222 Wis. 331 | Wis. | 1936
The following opinion was filed June 2, 1936 :
The case is before the court on an appeal from an order sustaining demurrers to the complaint by defendants Swenson and Home Owners’ Loan Corporation on the ground of insufficiency of facts. The complaint alleges that the plaintiff took a mortgage on premises owned by the defendant Swenson to secure notes aggregating $22,000. The notes are all assigned to divers persons for whom the plaintiff as trustee for their benefit holds the notes, and is under obligation to protect the security for their payment, and is authorized to commence actions to that end. The defendant Swenson has empowered the plaintiff to collect all
The action is of the nature of the action “for money had and received.” It is true that a landowner is not personally liable for the taxes imposed upon his land. But it is manifest that, if the defendant landowner elects to keep Tract B, she has received a benefit from the payment of the tax thereon which will result in her unjust enrichment. It is also manifest that, if she elects not to keep the land, the defendant mortgagee corporation has received the benefit of such payment, and that such payment will result in its unjust enrichment. It would seem that, upon the general principles of the law of “Restitution and Unjust Enrichment,” the plaintiff should have-such remedy as will effect its protection.
The appellant in its brief cites no adjudicated cases to- the precise point that such action lies under the situation stated,
“§ 38. Performance of another’s duty or discharge of lien against another’s property. (1) A person who-, by payment to a third person, has discharged the duty of another or has released another’s property from an adverse interest, doing so unintentionally or acting because of an erroneous belief induced by a mistake of fact that he is thereby discharging a duty of his own or releasing property of his own from a lien, is entitled to restitution from such other of the value of the benefit conferred up to' the value of what is given, unless the other disclaims the transaction.”
By paying the tax on Tract B the plaintiff “released another’s property from an adverse interest,” and did so “acting because of an erroneous belief induced by a mistake of fact” that it was “discharging a duty of its own,” and is therefore “entitled to restitution” from the defendants of “the benefit conferred up to the value of what is given,” unless the defendants “disclaim the transaction.” The defendant landowner, while not personally liable for the payment of the tax on Tract B, is to be presumed to have wished and intended to pay it to protect the land from sale and the issuance of a tax deed thereon. Unless she disclaims such wish and intention the plaintiff is entitled as against her under the rule stated to refund of the tax paid with interest thereon. And, if the landowner does disclaim, then the plaintiff will be entitled under that rule as against the mortgagee to refund of the tax, the payment of which has redounded to its benefit and unjust
“7. A receives from the collector of taxes a notification of taxes due, describing Lot X which is owned by B. Believing that it describes Lot Y owned by him, A pays the tax. A is entitled to restitution from B.”
Of the cases cited in the Restatement as supporting rule 38 (p. 277, Tent. Draft No. 1), many involve the payment of taxes on land through mistake of one kind or another. In some, recovery from the landowner was allowed; in others, a lien on the land was given. Baranowski v. Wetzel, 174 App. Div. 507, 161 N. Y. Supp. 153, holds that one paying the tax on land of another, through mistake of a tax clerk, is subrogated to the lien of the tax so paid upon the land. Texas Oil Co. v. Veith, 8 La. App. 742, allowed recovery from the landowner of a payment of a tax on his land erroneously assessed with the land owned by the payer of the tax so included. The owner of the half of a lot, the whole of which was assessed to him, was allowed recovery from the owner of the other half in Murphy v. Jones, 4 Sad. (Pa.) 52, 57, 6 Atl. 726. A life tenant who' through mistake of law paid an inheritance tax erroneously charged against her was subrogated to the rights of the state to a lien for the amount so paid in Wilcox’s Estate (Sur.) 118 N. Y. Supp. 254.
It is to be noted that in some of the cases above briefly stated the payer of the taxes was held to be "subrogated” to the state’s or county’s lien, contrary to the holding in some cases that one who pays taxes on land of another through mistake is a volunteer as distinguished from one who pays to protect his own interest. To us it seems that one paying-taxes on land in mistaken belief of ownership, or in mistaken belief that he is paying them on his own land when he is in fact paying them on the land of another, or paying them on land on which he has no lien under the mistaken belief that he is paying the tax on land on which he has a lien, is not a
It is contended that, as the plaintiff paid the tax with funds of the defendant landowner, and not with funds of its own, it is not entitled to have the fund restored to- it. If this were all of the case, the point would doubtless be well taken. But the plaintiff paid out funds which it was obligated to use for the benefit of the holders of the notes through reduction of the mortgage debt or the protection of the mortgage security through payment of taxes or insurance. It must now pay with its own funds for the benefit of the holders of the notes the sum which it was obligated to use for their benefit, and is in the same position that it would be had it in the first instance used its own funds for the benefit and unjust enrichment of the defendants. We do not perceive that the fact that the funds used were derived from the mortgaged tract affects the equitable rights of the plaintiff. These funds had been in effect assigned by the defendant landowner to the plaintiff to be used for the benefit of the mortgage note-holders. The landowner’s rights in them were limited to having them so devoted. They were by mistake devoted not at all to their benefit, but wholly to a benefit of the defendants entirely distinct from any benefit the landowner would have received had they been applied to payment of the tax on Tract A.
We are of opinion that the complaint shows that the plaintiff is entitled by subrogation to the lien given by sec. 74.01, Stats., and to have the amount of the tax paid by it upon Tract B adjudged to be a lien upon that tract. This lien should not carry interest at the rate carried by the tax sale
By the Court. — The order of the circuit court is reversed, with directions to enter an order overruling the demurrers.
A motion for a rehearing, was denied, with $25 costs, on September 15, 1936.