Carpenter v. Cox

• Decision Date: 09 December 1938
• Docket Number: 5771
• Citation: 186 So. 863
• Court: Court of Appeal of Louisiana — District of US
• Parties: CARPENTER v. COX

186 So. 863

CARPENTER v. COX

No. 5771

Court of Appeal of Louisiana, Second Circuit.

December 9, 1938

Madison, Madison & Fuller, of Bastrop, for appellant.

H. S Hawthorne, of Bastrop, for appellee.

OPINION

HAMITER Judge.

The allegations of the petition herein are, in effect, that plaintiff paid the sum of $ 965.82 to obtain satisfaction and cancellation of two liens recorded by the United States government in the mortgage records of Morehouse Parish Louisiana, securing the payment of income taxes due by himself and defendant as transferees of Cox & Carpenter, Inc. He asks judgment against defendant for one-half of the named amount.

Defendant excepted to the petition as stating no cause and no right of action. The exceptions were overruled. They are not urged here.

Answer was thereafter filed. It is in the nature of a general denial. No special defense is pleaded.

Plaintiff recovered judgment in accordance with his prayer and defendant appealed.

A stipulation of the attorneys representing the respective litigants discloses the following agreed facts:

"Cox and Carpenter, Inc., rendered its Federal Income Tax Return for the year 1930 and claimed salaries of $ 30,000.00 each for account of Mr. C. E. Carpenter and Mr. L. W. Cox, both officers of said corporation. During the year 1932, the Internal Revenue Agent made an examination of the tax returns of Cox and Carpenter, Inc. and disallowed $ 5,000.00 salary to Mr. Carpenter and also to Mr. Cox, reducing the salary to $ 25,000.00 each. As a result of this disallowance an additional tax was claimed as being due by said corporation in the amount of $ 1200.00. The Internal Revenue Department undertook to collect the $ 1200.00 from the corporation and failing to do so claimed the amount due by Mr. Cox and Mr. Carpenter as transferees of said corporation. In the meantime, inasmuch as the salaries of Mr. Cox and Mr. Carpenter had been reduced by the Government, and in order to protect their interests, claims for refund were filed on the basis of $ 25,000.00 salary. The Government then allowed a credit of $ 66.75 for the account of L. W. Cox and a credit of $ 99.46 for the account of C. E. Carpenter. By their consent these credits were applied to the $ 1200.00 deficiency due by C. E. Carpenter and L. W. Cox as transferees of Cox and Carpenter, Inc. On October 9th, 1936 the United States Government filed in the mortgage records of the Parish of Morehouse, State of Louisiana, a notice of tax lien against L. W. Cox as one of the transferees of Cox and Carpenter, Inc. in the sum of $ 1500.41, and likewise, filed a similar notice of tax lien against C. E. Carpenter as the other transferee of said corporation in the sum of $ 1487.70. The reason the Government filed two separate notices of tax lien was due to the difference in the credits allowed to each, as above mentioned, although said tax liens resulted from and represented the balance due by Mr. Cox and Mr. Carpenter as transferees of said corporation. That after said tax liens were filed, an additional credit of $ 209.39 with interest was allowed to Mrs. C. E. Carpenter and $ 192.33 with interest was allowed to Mrs. L. W. Cox, on account of the community return for the year 1930. The Government with the consent of Mrs. Carpenter and Mrs. Cox likewise allowed these sums as a credit to the deficiency due by Mr. Cox and Mr. Carpenter as transferees of said corporation, leaving a balance due the Government in the sum of $ 940.22. This entire balance due was subsequently paid by Mr. C. E. Carpenter on the following dates and in the following amounts, to-wit:

"April 20th, 1937

$ 612.07

"June 8th, 1937

150.00

"July 12th, 1937

178.15

"As a result of the aforesaid payments by Mr. Carpenter, the tax liens filed by the Government were authorized to be cancelled and erased in full from the records of Morehouse Parish, Louisiana. That in addition to the amount paid by C. E. Carpenter unto the United States Government, he has paid one F. J. Cox, Public Accountant, the sum of $ 25.00 for services in rendering an account in connection with the claim filed by the Government against Cox and Carpenter, Inc."

Supplementary to the foregoing stipulation is the testimony of each of the parties. This discloses that plaintiff endeavored to pay his individual portion of the tax in order to free his real property from the recorded lien, but the tax authorities refused his offer and required payment of both claims before authorizing cancellation of either encumbrance. Defendant had knowledge of plaintiff's negotiations with reference to obtaining such removal and offered on two occasions to give plaintiff a promissory note for his portion of the indebtedness. The instrument was not accepted.

It is plaintiff's contention that a legal subrogation, under the authority of Civil Code, article 2161, occurred when he paid the entire tax to the said government, and that he is entitled to maintain this action against defendant. The pertinent portion of the mentioned codal article [Civ. Code, art. 2161] is:

"Subrogation takes place of right: * * *

"3. For the benefit of him who, being bound with others, or for others, for the payment of the debt, had an interest in discharging it."

The above recited facts clearly reveal that plaintiff had an interest in discharging defendant's portion of the indebtedness. The tax lien securing it operated against his immovables, and he was entitled to effect a release to prevent a possible seizure of that property and to place the title thereto in a transferable condition.

Defendant urges, however, that at the time of...