Garrigan v. Knight
47 Iowa 525
Iowa
1877
Check Treatment

Lead Opinion

Kothrook, J.

, one nou&e y owner. I. The defendant does not claim title to the land. The ''plaintiff is the undisputed owner. The only question is whether the defendant is entitled to recover the taxes paid by him, and whether the same should .foe held to be a- lien upon the land.

*527It appears from the agreed statement of facts that the defendant did not pay the taxes on the land by the order or request of .plaintiff.

Under these circumstances we think there can be no recovery for the taxes thus paid. There is no act or course of conduct upon the part of plaintiff from which a promise or contract to refund the taxes can be implied. The mere fact that plaintiff knew the defendant was paying the taxes under claim of title is not sufficient from which to infer a promise, in view of the other facts in the case. When the title to real estate is in controversy, and one of the parties pays taxes, and is afterwards unsuccessful in his claim of ownership, he cannot recover for the taxes thus paid.

“It is an elementary proposition, which does not require support from adjudged cases, that one person cannot make another his debtor by paying the debt of the latter without his request or assent.” Homestead Company v. Valley Railroad, 17 Wallace, 166.

The cases of Claussen and Kuehl v. Rayburn, 14 Iowa, 136; Orr v. Travacier, 21 Iowa, 68, and Thompson v. Savage, p. 622 ante, where the holders of void tax deeds were permitted to recover the legal taxes actually paid, involve a different principle. When lands are sold for taxes the State invites the purchaser to discharge the land owner’s obligation, and it is proper that the law should provide for his reimbursment if the sale should prove invalid, and in the cases last cited the recovery is allowed by reason of the provisions of the statute.

But so long as the land is not sold for taxes, it is the owner’s right to pay the tax to the county treasurer. He cannot be required to seek some other person who may have made a voluntary payment, and make a tender to him to stop interest.

Affirmed.





Dissenting Opinion

Beck, J.,

dissenting. — The defendant paid the taxes in good faith, under a claim supported by color of title. It was' his duty to pay the taxes; not only was he permitted to pay them, *528but he was required so to do by his obligation as a good citizen. The State demands of every one holding lands to pay the taxes assessed thereon. Defendant, believing that he owned the land, was bound to pay the taxes assessed against it. The plaintiff, though holding the valid title, failed to pay the taxes. We have the case, under the foregoing opinion, of the law making the discharge of a duty by a faithful citizen operate to his injury and to the advantage of another, who disregards the duty imposed upon him by the law. Courts ought never to administer the law so that it will work such results.

Plaintiff ex aequo et bono ought to reimburse defendant. I want no other ground than this to base a conclusion that defendant may recover.

It is the policy of the State to encourage the payment of its revenues. No laws exist which discourage it. But the decision of this court, announced in the foregoing opinion, says to all holding doubtful title: you will pay taxes at your peril; if you lose the land your adversary shall enjoy the benefit of your payment, which you shall lose. There can be no greater discouragement to the payment of taxes on lands held by doubtful titles.

The conclusion I reach is, in my judgment, supported by Claussen and Kuehl v. Rayburn, 14 Iowa, 136; Orr v. Travacier, 21 Iowa, 68, and Thompson v. Savage, cited in the foregoing opinion of the majority of the court, and by other cases cited in the last mentioned decision.

Homestead Co. v. Valley Railroad Co., 17 Wal, 153, seems to be a controlling case with my brothers. The question is not argued in the opinion in that case and no authorities are cited. About all that is said upon the point is quoted in the foregoing opinion of the majority. The view 1 have above presented is not referred to, and does not appear to have been brought to the attention of the court. Under these circumstances I am not bound to follow the decision, believing as I do that it is in conflict with the law.