Olson v. Chapman

Blake, C. J.

(dissenting) — It is undoubtedly the rule that equity will establish a lien on land for the amount of taxes paid by one either to protect an interest of his own claimed in good faith or in fulfillment of a legal or equitable obligation to pay them to protect the interest of another. But, unless the payor falls within

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one of the two categories, he is merely a volunteer, to whom equity will not lend its aid. See

Burgert v. Caroline,

31 Wash. 62 , 71 Pac. 724 , 96 Am. St. 889, where the court said:

“It is elementary, of course, that one person cannot ordinarily make himself the creditor of another by paying, without request or consent, the debt of that other; and, applying this principle, it is generally held that a stranger to the title to real property cannot make himself the creditor of the owner of the property by voluntarily paying the taxes assessed against it.”

The court further elaborated the rule in

Wiswell v. Beck,

92 Wash. 208 , 158 Pac. 976 , where it said:

“In the instant case, there was no duty to pay these taxes imposed upon respondent by law or otherwise, as he was not the owner of the property at the time the taxes became delinquent or when paid by appellant, nor would he have accepted the property if he had known that there was a tax lien outstanding against it. . . .

“Packwood v. Briggs,

25 Wash. 530 , 65 Pac. 846 ;

Burgert v. Caroline,

31 Wash. 62 , 71 Pac. 724 , 96 Am. St. 889, and

Vietzen v. Otis,

63 Wash. 411 , 115 Pac. 858 , are also relied on by appellant as authorities supporting the rule that the payer of taxes on the premises of another has a lien on the property therefor. These cases present situations where the person paying the taxes has some right or claim of ownership in the property and makes the payment for the purpose of protecting this claim or right, and not by mistake, and so far as the facts appear, the ownership was a continuing one or the vendee had notice of the tax lien claimed by the payer, and for these reasons are distinguishable. The whole theory of these cases, holding that the state’s lien is transferred to the payer of taxes on property of which he is not the owner, is that the payer has performed a duty which was by law imposed upon the owner who neglected to perform it, and that no hardship will be worked on the owner in performing this duty to the payer who has performed his (the owner’s) duty to the state.”

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Now, this rule is peculiarly applicable as between tenants in common in the light of Rem. Rev. Stat., § 11264, which, among others, contains the following provision: ■

“Any person desiring to pay on an undivided interest in any real property may do so by paying to the county treasurer a sum equal to such proportion of the entire taxes charged on the entire tract as interest paid on bears to the whole.”

For, in the light of the statute, there is no legal obligation on the part of a co-tenant to pay taxes on the property as a whole. Nor is there such a fiduciary relationship existing between co-tenants, as such, to charge a tenant in common with the obligation to pay the taxes assessed against the property as a whole. 62 C. J. 419. Under such statutes, the courts hold that, since a tenant in common may have his interest separately assessed, he will not be permitted to establish a lien for reimbursement when he pays taxes assessed against the common property. 62 C. J. 490;

Wilson v. Sanger,

68 N. Y. Supp. 124 , 57 App. Div. 323 ;

In re Lohr’s Estate,

132 Pa. Super. Ct. 125 , 200 Atl. 135 . Indeed, some courts hold, in the absence of such a statute, that a tenant in common is not entitled to contribution when he pays taxes on the whole estate except in instances where he does so at the request of his co-tenant.

Preston v. Wright,

81 Me. 306 , 17 Atl. 128 , 10 Am. St. 257;

Wistar’s Appeal,

125 Pa. 526 , 17 Atl. 460 , 11 Am. St. 917;

Schilbach v. Schilbach,

171 Md. 405 , 189 Atl. 432 . In the

Preston

case, the court said:

“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

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his reimbursement. No case has been cited, nor are we aware of any which goes any farther. In all these cases it is an assignment or what is treated as such of an actual existing incumbrance, in which the assignee succeeds to all the rights of the assignor and none other.”

And that is the rationale of our own decisions applying the doctrine of subrogation.

Murray v. O’Brien,

56 Wash. 361 , 105 Pac. 840 , 28 L. R. A. (N. S.) 998;

Wallace v. Henderson,

3

Wn.

(2d) 697, 101 P. (2d) 1078 . I think the judgment should be affirmed.

Main, J., concurs with Blake, C. J.