’s sale had been an entire stranger, is a question which need not be determined in this case. It being an admitted fact that the puróhaser bought and holds the land for the benefit of the plaintiff, the payment of the taxes by the latter was as clearly necessary for the protection of its title and estate in the land as if it had been the nominal purchaser at the sheriff’s sale. Nor, when the principle at the foundation of the action is considered, was it necessary that it be brought in the name of the purchaser. He had not paid the taxes, but the plaintiff had. The legal obligation of the defendant was directly to the latter, and no substantial reason has been shown for denying to the latter the right to enforce it by action in its own name. See Com. v. Mahon, 12 Pa. Superior Ct. 616, 626. It was further pointed .out in the opinion of our Brother Porter in that case that the question of the right to maintain the action turns upon the personal liability of the owner, not upon the form of remedy to be used by the taxing authorities to enforce that liability. See also Caldwell v. Moore, 11 Pa. 58, where, though the remedy of the county and township was limited to the tax warrant, yet it was held that Caldwell could in a common-law action recover from the owner who was ultimately liable. So here, the learned judge of the court below in a clear and satisfactory opinion has shown, even if it be conceded that the statute of limitations could have been pleaded to a personal action brought by the city for the taxes in question, the personal obligation of the defendant remained and was enforcible by distress. Upon that subject we refer, for a full discussion of the question, to his opinion. This being so, the principle recognized in all the cases would seem to entitle this plaintiff, having been compelled in order to protect its property to pay the taxes which the defendant ought to have paid and for which he was legally and primarily liable, to maintain a personal action against him. The cases' of Neill v. Lacy, 110 Pa. 294, and Theobald v. Sylvester, 27 Pa. Superior Ct. 362, so far as the latter case relates to the claim for water rent, do not apply. They are based on the fact that there was no personal liability of the owner for the taxes in the former case and the water rent in the latter.

Judgment affirmed.