Summary
Appeal, No. 100, Oct. T., 1909, by-defendant, from order of C. P. No. 4, Phila. Co., Dec. T., 1908, No. 4,723, making absolute rule for judgment for want of a sufficient affidavit of defense in case of Presbyterian Ministers’ Fund v. Leon H. Folz.
Assumpsit to recover taxes paid by plaintiff to protect his title.
Rule for judgment for want of a sufficient affidavit of defense.
Audenried, J., filed the following opinion:
The plaintiff in this case caused the sheriff to sell a property, known as No. 1241 Markoe street, in the city of Philadelphia, under execution on a judgment for $75.90 that it had obtained for an installment due July 1, 1908, on account of a yearly ground rent of $90.00 issuing thereout. The property was sold subject to the ground rent charges. It was bought by Jonathan C. Neff, to whom the sheriff subsequently conveyed it. Its price did not suffice to pay more than the costs of the execution. In buying the property Neff acted for the plaintiff, for which he still holds its title. From 1898 to the middle of 1903, the premises, subject to the payment of the yearly ground rent above referred to, were owned by the defendant herein. The city taxes for the years 1899, 1900, 1901, 1902 and 1903, were assessed against it in his name. These were still owing when the sheriff’s sale took place, and, its proceeds not sufficing to pay them, their lien upon the property-continued undisturbed.
Upon acquiring control of the title of the premises in the manner above described, the plaintiff paid the tax claims for the five years that have been mentioned, and brought this action to recover from the defendant the sum of $205.55 that he thus expended.
The defendant does not deny the plaintiff’s averments of the foregoing facts. He does not dispute the legal proposition that one, not a mere stranger or volunteer, who, under compulsion, actual, present and potential, pays the debt of another in order to preserve rights or property of his own, being under no legal obligation to make the payment, is entitled to subrogation to the rights and remedies of the creditor against the debtor. He concedes that this principle has been applied in relief of a mortgagee who, having bought in the mortgaged property at the sheriff’s sale in foreclosure proceedings, has ..paid the tax claims which the sale has not discharged; and even in relief of the holder of a ground rent who has bought the property on which his ground rent is charged at the sheriff’s sale under a judgment for arrears thereof, and has been obliged, in order to preserve the property thus acquired, to pay off the undischarged taxes that incumbered it.
The defenses set up by the affidavit under consideration are, first, that the payment of the taxes assessed against Folz was a purely voluntary act on the part of the plaintiff, since its ground rent has not been extinguished by merger in the fee, as was the case in Frank v. McCrossin, 33 Pa. Superior Ct. 93, and since on that estate in the land the taxes were not a lien whose discharge was necessary to its preservation; and second, that the application of the doctrine of subrogation to the case before the court will not sustain the plaintiff’s demand, since the right of the city of Philadelphia to recover the taxes above mentioned by personal action against the defendant was, at the time of their payment by the plaintiff, barred by the statute of limitations, and since the right of the plaintiff in the matter can rise no higher than that of the city.
We are of opinion that neither of these defenses is sufficient to prevent judgment in favor of the plaintiff.
That the defendant’s failure to pay the taxes on the property out of which the plaintiff’s ground rent issued endangered the latter’s rights in the land and made it necessary for their preservation that it should pay what was properly the debt of the former cannot be doubted. Neff is merely the plaintiff’s trustee. The property held by him belongs to the plaintiff as absolutely as it would if its legal title were in the latter. It is difficult to see how the case of one who, as the result of a sheriff’s sale of land for arrears of the ground rent charged upon it, has become the owner of the land as well as of the ground rent charge can be said to differ from that of one who, after a similar sale, holds the land that he has bought thereat clear of the charge of the ground rent that he formerly held upon it, through the merger of the estate that was formerly his in the fee that he acquired by purchase at the sale. The right of the ground rent landlord who, in the course of an effort to collect the arrears of his ground rent, has come to be the owner of the land out of which his ground rent was reserved to pay the taxes assessed against the land and look for reimbursement to the party whose duty it was to pay them, would seem, on the authority of Frank v. McCrossin, 33 Pa. Superior Ct. 93, to be as clear in one case as in the other.
