2. CONSTRAINT.

a. CONSTRAINT BY FAULT of Defendant.

i. In General.

HOGG v. LONGSTRETH.

97 PA. ST. 255.-1881.

THIS was an action of assumpsit by William Hogg, Jr., against John Longstreth, to recover the amount of certain taxes paid by the plaintiff on premises of which the plaintiff was mortgagee and the defendant was terre-tenant.

MR. JUSTICE TRUNKEY.-Henry Myers gave to the plaintiff three mortgages, dated May 31, 1872, each being on a separate lot in Philadelphia. Subsequently Myers conveyed the lots to Kaign, Kaign conveyed to Taylor, and Taylor, by deed dated February 6, 1874, conveyed to Longstreth, the defendant; each conveyance being subject to said mortgages. In 1879 a scire facias was issued on each mortgage, against Myers with notice to Longstreth, as terre-tenant, and the judgments thereon aggregated nearly $6,000. Hogg, the mortgagee, purchased the lots at sheriff's sale, on his judgments. During the five years that Longstreth owned the lots, he neglected to pay the taxes. Judgment had been obtained for the taxes of the first three years. After his purchase at sheriff's sale, the mortgagee paid that judgment, and also the taxes for the remaining two years, the proceeds of sale having been insufficient to cover them, and he claims to recover the amount of said judgment and taxes in this suit.

There is no evidence that the defendant agreed to pay the mortgage debt. Hence he was not personally liable therefor, and was under no obligation to the plaintiff, arising out of a contract. As against all the world, except the mortgagee, he held the lots by absolute title, and he could divest the mortgagee's estate by paying the debt. The mortgagee was liable to be taxed for money at interest secured by the mortgages; the defendant, holding title under the mortgagor, was liable for the taxes on the land. Being in possession, he was not only legally liable, but had no equity for the attempt to impose payment of the taxes on another person. By force of law the taxes were a personal charge against the defendant, as well as a lien on the real estate. This lien was not only entitled to preference over other liens, but would not be discharged by a judicial sale on any other lien, unless the proceeds were sufficient to pay it. Therefore, the plaintiff had no alternative but to pay the taxes owing by the defendant, or lose the land. Had the taxes been prosecuted to collection before the foreclosure of the mortgage, the plaintiff must have paid them, or have lost his security. A mortgagee in possession,

holding a living pledge, may pay the taxes on the land, and treat the sum so paid as part of his debt, which he is entitled to receive out of the profits. When the mortgagor is in possession, and neglects to pay taxes which are a lien on the land, the mortgagee may pay them not only in reliance on the personal liability of the owner, but in reliance that the land is liable, and the lien will be deemed as transferred by the state to him in favor of the mortgage debt; Kortright v. Cady, 23 Barb. 490. Where a mortgagee is under the necessity of satisfying an execution on a prior judgment, to preserve his security, he is held by right of substitution to stand in the place of the judgment creditor, and on sale of the land is entitled to receive the amount of the judgment out of the fund as well as the mortgage debt. The payment of the judgment is an act which the mortgagee was compelled to do for his own safety: Silver Lake Bank v. North, 4 Johns. Ch. 370. The principle of subrogation in such case, for purposes of lien and distribution, is familiar, and it often applies when there can be no recovery in a personal action.

It is a clearly established principle that no assumpsit will be raised by the mere voluntary payment of the debt of another person; from such act a request and promise are not implied. Another principle is, that when the plaintiff is compelled to pay the defendant's debt, in consequence of his omission so to do, the law infers that he requested the plaintiff to make the payment for him. As when the plaintiff, at the request of the defendant, left a carriage on the defendant's premises, and the carriage was distrained for rent, it was held that the plaintiff, having paid the rent, could recover it. In such case and the like, it is not permitted to the defendant to defend on the ground that the payment was voluntary. In some cases when a plaintiff has voluntarily performed a duty which the defendant was under a strict legal liability to perform, he may recover the money expended, although there had been no express consent or request by the defendant to the plaintiff's act. As when a man, in the absence of the husband, incurs expense in burying the deceased wife in a manner suitable to the husband's condition.

