Nixon v. Jenkins

Brady, J. — The title to land of the plaintiffs did not come in question on the trial of this action, and the title of the defendants to the land on which the taxes were alleged to have been paid was not disputed on the trial. It seems to have been conceded that the defendants owned the land on which the taxes were paid, or that the defendant Porter owned it conjointly with the other defendant. According to the testimony of Mr. Allen, Porter so stated, and promised to pay the taxes paid by the plain [319] tiffs. He (Porter) stated tbat “ tbe assessment number on tbe assessment map of Porter & Jenkins’ map was tbe same as tbe street number of Nixon’s; tbat Nixon bad paid tbe tax of Porter & Jenkins, instead of bis own, by a mistake.” Tbis promise to pay was repeated by Porter on two occasions subsequent to tbe interview referred to. If tbe defendants, or either of them, are liable to tbe plaintiffs on tbe evidence of tbe plaintiffs’ witnesses, it is not a sufficient answer tbat tbe defendants’ property could not be sold until September, 1856. Tbe taxes weré due and payable, but tbe property could not be sold until tbe expiration of tbe period limited by tbe statute. Tbe obligation to pay, however, existed, and tbat was sufficient. Tbe consideration of tbe promise was good, therefore. Tbe money paid was for tbe defendant Porter’s benefit, to which be assented by pronN ising to pay. He derived a benefit from it, and tbat was equivalent to a previous request. Doty v. Wilcox, 17 Johns. 378. It is not an answer to tbis view,' tbat tbe defendants might have preferred to have tbe property sold, inasmuch as tbe action is founded on the promise to pay tbe tax, and which promise is Sustained by a good consideration. There is no proof, however, tbat Jenkins owned tbe lot on which tax was paid, or any part thereof. Porter said that he did own it conjointly with him, but tbat admission or statement did not bind him, or prove tbe fact. Although individuals may be partners in real estate, tbe statement of one of them to tbat effect will not bind tbe other as to charges upon such estate, without further proof. No evidence, therefore, having been given to charge Jenkins, the justice would have properly disposed of tbe case by giving judgment in favor of the plaintiff against Porter, and against him as to Jenkins. Tbe Code, section 274, explained in Bumskill v. James (1 Kern 301), makes such a course tbe duty of courts. I think tbat Por ter was liable on bis promise to the plaintiff, and that judgment should have been given against him, and that the judgment should be reversed as to tbe defendant Porter. Judgment reversed as to defendant Porter.