
    Fred P. Wilson, Respondent, v. William T. Sanger, Appellant.
    
      Oo-ienants—payment of taxes assessed on the non-resident land of another—it gives no right of action for their recovery—res ad judicata.
    A tract of wild non-resident land located in the Adirondacks which had been, subdivided into lots, each of which had been separately assessed, was owned by two persons in undivided shares; in 1894, and presumably each year prior thereto, each tenant, without consultation with his co-tenant, remitted to the State Comptroller his proportionate share of the taxes upon the entire tract. In 1896 the premises were partitioned and certain of the lots were set off to each of the co-tenants. At the time the judgment in partition was rendered the taxes levied upon each of the lots in 1895 had not been paid and the judgment made no provision for their payment. About eleven months after the date of such judgment, one of the former co-tenants voluntarily and without the request or knowledge of her co-tenant remitted to the State Comptroller a nine one-hundred-and-twenty-eighth part, that having been her previous undivided interest in the lands, of the taxes levied upon the entire tract in 1895, without directing him to apply the money in discharge of the taxes assessed against the lots set off to her; the Comptroller applied the remittance in reduction of the aggregate taxes — partly in reduction of the taxes on the lots set off in the partition action to the party making the payment and partly in reduction of the taxes on the lots set off to the other co-tenant.
    The statute upon this subject provides that an owner of an undivided interest in non-resident land may pay his proportionate share of the entire tax and relieve his share of the land from the tax burden—which is one in rem and not in, personam,.
    
    In an action brought by the assignor of the party, making the payment, to recover from the other co-tenant the amount applied to the reduction of the taxes assessed upon the lots set off to the latter, it was
    
      
      Seld, that, under the circumstances, the action could not be maintained.
    .In 1898, after the plaintiff’s assignor had paid the taxes sought to be recovered, an order, from which no appeal was taken, was made in the partition action denying, without prejudice to the right of the plaintiff’s assignor to bring an ■ action against her co-tenant, her motion to.insert a provision in the judgment to the effect “that.taxes unpaid upon the said premises before the partition should be paid' by the respective parties according to their respective rights and interests.”
    
      Seld, that the judgment in partition was final and res adjudicdta on the subject.
    • Appeal by the defendant, William T. Sanger, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Franklin on the 8th day of March, 1900, upon the decision of the court rendered after "a trial at chambers in St. Lawrence, county, pursuant to an adjournment by stipulation from the Franklin Trial Term.
    
      Charles E. Snyder, for the appellant.
    
      John P. Badger, for the respondent.
   Kellogg, J.:

For some years prior to November 20, 1896, the defendant and plaintiff’s assignor each owned an undivided interest in certain wild or non-resident lands, being township 23 and the triangle in the Adirondacks, the entire tract so owned being about 36,000 acres. The interest of plaintiff’s assignor, Elizabeth Copeland, was an undivided nine one-hundred-and-twenty-eighth part of each lot embraced in said tract. The entire tract was subdivided into lots and numbered from 2 to 226, both inclusive. Each lot was separately assessed, and upon each lot a separate tax .was levied in each year. In 1894, and presumably each year, prior thereto, each owner of an undivided interest remitted to the State Comptroller his proportionate share of the taxes upon all the lots based upon each owner’s share of the land, and apparently each so paid his share without consultation with or reference to any other owner.

In 1893 Mrs: Elizabeth Copeland, plaintiff’s assignor, commenced an action in partition which proceeded to conclusion and judgment, signed November 20, 1896, and entered of record December 8,1896. By this decree the plaintiff in the action (Mrs. Copeland) had set off to her lots 8, 9, 14, lo, 16, 17, 18, 19, 20, 21,'22, 23, 24, 25, 30, 31, 40, 41, 42, 43, 44, 45, 46, 48, 49, 50, 51 and 52, and thereby her undivided interest in all the lots was severed and extinguished.

In 1895 a tax was levied, as usual, upon each separate lot, which was not paid and was returned to the Comptroller. This tax was not considered in the partition action, and at the time of the decree remained upon each lot as assessed, and by the decree the several lots set off to Mrs. Copeland were severally burdened with a definite sum in taxes. So, also, was each of the other lots set off to other owners, and the sum for which each lot was so burdened did not. greatly vary in amount. On November 20, 1896, another tax was levied in the same way.

It appears that Elizabeth Copeland, plaintiff’s assignor, on October 18, 1897, about eleven months after the date of the judgment in partition, remitted to the State Comptroller to apply on taxes levied in 1895 the sum of $247.04, that being nine one-hundred-and-twenty-eighths part of the aggregate of taxes upon all the lots in said tract, and it appears that the Comptroller applied this remittance in reduction of the sum of such aggregate taxes. Such application in effect reduced the taxes on defendant’s lands by the sum of $229.42; the balance of the sum remitted went to the reduction of taxes on the lots set off to Elizabeth Copeland by the partition action.

