Hogg v. Longstreth

• Decision Date: 02 May 1881
• Citation: 97 Pa. 255
• Parties: Hogg <I>versus</I> Longstreth.
• Court: Pennsylvania Supreme Court

97 Pa. 255

Hogg versus Longstreth.

Supreme Court of Pennsylvania.

February 23, 1881.

May 2, 1881.

February 23d 1881.

Before SHARSWOOD, C. J., MERCUR, GORDON, PAXSON, TRUNKEY, STERRETT and GREEN, JJ.

Error to the Court of Common Pleas, No. 3, of Philadelphia county: Of January Term 1881, No. 169.

John Samuel, for the plaintiff in error.—The defendant is liable to the plaintiff in this action of assumpsit for the taxes paid by the plaintiff under compulsion, 1, because of the duty arising out of the relation of the defendant, as assignee of the mortgagor, to the plaintiff as mortgagee, and 2, because the defendant was personally liable for the taxes assessed or due during his ownership and possession. His personal liability is fixed by the following Acts of Assembly: Act of February 2d 1854, sect. 11, Purd. Dig. 1373, Pamph. L. 29; Act of March 24th 1870, sect. 2, Id. 1379; Act of April 16th 1879, Pamph. L. 24; Registry Act of March 14th 1865, Purd. Dig. 1377, Pamph. L. 320. The plaintiff, having paid involuntarily the defendant's debt, is entitled to recover back the amount from him in assumpsit: Caldwell v. Moore, 1 Jones 58; approved in Shaffer v. Greer, 6 Norris 375; Henry v. Horstick, 9 Watts 414-416; Shaw v. Quinn, 12 S. & R. 299. In the last cited case the defendant was held not liable because he was not the owner when the taxes were assessed, but it is taken for granted throughout the case, that had he been owner, he would have been liable.

The defendant held the premises subject to the plaintiff's mortgages; his duties towards the mortgagee were precisely those of the mortgagor, and it is an essential element of the contract of pledge or mortgage that the value of the property pledged shall not be diminished or depreciated by the mortgagor. It is, therefore, the duty of the mortgagor and of his assignee to pay the taxes levied on the mortgaged premises: Gormley's Appeal, 3 Casey 51; 1 Jones on Mortgages, sect. 680; Gardiner v. Gerrish, 23 Maine 46; Fair v. Brown, 40 Iowa 209; 1 Coote on Mortgages 342; Morris's Appeal, 7 Norris 368. This is so whether the mortgage be regarded as passing the legal estate or as giving merely a lien for the debt: Salmon v. Clagett, 3 Bland Ch. 180; Brady v. Waldron, 2 Johns. Ch. 148. The mortgagor has no right to depreciate the security, even though in its damaged condition, it is sufficient to pay the mortgage debt. It is the right of the mortgagee to hold the whole mortgaged estate for the payment of his demand: Byrom v. Chapin, 113 Mass. 308. It is because of this duty that the mortgagee may pay taxes and add the amount thereof to his mortgage: Brevoort v. Randolph, 7 How. Prac. 398; Brown v. Simons, 44 N. H. 475; Stanclift v. Norton, 11 Kan. 218. This duty creates an implied assumpsit, and clearly makes the defendant liable.

No counsel appeared contra.

Mr. Justice TRUNKEY delivered the opinion of the court, May 2d 1881.

Henry Myers gave to the plaintiff three mortgages, dated May 31st 1872, each being on a separate lot in Philadelphia. Subsequently Myers conveyed the lots to Kaign, Kaign conveyed to Taylor, and Taylor, by deed dated February 6th 1874, conveyed to Longstreth, the defendant; each conveyance being subject to said mortgages. In 1879, a scire facias was issued on each mortgage, against Myers with notice to Longstreth, as terre-tenant, and the judgments thereon aggregated nearly $6000. Hogg, the mortgagee, purchased the lots at sheriff's sale on his judgments. During the five years that Longstreth owned the lots, he neglected to pay the taxes. Judgment had been obtained for the taxes of the first three years. After his purchase at sheriff's sale, the mortgagee paid that judgment, and also the taxes for the remaining two years, the proceeds of sale having been insufficient to cover them, and he claims to recover the amount of said judgment and taxes in this suit.

There is no evidence that the defendant agreed to pay the mortgage-debt. Hence he was not personally liable therefor, and was under no obligation to the plaintiff arising out of a contract. As against all the world, except the mortgagee, he held the lots by absolute title, and he could divest the mortgagee's estate by paying the debt. The mortgagee was liable to be taxed for money at interest secured by the mortgages; the defendant, holding title under the mortgagor, was liable for the taxes on the land.

Being in possession, he was not only legally liable, but had no equity for the attempt to impose payment of the taxes on another person. By force of law the taxes were a personal charge against the defendant, as well as a lien on the real estate. This lien was not only entitled to preference over other liens, but would not be discharged by a judicial sale on any other lien, unless...