There was a strict legal liability on the defendant to pay the taxes. And it was his duty. Prompt payment of taxes is to the public advantage. Attempts by him who owes and ought to pay them to evade payment, or shift the burden upon another, ought not to be encouraged. The defendant has shown nothing which in good conscience should relieve him. He wittingly became owner and held possession of the lots subject to the mortgages, and had as little right to create or suffer an encumbrance, which would take preference of the mortgage as the mortgagor would have had, had he remained owner and in possession. The mortgagee was compelled to pay the taxes in relief of the land purchased for his debt, the land not raising a fund sufficient to pay both liens. We are of opinion this is a clear case for application of the principle that he who is compelled to pay another's debt, because of his omission to do so, may recover WOODRUFF'S CASES-20

on the ground that the law infers that the debtor requested such payment. The plaintiff's first point should have been affirmed. Judgment reversed, and a venire facias de novo awarded.1

NICHOLS v. D. P. BUCKNAM.

117 MASS. 488.-1875.

CONTRACT. The first and second counts were for money paid to prevent the enforcement of a mechanic's lien for labor on a block of houses owned by the plaintiff, which money the defendant agreed to

pay.

Milo Scott entered into a written contract with the plaintiff to furnish the labor and materials and build a block of houses on the land of the plaintiff in Somerville, for the sum of $5,450. The defendant verbally agreed with Scott to furnish material and do the plaster and brick work of the block, and thereafter actually furnished the material and performed the work. In so doing the defendant employed William E. Bucknam, his brother, with other men, to work on the block; and William E. actually worked on said block for the defendant from August 5, 1870, to October, 1870, charging therefor the sum of $253.25, and agreeing not to call on the defendant for his pay till Scott had paid him. In November, 1870, William E. Bucknam commenced proceedings to enforce his lien against said land and block of houses, and obtained a verdict in the superior court for the county of Middlesex on January 15, 1872, for the sum of $206.82, as damages, and costs taxed at $45.42, though no decree for a sale of the premises was ever entered. The defendant knew of the proceedings to enforce said lien, and was present, and testified in favor of his brother at the trial. The plaintiff, on March 14, 1872, paid William E. Bucknam the amount of said verdict and costs, as above stated, to avoid further proceedings for the enforcement of said lien; and at March term, 1872, of said court, William E. gave the plaintiff a writing acknowledging "full satisfaction of the debt and costs of suit, and of judgment and decree therein," and the same was filed in the court on March 14, 1872. The plaintiff paid $68, as witness and counsel fees in defending said lien suit, and demanded of the defendant, before service of his writ, the sum of $382.21, the amount of said verdict, costs and expenses, which the defendant refused to pay. The plaintiff had overpaid Scott on his contract to the amount of $264, before the commencement of the proceedings, to enforce said lien. Both plaintiff and defendant alleged exceptions.

AMES, J.-It appears upon this report that the plaintiff, in order to 'Accord, Phinney v. Foster, 189 Mass. 182 (1905); Irvine v. Angus, 93 Fed. 629 (1899). For a like result through the application at law of the equitable doctrine of subrogation, see Dunlop v. James, 174 N. Y. 411 (1903); Arnold v. Green, 116 N. Y. 566 (1889); 37 Cyc. 384.

save his property from being sold on legal process, has been compelled to pay a debt which was really due from the defendant. Under such circumstances, 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. Exall v. Partridge, 8 T. R. 308; 1 Smith Lead. Cas. (5th Am. ed.) 70a, 73; Hale v. Huse, 10 Gray 99.

But the costs incurred in defending against the claim stand on other grounds. The judge in the court below has held that they should be disallowed; his decision in matter of fact is conclusive; and there is nothing in the bill of exceptions to show that he erred in matter of law in so holding. Overruled.1

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TICONIC BANK v. DAVID SMILEY.

