153 N.W. 476 | N.D. | 1915
This is a trial de novo. The litigation is a continuation of the controversy reported in Investors’ Syndicate v. Letts, 22 N. D. 452, 134 N. W. 317, and closely allied to Investors’ Syndicate v. North American Coal & Min. Co. post, 259, 153 N. W. 472, just decided by this court. The case at bar arises upon a complaint to determine adverse claims filed by Beyer against the North American Coal & Mining Company, Producers’ & Consumers’ Co-operative Company, Williams, his wife, Tappen, the administrator of the estate of the deceased Letts, and all persons unknown and their unknown heirs,
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
(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 assessments ... 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,
(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
(4) Appellants, in anticipation of this situation, claim that tbe proof is insufficient to show that Beyer paid such taxes. They concede that be has receipts signed by tbe treasurer of tbe 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 tbe taxes themselves; and we are cited to Swenson v. Greenland, 4 N. D.
(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 Goal & 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, (hat 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 1 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.