200 A. 135 | Pa. Super. Ct. | 1938
Submitted April 14, 1938. Appellant, his three sisters, and a niece (the daughter of a deceased sister) were heirs of appellant's mother, Elizabeth Lohr, who died in 1910. At the time of these proceedings the five persons mentioned were the owners as tenants in common of certain real estate in Somerset County, Pa., inherited from Elizabeth Lohr. Partition proceedings were instituted in the orphans' court, and this land was sold. An auditor was appointed to make distribution of the fund realized. Prior to 1919, when he died, the taxes on the real estate in question were paid by the husband of Elizabeth Lohr. From 1922 *127 to 1931, inclusive, the taxes were paid by appellant. At the audit he claimed four-fifths of the amount so paid, on the ground that he had paid the taxes to preserve the estate, in order that the proceeds thereof might provide funds at some time to erect a tombstone for his mother and father and reimburse him and a sister, one of the co-tenants, for funeral expenses of the parents advanced by them. The auditor allowed appellant four-fifths of the amount paid by him within six years of the audit, which allowance met with no objection from appellees, who say in their brief: "We agree with counsel for the appellant that the appellant was entitled to contribution from his co-tenants as to taxes voluntarily paid by him so long as they were not barred by the statute of limitations. . . . . ." The remainder of appellant's claim was disallowed as barred by the statute of limitations. His exceptions to the auditor's report were dismissed, and this appeal followed.
The assignments of error raise but one question, and that is whether the statute of limitations applies to appellant's claim. However, it may be well to consider a more fundamental question, namely, Was appellant entitled to invoke contribution under the facts of this case? The facts are undisputed. The taxes were voluntarily paid annually to the collector by appellant. In his own words, he gives the reasons for such payments: "I paid these taxes to keep the county from selling that real estate for taxes to provide for tombstones for my father and mother and the other brother and the little sister and to pay the funeral expense that me and Mrs. Baumgardner paid." In Parker, to Use, v. Rodgers etal.,
"To entitle one to contribution, the payment must be compulsory in the sense that the party paying was under legal obligation to pay": 13 C.J. p. 823, § 6b. See Finlay v. Stewart,
In this state it is provided by statute that a tenant in common may pay his proportionate share of the entire tax charged against the land held in common. His undivided interest is thereby relieved from possible sale and from any tax lien. The Act of May 24, 1917, P.L. 270, provides:
Section 1 (
Section 2 (
By the Act of April 25, 1929, P.L. 776, No. 326, § 1 (
There was no joint obligation upon the tenants in common to pay the taxes, and appellant was not required at any time, as one of the tenants in common, to pay the whole tax for each year in order to protect his undivided interest. Appellant was a volunteer, and contribution was not available to him under the facts in this case.
The purposes asserted by appellant do not suffice to remove him from his status of volunteer. "`The action for contribution is founded upon the equity arising from the payment by the plaintiff of more than his share of a liability existing at the time against both. Where the plaintiff is not liable for the debt, he has no right to volunteer a payment for the purpose of making the defendant his debtor. And where the defendant is not bound for it, the payment confers no benefit upon him. He is therefore under no obligation to reimburse the plaintiff': Wheatfield Twp.v. Brush Valley Twp.,
Whether the statute of limitations applies becomes immaterial. Appellant could have availed himself of the above statutes which require him to pay no more than his share of the taxes on the common property. See 62 C.J. p. 484, § 124; Preston v. Wright etal.,
Decree is affirmed.