Beyer v. Investors' Syndicate

Burke, J. This is a trial de novo. The litigation is a continuation of the controversy reported in Investors’ Syndicate v. Letts, 22 N. D. 452, 134 N. W. 317, and closely allied to Investors’ Syndicate v. North American Coal & Min. Co. post, 259, 153 N. W. 472, just decided by this court. The case at bar arises upon a complaint to determine adverse claims filed by Beyer against the North American Coal & Mining Company, Producers’ & Consumers’ Co-operative Company, Williams, his wife, Tappen, the administrator of the estate of the deceased Letts, and all persons unknown and their unknown heirs, — 253 — claiming any estate, or interest, or lien, or encumbrance upon the property described in the complaint, being tbe north half of twenty-one, 139-94, and the southeast one-quarter and northwest one-quarter of sixteen, 139-94, the lands upon which the coal mine is situated. In ¶ 3 of his complaint, plaintiff says: “The defendants above named claim certain estate or interest in, or lien or encumbrance upon, the same, adverse to the plaintiff herein, who is the owner in fee of the above described premises as aforesaid, and claim and allege title and interest in the same and whole thereof.” In ¶ 4: “And plaintiff further alleges and charges the facts to be, that he has paid on the account of the said land and premises above described, the following amount of taxes, to wit: . . . And plaintiff has paid, or caused to be paid, on said premises, large sums of money in the way of redemption of mortgages, liens, and encumbrances upon the lands and premises , amounting to the sum of $3,500.” ¶ 5: “And plaintiff further alleges and charges the facts to be, that he holds an assigned judgment amounting to $320, with interest thereon from March 13, 1906, which judgment was assigned by the Investors’ Syndicate and defendant above to plaintiff on the aforesaid date.” As relief, he asks that the defendants be required to set forth their adverse claims; that the same be adjudged null and void and that the several defendants be decreed to have no estate, or interest in, or lien or encumbrance upon, said property; that the title be quieted as to said claim, and that the defendants above named be forever debarred and enjoined from asserting title to said lands; that the plaintiff recover possession of the premises above described, and that he recover the full amount of his claims, with interest thereon, and that he recover in the sum of $500 yearly for the use and occupation of said land; and that he have such further relief as may be just and equitable, together with costs and disbursements. After the case was fully tried, plaintiff served an amended complaint, which is voluminous, and largely a recital of plaintiff’s evidence adduced at the trial. In this amended complaint, plaintiff alleges that on the 15th of February, 1912, Arthur B. Bobinson, as administrator of the estates of Elizabeth W. and Jeremiah S. Letts, deceased, for a valuable consideration, executed and delivered to the plaintiff certain deeds to the 4 quarters of land, which deeds are set forth in full in the complaint. The prayer for relief is prac — 254 — tically the same as in the original complaint. As throwing light upon the intention of the plaintiff, we quote from his brief, wherein he says: “The cause of action on the part of the plaintiff is predicated upon his right and interest in and to the lands and premises that form the assets of the North American Coal & Mining Company. The plaintiff claims to have paid for many years the taxes assessed against these lands, in good faith, to protect the assets of the company. The evidence discloses the fact that the North American Coal & Mining Company have done nothing, except to answer in this case by the same attorneys who failed to answer for them in other cases.” The only defendants to answer are the Investors’ Syndicate, North American Coal & Mining Company, Producers’ & Consumers’ Co-operative Company. By reference to the case reported in 22 N. D. 452, 134 N. W. 317, it will be noted that, prior to the taking of Beyer into the corporations, an old corporation had been organized, which, however,, had never exercised any of its powers. The reference was to the Producers’ & Consumers’ Co-operative Company, one of the answering defendants herein. They allege that they are the owners of one of the quarter sections of land; the North American Coal & Mining Company alleges that it is the owner of the remaining three quarters, while-the Investors’ Syndicate sets up the mortgage given by the Letts upon one quarter and the mortgage given by the Coal Company upon the three-remaining quarters. They all plead the judgments in the prior suits, as res judicata. The three corporations answer by the same attorneys, ask that tlie plaintiff’s action be dismissed, that he recover nothing herein, and that he be restrained from further asserting any interest in or title to the premises