Jacobs v. Webster
| Decision Date | 20 May 1918 |
| Citation | 205 S.W. 530,199 Mo.App. 604 |
| Parties | FLOYD JACOBS and SAMUEL FELLER, Administrators of the Estate of NANCY D. MONROE, Deceased, Appellants, v. DORA B. WEBSTER, and EDWARD R. WEBSTER, Respondents |
| Court | Kansas Court of Appeals |
Appeal from Jackson Circuit Court.--Hon. O. A. Lucas, Judge.
AFFIRMED.
Judgment affirmed.
Ed. E Aleshire for appellant.
Sebree Conrad & Wendorff for respondent.
After the appeal herein was perfected, Nancy D. Monroe, who was then the plaintiff, died intestate and the cause was revived in the name of her administrators, the title being changed to conform to such revival. So when we hereinafter refer to plaintiff it will be understood that we mean plaintiff's intestate and not her administrators.
Plaintiff owned the south seventy-five feet of the east 132.63 feet of Lot 7 in McGee Place in Kansas City. Defendants were, and now are, the owners of the south seventy-five feet of the west 132.63 feet of said Lot 7.
This is a suit in equity brought by plaintiff to recover the park taxes assessed against defendants' lot for the years 1914 and 1915 and, through mistake, paid by plaintiff under the erroneous belief that she was paying the park taxes on her lot. She asked judgment for the amount of said taxes, to-wit, $ 40.50, and prayed that she be subrogated to the rights of the city as to a lien on defendants' land. The defendants demurred to the petition. The demurrer was sustained and plaintiff stood upon her pleadings and appealed.
In addition to the ownership of the two tracts above mentioned, the petition alleged:
That the park taxes for 1914 on defendants' lot were $ 20.25 and if paid during September of that year no penalty was added thereto. A similar allegation was made concerning the park taxes thereon for 1915 payable without penalty during September of that year.
That plaintiff, on and before June 1, 1914, requested the city treasurer to furnish her a statement covering taxes, if any, unpaid on the south seventy-five feet of the east 132.63 feet of Lot 7 McGee Place so that she might pay same; that about September 28, 1914, and while she was living in Wisconsin, the city treasurer in response to her request sent her a statement of the taxes assessed against her property, as she believed; and immediately upon receipt of such statement she sent him a money order for such taxes and received from him a receipt which, instead of being for the property she owned, was for the property owned by defendants, the same being written in lead pencil and described as: instead of the east 132.63 feet, but that plaintiff did not notice the error, relying upon the city treasurer to send her the proper statement in reference to property owned by her; that prior to the payment by her of said taxes, her agents in Kansas City had, though without her knowledge, paid the taxes for 1914 on her property, to-wit: on the south seventy-five feet of the east 132.63 feet of said Lot 7.
That plaintiff did not learn of said error and mistake on the part of the city treasurer for a long time, and, in the following year, still being absent from Kansas City, she received a like statement from the city treasurer for the taxes due for 1915 and she immediately returned or sent him the money, $ 20.25, along with the blank receipt which he duly countersigned and returned to her, the property therein being described exactly as in the 1914 receipt except that it was for the year 1915; that in the meantime her Kansas City agents had, though without her knowledge, paid the taxes on her said property, to-wit, the south seventy-five feet of the east 132.63 feet of said lot 7.
That she never discovered the mistake on the part of the city treasurer nor learned that she had, through mistake, paid the taxes on defendants' property until about January 1, 1916, when she requested the defendants to pay her the said taxes, but that payment was refused.
That she had no interest in the south seventy-five feet of the west 132.63 feet, and when the receipts were sent her by the city treasurer she took it for granted and assumed the city treasurer was sending receipts to her for her own property, and that no jury or injustice would be done by defendants paying said taxes now to plaintiff.
The statements sent plaintiff by the city treasurer were in the shape of unsigned tax receipts which were afterwards signed and returned to plaintiff upon receiving her money. And each showed on its face that the property to which it referred was the S. 75 feet of the W. 132.63 feet. So that, had plaintiff examined the statements before she sent her money, she would have noticed that it did not describe her property. And while plaintiff alleges that her payments were made through the mistake of the city treasurer, yet it is manifest that she had an opportunity to observe the mistake and failed to do so. There were, therefore, two mistakes, one on the part of the treasurer and one on her part, or perhaps negligence on her part, in not discovering the fact that she was not paying on her own property.
Plaintiff in fact, had no interest or apparent interest in the property actually paid on, to be protected by her payment. She was, in fact, under no compulsion either legal or moral to pay the taxes thereon, nor was she in any way requested by defendants, either directly or by implication, to pay same; nor were defendants in any way, directly or indirectly, the cause of her mistake in thinking she was paying on her own property. The question is, does she, therefore, come within any of the situations wherein equity will afford her the remedy of subrogation, that is, the substitution of plaintiff in the place of the city with all of its rights as a creditor of the defendants for the taxes due from them on their lot, thus making defendants debtors of the plaintiff without their consent and without their having done anything to create that relation or to bring about the situation? The rule is unquestioned that the mere payment of the debt of another by a volunteer or by a stranger will not confer the right of subrogation. If a stranger makes such a payment he cannot obtain the benefit of subrogation in the absence of an agreement to that effect from the debtor. In such case one cannot make another his debtor without the latter's consent. And if there is no debt there is no ground for subrogation. [37 Cyc. 375-6.] The payment of a debt by one not the debtor, absolutely extinguishes the debt if there is no agreement that the security therefor shall be transferred and kept alive for the benefit of such payer. [Sheldon on Subrogation, sec. 3.] But equity, through the doctrine of subrogation, will effect the reimbursement of the payer by substituting him in the place of the creditor where the payer is compelled to pay in order to protect his own rights or to save his own property. [Norton v. Highleyman, 88 Mo. 621; Grady v. O'Reilly, 116 Mo....
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