The opinion of .this court was delivered by
Rogers, J.
Henry v. Horstick, 9 W. 413, is an authority to the point that the payment of the taxes made by Caldwell cannot be deemed voluntary, and that as his goods were taken to pay a debt owing by another, he has a remedy to recover the money he was compelled to pay, from the original debtor. And so the court instructed the jury; but the difficulty is as to the person against whom the action lies. The jury were instructed that Hileman & Haman, the tenants of Moore when .the taxes were assessed, were alone liable. That Moore, who was the owner of the property, in the absence of any contract to the contrary between lessor and lessees (which we cannot presume) was ultimately liable, cannot admit of doubt; for by the 6th section of the act of the 3d April, 1804, “ every tenant who may or shall occupy or possess any lands or tenements, shall be liable to pay all the taxes which during such occupancy or possession may thereon become due and payable, and having so paid said taxes, or any part thereof, it shall be lawful for him, by action of debt or otherwise; to recover said taxes from his landlord, or at his election to defalcate the amount thereof in the payment of the rent due to such landlord, unless such defalcation or recovery should impair any contract or agreement between them previously made.”. ^Although the tenant may *61be primarily liable at tbe election of tbe officer, yet tbe remedy is obviously cumulative only; for tbe collector may, if be chooses, proceed to collect tbe tax from tbe owner, wbo is personally liable for all assessments on seated lands, and this whether tbe tax be assessed in tbe name of tbe landlord or tenant. If tbe tax be assessed in tbe name of tbe owner, tbe tenant is liable by force of tbe act, and I can see no good reason why tbe same rule should not be applied, when it is imposed directly on tbe occupying tenant. It surely was not intended that because tbe tax was assessed in tbe name of tbe tenant, tbe owner should be exonerated altogether, nor could it have been in tbe contemplation of tbe legislature, that tbe owner, wbo it is confessed is ultimately liable, may not be compelled to pay in tbe present instance by action or otherwise. Why should Caldwell be compelled, in tbe first instance, to resort to Hileman & Haman, wbo are insolvent ? It is in fact denying him all remedy whatever; and even if they were able to pay, it would introduce, for no useful purpose whatever, circuity of action, which tbe law abhors. For on a recovery even against tbe tenants, they, it must be conceded, may recover tbe amount paid from their landlord. There is no injustice in placing Caldwell in tbe position of Hileman & Haman, and then entitling him to recover directly from tbe owner of tbe land, wbo is personally liable for payment of tbe tax. Tbe money was emphatically paid for tbe use of tbe owner, tbe tenant being liable merely by force of an act passed for tbe express purpose of facilitating tbe recovery of state and county taxes.
Judgment reversed, and a venire de novo awarded.