81 Me. 306 | Me. | 1889
This is a bill in equity, to which a demurrer has been filed.
It appears that the plaintiff and defendants are tenants in common of a certain lot of land in Northport, upon which the town had •from year to year assessed taxes ; that the plaintiff has for several years paid the whole of the taxes assessed thereon, the last of which was that assessed for the year 1886, and that these payments were made for the purpose of saving her interest from forfeiture. It does not appear that any steps were taken by the authorities at any time to secure a forfeiture, except once in 1886 the lands were advertised for sale for the tax of 1884, assessed before the plaintiff had acquired a title.
The bill now asks, “that a charge or claim in the nature of a ■lien upon the interests of said defendants in said premises, for their proportion of said sums, may be established and enforced, and that in default of the payment of such proportion, with costs and expenses, said interest may be sold in the same manner as real estate is sold on execution, and with the same right, of redemption, and the money arising therefrom be in the same manner applied to her reimbursement.”
There are many cases where a person pays the whole amount of an incumbrance upon real estate under a legal liability jointly with others to do so, or where he is compelled to pay for others in order to save his own share from forfeiture, he may be entitled to an assignment of that incumbrance from the owner that he may hold and enforce it against the land for his reimbursement.
Undoubtedly, a tax duly assessed under a statute giving alien, is an incumbrance upon the land. But it is a limited or an inchoate one. It gives no title to or interest in the land until it has been sold in the way provided by statute. In this case the lien has been discharged by the payment of the tax as well as by the lapse of time. So that if the town ever had any right to assign, which may well be doubted, it has none now. Hence, the plaintiff in paying the tax, relieved the land of no incumbrance which could by any possibility enable or assist her in getting possession of the land, or holding it as security.
The case of Watkins v. Eaton, 30 Maine, 529, was indeed a tax case. But there the lien had been perfected by a legal sale, by the proper authorities and one of the tenants in common while the i-ight of redemption existed redeemed the whole, as the only way he could save a forfeiture of his own interest. At the same time he took from the purchaser a conveyance which was in effect an assignment of his interest, and the court held that such an interest was virtually a mortgage under which he was entitled to enter and hold until redeemed, and if not redeemed, at the expiration of the right, the title would become absolute. This would seem to be a proper, plain, and simple method of proceeding, and one in conformity with well settled principles of law.
But the plaintiff, apparently aware that she may not succeed under a right of subrogation, put the prayer of her bill in broader language and such as may, perhaps should be, understood as asking the court to establish for her a new lien, or a charge in the nature of a lien and enforce it by a sale as land is sold upon an execution. But surely after the lien under the statute is lost, it cannot be restored so as to be made available consistently with the statute.
Nor are we aware of any principles of law or equity upon which a new one can be established. It would seem to be equally a nullification of the statute. It is conceded that there is no personal liability for the money sought to be recovered. Then
The law or the parties may impose a trust or lien upon real and personal property and a court of equity will enforce it; but it must be a very extraordinary cqse where the court will impose either.
Tins does not seem to be a proper case for the intervention of equity; for, though in the absence of correct information as to the ownership of the land it may have been competent for the assessors to have taxed it in solido, no reason is perceived why the plaintiff may not, by making the list for the guidance of the assessors required by K. S., c. 6, § 93, have her interest taxed separately.
Demurrer sustained,
