SHAW, J., dissenting.
I dissent. The facts briefly stated are, that plaintiff held a senior mortgage on lands on which the defendant held a junior mortgage; that the land was valued for taxation high enough to cover the mortgage interest of both mortgagees for the years 1898 and 1899; that in May, 1898, the plaintiff began suit to foreclose his mortgage, and in due course of proceedings purchased the land at foreclosure sale, and obtained a sheriff’s deed on April 15, 1899; that in the mean time the taxes assessed on the mortgage interest of the defendant in the land for 1898 and 1899 had not been paid, and the plaintiff, in order to prevent the sale of his land therefor and protect his property, was compelled to pay the tax for 1899 after it became delinquent, and to redeem a sale to the state for the defendant’s taxes for 1898. The action was to recover of the defendant the sums thus paid for taxes. Under the provisions of the constitution and section 3627 of the Political Code the mortgage interest of the mortgagee in lands is to be considered as an estate therein the same as any other interest in property.
The principle upon which the action was based is as old as the common law. It is stated and approved as follows in
San Gabriel etc. Co.
v.
Witmer etc. Co.,
96 Cal. 635: “Where the
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plaintiff, either by compulsion of law, or to relieve himself from liability, or to save himself from damage, has paid money, not officiously, which the defendant ought to have paid, a count in
assumpsit
for money paid will be supported. ’ ’ “In such case the law implies a request on the defendant’s part, and a promise to repay, and the plaintiff has the same right of action as if he had paid the money at the defendant’s express request. The right of contribution or reimbursement for money necessarily paid for another’s benefit does not necessarily depend upon contract, but may arise from the equity of the case.” In equity the same principle is the foundation of the doctrine of subrogation. “The general rule is, that any person having an interest in property on which there is a lien or encumbrance, may, if necessary for his own protection, pay off the same and be substituted to the rights and remedies of the holder thereof.” (27 Am. & Eng. Ency. of Law, 2d ed., p. 235.)
The principle is so well established that it seems useless to cite authorities, but the following examples may elucidate the proposition.
Hogg
v.
Longstreth,
97 Pa. St. 255, is substantially the same as the case at bar. The plaintiff, a mortgagee, had. purchased the land at the foreclosure sale, and afterwards, in order to protect his land from sale for taxes, was compelled to pay certain taxes assessed against the land while it was held by a purchaser from the mortgagor. It was held he could recover in
assumpsit
from the grantee of the mortgagor the amount of the taxes thus paid. In
Graham
v.
Dunnigan,
6 Duer, 629, it was held that a tenant for life of a part, having been compelled to pay the taxes against the whole property, can recover of the other owners their proper proportion of the taxes thus paid. There was, of course, no contractual relation between the tenants with respect to these taxes, and it was further decided that such relation is not necessary to support the action. In
Goodnow
v.
Moulton,
51 Iowa, 557-558, the plaintiff, in the belief that he owned the land, had paid the taxes thereon during litigation with the real owner as to the title. The real owner had not paid the tax, nor had he caused it to be assessed in his name. There were no contractual relations between the parties. It was held that the plaintiff could recover of the real owner the taxes thus paid. Where, by operation of law, A is compelled to pay a
[60]
debt, which in equity and good conscience B should have kept from being claimed, A may recover of B the amount so paid.
(Ticonic Bank
v.
Smiley,
27 Me. 225.
1
) The following authorities are to the same effect:
Nutter
v.
Sydenstricker,
11 W. Va. 535;
Bailey
v.
Bussing,
28 Conn. 455;
Nichols
v.
Buchnam,
117 Mass. 488;
Kemp
v.
Cossart,
47 Ark. 62;
Blythe
v.
Luning,
7 Saw. 506; 14 Fed. 281;
Taylor
v.
Porter,
7 Mass. 355, (in which there was a mortgage on two parcels sold to different persons, one of whom paid all and recovered half of the other;) 2 Greenleaf on Evidence, sec. 114; 35 Century Digest, cols. 44, 48. This principle was applied in
San Gabriel etc. Co.
v.