adverse to the defendants. Plaintiff recovered judgment in the court below, and the three above mentioned defendants appeal, demanding a trial de novo. As will be gathered from the foregoing statement of the case, it is; difficult to locate plaintiff’s theory of the case; and we are forced, in the interest of justice, and to end, if possible, this protracted litigation, to cover all possible theories of the complaint. (1) If it is the intention of plaintiff to assert title to the premises-in himself, as is evidenced by his plea of ownership and demand for relief, as well as his introduction in evidence of the deeds from the-administrator of the Letts’ estates, such claim has been successfully — 255 — met by tbe plea of res judicata,. Tbe decree entered by tbe United States district court in the year 1909, wherein Beyer and the Letts were joint plaintiffs in the action to rescind the contract whereby the coal companies were formed, and recover the lands, being decided adverse to them, prevents the assertion now by Beyer either of title in his own name directly, or through the Letts. (2) If the complaint be treated as an effort by Beyer to subrogate himself to the interests of the county, as seems to have been adopted by the trial court, we have other and more important matters to consider. We are cited to the case of Title Guarantee & T. Co. v. Haven, 196 N. Y. 487, 25 L.R.A.(N.S.) 1308, 89 N. E. 1082, 1085, 17 Ann. Cas. 1131, wherein the trust company honored a forged check, and with the proceeds paid the taxes upon a piece of land. In allowing the trust company to be subrogated to the interests of the county, the court says: “There is nothing in the nature of a lien for taxes or assessments ... to prevent the application of the equitable doctrine of subrogation when justice demands it. We think that justice demands its application here. Subrogation is not permitted (1) where the party seeking it has intermeddled with the affairs of the defendant; or (2) where it would prejudice the rights of innocent third parties.” The next case cited by respondent is Farmers’ Loan & T. Co. v. Stuttgart & A. River R. Co. 92 Fed. 246, wherein the court, after announcing the' law about as given in the New York case, says: “I think there is sufficient evidence in the record to show that the company made Barstow its agent for the payment of these taxes, and that he paid them, and thus preserved the interest of the bondholders.” Barstow was given judgment for the amount paid, with 6 per cent interest, and was given a lien superior and paramount to other encumbrances upon the railway. See also Goodnow v. Stryker, 61 Iowa, 261, 16 N. W. 486, where it is held that, where a person has paid taxes on land under the impression that he is legal owner thereof, and the true owner adopts such payments and claims the benefit thereof, the party making such payments is entitled to be reimbursed therefor by the owner, and a lien therefor upon the land. See also: Goodnow v. Wells, 54 Iowa, 326, 6 N. W. 527; Redington v. Cornwell, 90 Cal. 49, 27 Pac. 40, wherein it is said: “It is true that the doctrine of subrogation ‘is not to be applied in favor of one who has officiously, — 256 — .and as a mere volunteer, paid the debt of another, for which neither he nor his property was answerable, and which he was under no obligation to pay,’’nor where ‘it would work injustice to the rights of others’. . . . It is also true that the plaintiff was not directly liable to pay defendant’s proportion of the debts of the corporation; but as a stockholder he had a common, well-defined, beneficial interest, with all other stockholders, in the fund . . . from which defendant’s proportion of the debts must have been paid, if not paid by defendant. . . . There can be no doubt that the plaintiff was entitled to contribution from the defendant, to the extent of defendant’s proportion of the debt paid. ... It follows that the payment was not voluntary, since contribution no more than subrogation is allowed in favor of a mere volunteer. But in this case the plaintiff, in addition to contribution, asks to be subrogated to the rights and remedies of Bedington & Co. against the defendant, ‘for the purpose of compelling contribution.’ ” The court then goes on to hold subrogation proper. See: 3 Cook, Corp. 6th ed. § 850; Cooley, Taxn. 2d ed. 466; Pease v. Egan, 131 N. Y. 262, 30 N. E. 102; Wright v. Oroville Gold, S. & C. Min. Co. 40 Cal. 20, 3 Mor. Min. Rep. 558; Bush v. Wadsworth, 60 Mich. 255, 27 N. W. 532, wherein the president, to preserve the property, paid interest notes due upon a mortgage, for which he was allowed to be subrogated to the rights of the mortgagee; Jacobs v. Union Trust Co. 155 Mich. 233, 118 N. W. 921; Home Invest. Co. v. Clarson, 15 S. D. 513, 90 N. W. 153. Erom the authorities above mentioned, it is apparent that, if Beyer in good faith paid the taxes upon the lands of the coal companies to preserve their property, he would undoubtedly be entitled to recover the sum so paid, with interest, and equity might subrogate him to the interests of the county. Appellant does not strenuously oppose this doctrine, but does insist that the payments made by Beyer were not in good faith. That they were made rather in an effort to himself absorb the assets of the corporations. (3) Upon this phase of the question, we have to refer again to the history of the case. In 1902, Beyer brought his action to rescind his transaction with the coal company and to recover the land upon which the mine is situated. A few months thereafter he dismissed this action, and began another for the same purpose. This case was — 257 — decided by tbe United States District Court for North Dakota in 1909. Before tbe decision in tbe United States court aforesaid, foreclosure proceedings bad been begun upon tbe Dana mortgage. Beyer, intervening therein, positively denied that be was a stockholder in either of tbe coal companies, claiming that be bad rescinded bis transaction by which be bad obtained bis stock, and claimed to be tbe owner of tbe mortgage. That litigation was finally decided in 1912. Eighteen days after tbe final disposition of tbe said case tbe present action was begun, based, in part at least, upon quitclaim deeds given by tbe .administrator of tbe Letts estate to Beyer, which deeds' are dated March 23, 1911,.and February 15, 1912. Appellant further points out that all of tbe payments made for taxes were made pending litigation wherein Beyer was attempting to take away from tbe coal company, tbe lands in question; and they insist that this fact is inconsistent with bis present contention, that tbe payments were made in good faith, to preserve tbe assets of tbe company. This is a matter calling for the exercise of tbe broadest equitable principles. So far as tbe Investors’ Syndicate is concerned, we have, in tbe foreclosure case just decided by this court, held them a party to an attempt to loot tbe coal company of its assets. Beyer, while speculating in bis original investment, has, nevertheless, been free from any fraud in bis transactions. Admitting all that appellants say about him, be is honesty personified, in comparison with Williams and bis associates. Considering bis provocation, we do not consider the actions to rescind evidence of. bad faith upon bis part; and we therefore conclude, that equity and good conscience require that the' coal companies pay to him tbe taxes paid by him upon the property, at a time >vben h.e. believed himself to be tbe owner thereof. All such sums, with interest at the rate of 7 per cent from tbe date of payments, are hereby declared to be a lien upon tbe premises, to be enforced according to law by execution sale, if necessary. (4) Appellants, in anticipation of this situation, claim that tbe proof is insufficient to show that Beyer paid such taxes. They concede that be has receipts signed by tbe treasurer of tbe county for such sums; but claim that the treasurer’s receipt is not sufficient, but, in addition, there should have been proof of assessment and levy of tbe taxes themselves; and we are cited to Swenson v. Greenland, 4 N. D. — 258 — 532, 62 N. W. 603. However, in the case of Blakemore v. Roberts, 12 N. D. 394, 96 N. W. 1029, this court held that, in actions to quiet title to land, the form of a complaint is authorized and prescribed by statute, and the rule announced in Swenson v. Greenland, supra, did not apply to such cases. We do not think any of the corporations named are in a position at this time to make an attack upon the validity of those taxes. Under the circumstances, therefore, the proof of payment is sufficient. (5) It only remains to state that the taxes paid by Beyer, at the time he received his stock and deeded the land to the coal company, being up to and including the year 1894, cannot be allowed to him in this action. No taxes paid upon the northwest one quarter of sixteen, covered by the Dana mortgage, can be recovered, because Beyer’s interest in this land has been adjudicated in the case of Investors’ Syndicate v. Letts, 22 N. D. 452, 134 N. W. 317. The southeast one quarter of sixteen was never formally transferred to the North American Goal & Mining Company, of which Beyer was a stockholder, but the title remained in the .Producers’ & Consumers’ Co-operative Company ; but, as those companies are identical, our conclusion is, therefore, (hat Beyer should recover the amounts paid for taxes upon the southeast one quarter of sixteen and the north half of twenty-one, for the years 1895 and subsequent, and interest thereon at the rate of 1 per cent after each payment, and that he have a lien upon those three quarter sections for the same; and the trial court will enter judgment, authorizing execution sale of said premises to pay said sums according to law. This necessitates a slight modification of the judgment of the trial court, and, as so modified, said judgment is affirmed.