27 ME. 225.-1847.

WHITMAN, C. J.-This being an action of assumpsit, to maintain it, there must be evidence of a promise, either express or implied. It is not pretended that there was any express promise. Was there an implied one? The defendant was the holder of a note of hand, made to him by one Homans, and lent it to Thomas Smiley, in order that he might pledge it to the plaintiffs, and thereby obtain delay of payment for a debt he owed them; and he having deposited it for that purpose before it had been indorsed by the defendant, an agent of the plaintiffs called on him to indorse it, and he thereupon put upon the back of the note, "indorser not holden, David Smiley;" at the same time remarking, he had no doubt the note was good, and he was then aware of the object of Thomas in putting the note into the hands of the plaintiffs. It appears that, at the same time, Homans had an account with the defendant, on which there was a balance of $51.80 due from the latter, which, as the note had then been due for a long time, it would be the right of the maker to have set off, as in payment of it pro tanto, in whose ever hands it might be found; and this right. he availed himself of when sued by the plaintiffs. This balance, it is insisted, under these circumstances, that the defendant must be considered as having impliedly promised to pay to the plaintiffs.

If the defendant is liable for the amount claimed upon the ground of an implied promise, it must be because he has received that amount for the plaintiffs, or because they have paid that amount for him. There is no other possible ground upon which such a promise can be raised. Now, has he received any sum of money for them? It does not appear that he had ever received any sum whatever, expressly in payment of the note. When, therefore, he received the balance due on the account he could not have received it for the plaintiffs. But, by the operation of law, the plaintiffs have been com

1 See also, Constantinides v. Walsh, reported herein, ante, p. 39.

pelled, in effect, to pay a debt due from him. The note was transferred to the plaintiffs as being wholly due. Both parties must so have understood it, and so in fact it was, but the maker had a balance of an account against the defendant, constituting a debt due by the latter to the former. This, at the time the plaintiffs took the note, and when the defendant indorsed it, was unknown to them. If the defendant was aware of it, he did not acquaint them with the fact, and from his conduct we must presume it did not occur to him. The plaintiffs, not being apprised of any such claim in set-off, were entitled to find the note free from any such claim, but by operation of law, were, nevertheless, compelled to pay a debt, which in equity and good conscience the defendant should have kept from being so claimed and paid. He therefore may be considered as having, in effect, requested, or perhaps more properly, as having compelled the plaintiffs to pay the amount claimed.

The mode in which the defendant indorsed the note exonerates him, only, from being liable in the case of the avoidance or inability of the maker, and is no bar to a claim like the one here set up. Such indorsements are very common, and the extent of the meaning of them is well understood and defined. It is never understood, in such cases, if payments have been made, or if set-offs can be claimed, when the note exhibits no indication of them, and the indorser leaves the indorsee in entire ignorance of anything of the kind, that the indorser is free from responsibility. Defendant defaulted.1

SARGENT v. CURRIER.

49 N. H. 310.-1870.

ASSUMPSIT, by Jacob Sargent against Levi Currier, for money paid, and money had and received. Writ dated May 27, 1868. Plea: The general issue and brief statement of the statute of limitations. The plaintiff claimed to recover $100 and interest from June 2, 1862. One Carter, owning a horse, mortgaged it to one Hill, and afterward sold it to defendant, September 4, 1861; and, in one or two months

1In Van Santen v. Standard Oil Co., 81 N. Y. 171 (1880), “plaintiff's complaint alleged in substance that defendant, at the request of S., loaded a vessel with petroleum, and by representations that it had put on board 110 barrels more than it had in fact, induced the master of the vessel to give to S. a bill. of lading for that amount in excess of the actual amount loaded, and S. paid defendant therefor; that S. assigned the bill of lading, and the assignees, on arrival, compelled the master to pay for the deficiency. Plaintiff claimed, as assignee of the master, to recover the amount so paid. Held, that a demurrer to the complaint was properly overruled; that as the payment was compulsory, caused by the act of defendant, the law implied a promise on his part to repay it."-Syllabus.