Dodge v. Kistler

• Decision Date: 06 October 1939
• Citation: 191 So. 301,140 Fla. 209
• Parties: DODGE et al. v. KISTLER et al.
• Court: Florida Supreme Court

191 So. 301

140 Fla. 209

DODGE et al. v. KISTLER et al.

Florida Supreme Court

October 6, 1939

En Banc.

Suit by C. W. Kistler and others against Lawrence E. Dodge, also known as L. E. Dodge, and others to be subrogated to the lien of the city of Miami for taxes paid in the course of negotiations for the purchase of certain property. From an order denying a motion to dismiss the bill of complaint defendants appeal.

Reversed. Appeal from Circuit Court, Dade County; Worth W. Trammell, judge.

COUNSEL

Sanders & Maxwell, Marshall F. Sanders, and Roscoe Brunstetter, all of Miami, for appellants.

Stapp Courley, Ward & Ward, of Miami, for appellees.

OPINION

THOMAS Justice.

The sole question presented for determination by us is the propriety of an order of the circuit court denying a motion to dismiss a bill of complaint praying that the complainant be subrogated to the lien of the city of Miami for taxes paid in the course of negotiations by him with the owner for the purchase of the property taxed.

The allegations of the pleading, or so much of them as are relevant to the point we are to decide, follow: The prospective purchaser paid five hundred dollars to the owner and it was agreed by them that the former would have the choice of three methods of purchase. All were abandoned and a fourth adopted whereby title should pass within thirty days after approval by a named attorney. The stipulated price was $8,750 and all taxes were to be 'prorated as of the date of closing less a tax moratorium for ten years totaling $1,995.00.' The remainder of the purchase price, after deducting deposits theretofore made, was to be paid in cash. An outstanding mortgage to one of the defendants here was to be assigned to the buyer. Subsequently an additional payment of $925.08 was made to the owner, the letter transmitting it containing the statement that ti and the amount formerly paid were 'to enable you to pay off all of the city taxes' and that the total amount of $1,425.08 was 'to be credited as a part of the purchase price * * *.' The communication contained a recapitulation showing that upon actual transfer $5,329.92 would be due seller after deducting the amount of the moratorium on state and county taxes and the sum of the cash deposits, $1,425.08.

The seller used the payments amounting to $1,425.08 'in payment of taxes due the city * * *' and 'received tax receipts therefor'.

The bill of complaint details alleged defects in the title including the incumbrance of the defendant Peacock to which we have referred. Because of the imperfect title the sale was not consummated.

It is obvious that the moneys paid by complainant were in part payment of the purchase price of property and that it was the intention of the parties that these advances be used to discharge the tax indebtedness.

In a decision, Boley v. Daniel, 72 Fla. 121, 72 So. 644, L.R.A.1917A, 734, this court commented on the two types of subrogation, 'legal' and 'conventional', and distinguished between them. We will confine our observations in the instant case to the former, inasmuch as counsel for appellees concede that the facts alleged do not establish the latter.

'Subrogation is the substitution of one person in the place of another with reference to a lawful claim or right. Subrogation arises by operation of law, where one having a liability or a right or a fiduciary relation in the premises pays a debt due by another under such circumstances that he is, in equity entitled to the security or obligation held by the creditor whom he has paid. This is called 'legal subrogation.' Conventional subrogation depends upon a lawful contract, and occurs where one having no interest in or relation to the matter pays the debt of another, and by agreement is entitled to the securities and rights of the creditor so paid.' 72 So. text 645.

Assuming that complainant did in fact pay the debt of another, it is difficult to see how, in the circumstances we have given there could have been any liability or...