Koehler v. Hughes

• Citation: 148 N.Y. 507,42 N.E. 1051
• Parties: KOEHLER v. HUGHES et al.
• Decision Date: 18 February 1896
• Court: New York Court of Appeals

148 N.Y. 507

42 N.E. 1051

KOEHLER

v.HUGHES et al.

Court of Appeals of New York.

Feb. 18, 1896.

Appeal from supreme court, general term, First department.

Action by David M. Koehler against Joseph Hughes, impleaded with Henry Hughes, to subject land to a lien for taxes paid by him. From an affirmance by the general term (25 N. Y. Supp. 1061) of a judgment dismissing the complaint on the merits, plaintiff appeals. Affirmed.

Action to obtain the subrogation of the plaintiff to the rights of a purchaser at certain sales for the nonpayment of taxes upon real estate alleged to belong to the parties as tenants in common. It is alleged in the complaint that the defendant Henry Hughes, being seised in fee and in possession of an undivided eighth of the premises in question, situated in the city of New York, gave a mortgage upon the same to the plaintiff, to secure loans them made and others to be made; that, at the same time, the defendant Joseph Hughes owned an undivided interest in said premises; that afterwards, and on September 11, 1889, as well as on September 26, 1890, the plaintiff redeemed the premises from certain tax sales theretofore made by the payment of the required amounts to the clerk of arrears; that thereafter said Henry Hughes conveyed his interest in premises to the plaintiff, as a further security to the said loans; that on September 25, 1891, the defendant Joseph Hughes, who was the purchaser at one of the tax sales, and the assignee of the purchaser at the other, acquired all the outstanding interests in the premises, except said undivided eighth so belonging to Henry Hughes and the plaintiff, with full knowledge of all the equities. The plaintiff demanded that he be subrogated to the rights of the said purchasers at the tax sales to the full amount paid by him with interest thereon; that the same be declared a lien upon the premises; and that the shares of the defendants be sold to pay the same. There was neither allegation nor proof of any request to redeem made of the plaintiff by either defendant, or request to contribute made by the plaintiff of either defendant. Henry Hughes made no defense, and the answer of Joseph Hughes was, in substance, a general denial, except that he admitted his own title. The trial court found that the plaintiff made said payments to the clerk of arrears voluntarily, and dismissed the complaint upon the merits, with costs. From the judgment of affirmance by the general term, this appeals is brought.

David McClure and Charles Goldzier, for appellant.

Edward W. S. Johnston, for respondent.

VANN, J. (after stating the facts).

Several question of practice require examination in this case before we can consider the appeal upon the merits.

The learned general term states in its opinion that owing to a defective certificate to the case, as settled, it was precluded from reviewing the questions of fact. The learned trial judge states in his opinion that he had refused findings in favor of or against the respective contentions of the parties as to whether the plaintiff's grantor had or had not any interest in the property involved, because he deemed the fact immaterial. These opinions form no part of the record, and the statements appearing therein as to what the respective courts did or did not pass upon cannot be considered, unless the judgment appealed from so refers to the opinion as to make it a part of the record. Dibble v. Dimick, 143 N. Y. 549, 553,38 N. E. 724;Williams v. Railroad Co., 127 N. Y. 643, 646,27 N. E. 404;Tolman v. Railroad Co., 92 N. Y. 353, 356. Neither the judgment of the general term, nor the order upon which it was based, refers to the opinion; and the adjudication is general in form, reciting the judgment of the special term, and affirming ‘it in all respects.’

The proposed findings presented by the plaintiff to the trial judge, under the practice that prevailed at the time, were each marked in the usual way, as ‘Found’ or ‘Refused,’ respectively, without any statement of the ground or reason. Nothing appears in the record itself to show that the action of the general or the special term was other than as thus stated, or in any way explaining such action or setting forth the reason therefor, so as to make it appear that the facts were not reviewed by the appellate court, or that certain findings were marked ‘Refused’ because deemed immaterial by the trial court. Our power to review, according to the practice that has prevailed for many years, is limited to such questions as appear in the record. When the record fails to show all that was done by the court below that is material to be spread before the appellate court to enable it to properly review the case, a motion should be made to so correct it as to cause the essential facts to appear, so that the rights of all concerned may be adequately protected. It is just as important that the case should properly show the facts upon which error is predicated as it is to take an appeal.

Confinding ourselves to the record, as thus explained, the first question open to review is whether the plaintiff was shown to have any interest in the premises in question upon which a decree of subrogation could be based. A mere volunteer or intermeddler will not be substituted in the place of a person whose rights he seeks to acquire, simply because he has paid a debt or discharged an obligation for which that person was responsible. One cannot ask for subrogation with success unless either he or his property was in some way lawfully answerable for the claim paid. As was said by Chancellor Walworth in Sandford v. McLean, 3 Paige, 117, 122: ‘It is only in the cases where the person advancing the money to pay the debt of a third party stands in the situation of a surety, or is compelled to pay it to protect his own rights, that a court of equity substituted him in the place of the creditor, as a matter of course, without any agreement to that effect. In other cases the demand of a creditor which is paid with the money of a third person, without any agreement that the security shall be assigned or kept on foot for the benefit of such third person, is absolutely extinguished.’

The plaintiff was not a surety, nor did he redeem from the tax sales upon request or under any agreement, but he alleges that he made the payments in order to protect an undivided eighth interest that he claimed in the premises covered by the taxes, but which the defendant Joseph Hughes claimed to own as an entirety. The trial court found that he paid as a volunteer, and did not find that he had any interest in the property. The only requests presented by the plaintiff for findings upon the subject were the following, viz.: ‘(1) That, prior to and at the time of his death, William P. Powers was the owner of the premises described in the complaint; (2) that...