Witmer etc. Co.,
96 Cal. 635, and that case was followed in
Angus
v.
Plum,
121 Cal. 608.
I can see no point lacking in the facts of this case that would be necessary to bring it within the rule of the foregoing authorities. 1. The plaintiff was compelled to pay the taxes in order to protect his own property. 2. The taxes were the personal obligations of the defendant. “Every tax has the effect of a judgment against the person.” (Pol. Code, sec. 3716.) In
People
v.
Seymour,
16 Cal. 343,
2
it was expressly decided that a tax is a debt, and that when a tax is duly assessed the owner of the property becomes personally liable, and may be sued therefor in all eases when there is a statute authorizing such suit. To the same effect is
Oakland
v.
Whipple,
39 Cal. 115. There is a statute authorizing such suit. The statutes of 1880 (p. 136) provide that any county, or city and county, “may sue in its own name for the recovery of delinquent taxes, whether the same be for county, or city and county, and state purposes, or either of them.” In
Los Angeles County
v.
Ballerino,
99 Cal. 595, this statute was said to be still in force, and it was held that under its provisions a county could sue a taxpayer to recover the taxes delinquent. 3. Being' debts, or at least personal obligations, of the defendant, it follows that he ought to have paid them, and that under the act of 1880 he was liable to a suit by the county to recover them, and hence the payment by the plaintiff, in a legal sense, inured to the benefit of the defendant. It was the duty of the defendant to pay the tax on his property, and this duty was performed by the plaintiff under
[61]
compulsion. The fact that with respect to the taxes of 1898 there had been a sale to the state before the plaintiff made payment is not material. The right of the plaintiff to be subrogated to the rights of the state includes the right to be subrogated to all the remedies which the state originally had against the taxpayer. 4. Moreover, it cannot be said from the facts of this case that the second mortgagee suffers any hardship by being compelled to pay the taxes in question. The presumptions of law are in favor of the plaintiff. The mortgage debtor is presumed to be solvent, and there was nothing in the record here to show the contrary. Therefore, the valuable element of the property upon which the taxes were assessed—namely, the debt due from the- mortgagor to the second mortgagee—is presumed to be, even at the present time, worth the amount thereof, owing to the solvency of the debtor. Under the ruling of the majority, the second mortgagee will secure the payment of his taxes by another, without any liability on his part to repay them.
The opinions in
McPike
v.
Heaton,
131 Cal. 109,
1
and Can
adian Co.
v.
Boas,
136 Cal. 420, are clearly inconsistent with the above principles, and also with
Angus
v.
Plum
and the Witmer case, and both of these cases proceed on erroneous lines.
McPike
v.
Heaton
rests on two propositions: 1. That McPike was the second grantee, and that there was no covenant running to him from the person against whom the taxes were assessed, or, in other words, that there was no contractual relations between the plaintiff and defendant; and 2. That as “there is no personal obligation upon the owner of land for the taxes levied against it, . . . the defendant was under no personal liability for the taxes paid by the parties,” and hence it was said
San Gabriel etc. Co.
v.
Witmer etc. Co.,
96 Cal. 635, did not apply. In the Boas case the same propositions were made as the foundation for the decision, and it was put on the ground that the money paid by the plaintiff was not for the benefit of the defendant, because of this absence of personal liability. The answer to both of these points is clear from the foregoing authorities. There was a personal liability, and the tax paid by the plaintiff was necessary to remove a burden upon the plaintiff’s land, arising from the neglect of the defendant to discharge his obligation to the
[62]
state.. The payment discharged his obligation and operated directly to his benefit.
If the defendant should show in his defense that the mortgagor was insolvent, that he had no other security, and, consequently, that his whole estate in the premises and right to the debt had been swept away and destroyed by the foreclosure of the first mortgage, and substantially merged therein, I think the same principles of justice and equity upon which the plaintiff depends would then be operative in aid of the defendant, and would require judgment in his favor. But he should be required to show this, and not have it presumed in his favor.
1
46 Am. Dec. 593.
2
76 Am. Dec. 521, and note.
1
82 Am. St. Rep. 335.