Knoll v. Marshall County

Given, C. J. — I. The petition shows: That in 1894 one Akers, lessee of defendant McManus, kept a saloon for the sale of intoxicating liquors, under the mulct law, on premises described, upon which defendant Estabrook held a mortgage. That said premises have since been conveyed to defendant Peckham; and that plaintiffs were sureties upon the bond of said Akers. Defendants McManus and Estabrook, claiming that the mulct tax was excessive and in part illegal, instituted proceedings to reduce the same, and to enjoin the collection of, the tax as assessed, offering to pay the amount conceded to be due. The district court found that the tax was in part erroneous, and decreed as follows: “It is therefore ordered: That the plaintiff Mrs. A. C. McManus should pay the sum of one hundred and twenty-five dollars ($125) of said tax, to wit, to August 15th, or for two and one-half months, — the city portion of said tax being paid to October 1, 1894, — and she should pay the sum of one hundred and twenty-five dollars ($125) and penalties, amounting to twenty-five dollars ($25), the amount due when the proceeding to rebate was commenced, and all other of said taxes shall be set aside; and said sum shall be a lien on the south 33 feet of lot seven (Y) in block seven (Y), as against the said interest of Mrs. A. C. Mc-Manus therein. That said sum shall be paid on or before October 1, 1895, or the said treasurer shall proceed to sell' said property for said taxes. That the plaintiff shall recover all costs of this action, except the clerk’s costs of entering this decree and judgment.” That after and notwithstanding said decree the county commenced an action against 649 plaintiffs, as sureties on said bond, to recover said tax, and recovered judgment in tbe sum of $177 against them. See 102 Iowa, 574. That tbe plaintiffs have deposited said sum with tbe clerk, and bring this action for a decree subrogating them to all tbe rights of Marshall county in said former decree. Defendants demurred upon the ground that the facts stated do not entitle the plaintiffs to tbe relief demanded. II. The only question is whether, under the averments of the petition, plaintiffs are entitled to be subrogated to the rights of the county under said first decree. Plaintiffs claim that said decree made tbe tax a personal demand or claim on Mrs. McManus, and also a lien upon tbe lot. True, the court found that Mrs. McManus “offered to pay tbe tax for tbe time it [her property] was occupied as such saloon,” and ordered that she pay $125 of said tax; but Mrs. McManus was not personally liable for this tax, and her offer to pay it was not an acknowledgment of personal liability, but a recognition of the lien imposed by statute upon her property for this tax, and for tbe purpose of removing tbe lien. There was no order for general execution against Mrs. McManus, but only for special execution by virtue of tbe statutory lien, and not because of tbe offer. The county could not pursue her other property for the payment of this tax. The county had double security, namely, the statutory lien and the bond. It chose to pursue the latter, and recovered judgment thereon notwithstanding the former decree. Plaintiffs, having deposited the amount of said judgment, ask to be subrogated to the rights of tbe county under the lien against the property given by statute. Suppose there had been no question as to the amount of the tax, and no action to reduce it, and the county had proceeded to judgment on tbe bond; it would hardly be claimed that tbe sureties would be entitled to be subrogated to the statutory lien. The decreed does not make tbe situation different. It finds the amount of the tax, recognizes the statutory lien, and the right of Mrs. McManus to relieve her property by paying the 650 tax. Surely, in giving to tbe county its double security, it is not intended that a payment by tbe property owner of tbe tax to relieve bis property from tbe stautory lien entitles bim to be subrogated to tbe rights of tbe county on tbe bond; nor tbe bondsmen wbo pay, to subrogation to tbe statutory lien. Gilbert v. Adams, 99 Iowa, 530, and Manning v. Ferguson, 103 Iowa, 566, are cited, wherein it is held that sureties are entitled to tbe benefits of all securities in the bands of tbe creditors to secure tbe debt, and that a surety paying a judgment is entitled to assignment thereof, and to enforce it against bis principal. In such cases tbe relation of tbe parties arises solely upon tbe contract, while in this it is upon tbe statute. No case is cited, nor do we find any, wherein subrogation has been granted as to securities to tbe public in pursuance of tbe statute. — Affirmed.