It is undoubtedly true that in the case now under consideration the taxes paid by the plaintiff were not a lien on its estate in the property as ground rent landlord, and that a sale of the land under a judgment obtained for them would not divest that estate therein; but it by no means follows that the defendant’s failure to pay them did not jeopardize the plaintiff’s rights in the land. Under sec. 2 of the Act of April 19, 1883, P. L. 9, the receiver of taxes of Philadelphia may collect delinquent taxes by distraint either out of the personal property on the premises or out of the personal or real estate of the delinquent owner wherever the same may be found; and by sec. 3 of the same act he is authorized to distrain and levy upon and sell any goods, chattels or personal property found on any premises on which the taxes are delinquent. By the section last cited it is provided that, when the personal property of a tenant has been levied on for taxes, the amount collected from the tenant by the receiver of taxes, “shall be a lawful deduction from the rent due.” Upon that method of collecting back taxes the legislation of this commonwealth imposes no limitation with respect to the time within which it may be resorted to; and it might be pursued even if the statute of limitations was a bar to the right of the city to maintain a personal action against the delinquent taxpayer, since the statute affects only the remedy to which it refers and leaves the obligation or liability untouched. Under the act of assembly to which reference has been made the officials of the city, at any time after the sale of No. 1241 Markoe street by the sheriff, might have distrained and sold the goods on the property for the taxes that the defendant still owed. The tenant whose goods were thus seized would have had the right to pay the tax claims and defalk against the rent that he had to pay. The statute is broad enough to confer this right on a tenant in fee who holds subject to a ground rent as well as on the mere tenant for years; and, in equity, the right of each to subrogation against his landlord stands on the same foundation. Even, however, if this were not so, it is manifest that the danger of a distraint for taxes on the personal property on the land would seriously threaten the rights of the ground rent landlord, as it might easily conflict with the collection of arrears of ground rent by the'talcing of a distress from the same goods.
It is by no means clear that the right of the city of Philadelphia to cover the taxes assessed against the defendant as owner of the Markoe street property, by a personal action, is barred by the statute of limitations. While it was assumed in several cases by the Supreme Court that tax claims may be barred by the statute, no case has been pointed out in which it was held that the claim for the taxes in suit was actually barred. On the contrary, the case of Philadelphia v. Atlantic & Pacific Telegraph Co., 10 Pa. Dist. Rep. 376, is authority for the proposition that such claims are not affected by the statute. Be this, however, as it may, it is certain that the statute operates only on the particular remedy to which it refers, and not on the obligation of him against whom taxes have been assessed to pay them. Hence, as has been pointed out above, they may be collected at any time by any legal means, resort to which is not barred by specific enactment. Such a method of collection is afforded by the Act of April 19, 1883, P. L. 9. It cannot be argued that the plaintiff on paying the taxes owing by the defendant was subrogated merely to the remedy against him that was left to the city, and is consequently obliged to secure reimbursement through distraint and sale. In Commonwealth v. Mahon, 12 Pa. Superior Ct. 616, it was pointed out by the Superior Court that, “Remedies to enforce personal liabilities for taxes, possessed by public authorities might be -unsuitable and inappropriate to be used by an individual.” A distraint by the plaintiff on the defendant’s personal effects' and their sale in pursuance thereof would be vexatious, and, perhaps, result in hardship or oppression. Rather then relegate the plaintiff to a proceeding of that character the law will sustain an action such as the present upon the implied undertaking of the defendant to repay the moneys laid out to relieve him from his liability and its incidental inconveniences.
The rule for judgment is made absolute.
Error assigned was order making absolute rule for judgment for want of a sufficient affidavit of defense.
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
