145 S.E. 575 | W. Va. | 1928
The plaintiff, who is a resident of the state of Maryland, owns several tracts of land in West Virginia. In June, 1903, he granted to John M. Core the coal underlying a tract of 64 acres on Finks creek in Gilmer county. A few weeks later Core conveyed the same coal to the defendant. No transfer of this coal to defendant was made on the land books until 1919. From 1903 to 1918 inclusive, the plaintiff was charged with and paid the taxes on the fee of the 64 acres. He obtained in this suit a lien against the coal for the proportionate part of the taxes paid by him which properly should have been charged to the defendant.
The defendant contends that a tax is not a debt and therefore this is not a case for subrogation, citing Hogg's Eq. Principles, sec. 417. That author relies on Hinchman v. Morris,
Hinchman v. Morris was written in 1887. Since then the law of subrogation has been greatly expanded. 25 R. C. L. 1322-3. It is now conceded that there is nothing in the nature of a lien for taxes to prevent the application of the equitable doctrine of subrogation where that doctrine would otherwise apply. TitleCo. v. Haven,
We are aware that some courts have refused subrogation where payment of taxes is made under a mistake, as in this case. SeeIowa Homestead Co. v. Ry. Co., 17 Wall 153, and Carr v.Stewart,
Defendant says relief should be denied the plaintiff, because of his negligence in not having the coal properly charged. Culpable negligence may bar equitable relief against one free from fault. But the negligence of the plaintiff in this respect must be shared by the defendant, as it was the latters duty to have the coal charged to it. Here is a mutual mistake arising from mutual negligence. Relief is not ordinarily denied on the ground of negligence where both parties are equally at fault, and the defendant has been in no way prejudiced, as is the case here. Taylor v. Godfrey,
It is also contended that the plaintiff is guilty of laches. The only element of laches chargeable to plaintiff is delay. Delay alone does not constitute laches. It must be delay which places another at a disadvantage. Carter v. Price,
The defendant places some reliance upon a letter it received from the clerk of the county court of Lewis county which states that in the year 1903 it was charged with 2645 acres of coal on the waters of Fink and Freeman's creeks in his county, and that from 1904 to 1918, inclusive, that acreage was increased to 3301 acres. The clerk does not explain, however, what tracts caused the increase and there is no evidence on the subject. We can hardly infer that the increased charge in Lewis county comprehended a tract in Gilmer county.
The 64 acres was returned delinquent and sold several times between 1903 and 1919. The defendant complains that the sales would not have occurred had the plaintiff "been vigilant or used reasonable diligence", and says that the costs and extra charges expended in redeeming the tract should not now be ratably charged it. The plaintiff was under no obligation to defendant to be vigilant in its behalf. His eleventh hour diligence was a "poor thing" perhaps; *317 but such as it was it served the defendant and prevented the loss of the coal. Accordingly, the defendant must now bear its share of his outlay.
Defendant finally asserts that plaintiff had a complete and adequate remedy at law. Such remedy is not suggested, however, and none occurs to us. At law a material part of his claims would have been subject to the statute of limitations. In equity that statute will not be applied against a purely equitable demand, such as his. Heiskell v. Powell,
We accordingly hold that the plaintiff is entitled to subrogation in this case and affirm the judge of the lower court.
Affirmed.