It is not claimed that such payment or application of the $247.04 was requested by or known to the defendant, nor is it claimed that the application of such payment was other or different from the instruction of Elizabeth Copeland at the time the payment was made. It is fair to presume, however, that she expected by such remittance that her share of the taxes of 1895 would be discharged. It appears that she did not direct the Comptroller to apply the money in discharge of the taxes on the lots set off to her, although each lot was separately assessed and separately taxed. The mistake, if there was one, could not have ■ been made by Elizabeth Copeland in ignorance of the fact that she was, at the time of such payment, not the owner of an undivided interest in the land, nor of the fact that each lot had its separate burden of taxes; at any rate, there is no evidence that she was ignorant of any of these facts.

The plaintiff brings this action to recover from defendant the $229.42 which was applied to the reduction of taxes assessed upon the lots in said tract owned by defendant and set off to him by the judgment in partition of November, 1896. The theory by which the learned counsel for plaintiff seeks to work out his right to recover seems to be this: The land, when the tax was levied (1895), was undivided. The tax levied against each lot created an obligation on the part of the owners •—• a joint obligation — to pay the tax, and plaintiff’s assignor, as one of the joint obligors, had then the right to pay the whole tax and afterwards call upon the other owners for contribution and, in equity, enforce contribution,; that the partition of 1896, which put an end to ownership in common, did not sever the joint obligation to pay the taxesffeviéd before partition, and payment afterwards by one of them, an owner only in severalty, carried with it .the right to enforce contribution. Unless this theory is sound, I see no ground whatever to base this right of action upon, for it is admitted that the tax was paid voluntarily and without the request or knowledge of defendant. But the theory does not' bear examination, and is obviously unsound. There was no joint obligation to pay the tax, and no necessity existed for one of the owners in common at any time to pay the whole tax in order to protect his or her undivided interest. The statute provides that an owner of an undivided interest in non-resident land may pay his proportionate share of the entire tax and relieve his share from sale and from the tax burden. The tax is against' the land and not against the owners ;• it is in rem and enforcible only against the land itsélf. To say that an owner of any small undivided interest in non-resident land might lawfully pay the entire tax, and by so doing possess a right to enforce contribution in equity against the other owners personally, would in effect give him the power to change a tax in rem to a tax in personam. There is lacking here every essential element which is needed to create the right to- equitable contribution. If at .first sight there appears to be a moral obligation here, the complete answer to- that is contained,in the maxim “esquitas sequitur legem? ' The other owners of undivided interests may not, for many good reasons,, wish the tax levied upon their interests paid. They may, for instance,- believe the land not worth the taxes assessed, and since t . .there is no legal obligation bearing upon them personally, may prefer ' that their interest in the lands be sold. This imposes no hardship upon any owner of an undivided interest who wishes to protect his interest, as v?e have seen. It may, therefore, be safely said that, in the absence of a request, express or implied, and in the absence of a necessity or of a statute creating the right, there can exist no right to maintain an action for contribution by one owner against another •owner of an undivided interest in non-resident lands for taxes voluntarily paid thereon.

But the fact which this record presents takes this case quite beyond the necessity of determining the rights of co-tenants in nonresident lands touching the payment of taxes. The plaintiff’s assignor paid the $247.04 nearly a year after her interest in the lands had been set off to her in severalty. The lots set off to her •each had its own burden of tax, specific in amount, assessed thereon separately in 1895. And so, also, had each of the lots set off to defendant, both as to the land set off to defendant and the taxes thereon. The plaintiff’s assignor was, therefore, at the time of making payment, a stranger. She could not interfere either with the lots set off to defendant or with the burden with which each was charged.

The defendant had the exclusive ownership ; he had the right to pay the taxes on his lots when and in the way he chose or not pay them at all; he had the right to pay on some of the lots and let •others go to sale as not worth the taxes or for any other reason. And for the plaintiff to have interfered and have paid a sum applied pro rata on all of his lots, without his knowledge, in no way gave to her a right of action to recover against him personally. The plaintiff says that the payment was made through mistake. It was not the mistake of the defendant. The payment was not made to the defendant. He is under no obligation to correct the mistake. He places no obstacle in the way of its correction. The land in equity may be her debtor but not the defendant. If the plaintiff, with the aid of the Comptroller, can restore the tax which plaintiff’s assignor inadvertently extinguished, the defendant might have no cause in equity to complain.

It seems that in December, 1898, an application was made by plaintiff’s assignor to the Special Term of the Supreme Court for an order at the foot of the decree in partition to amend the same “ by inserting a provision therein to the effect that taxes unpaid upon the said premises before the partition thereof be paid by the respective parties according to their respective rights and interests.” The order was denied without prejudice to plaintiff’s bringing an action against Sanger or any other person as she might be advised.

This probably related to the claim set out in the complaint in this action for the sum of eighty-six dollars and thirty-six cents, which plaintiff alleges was in excess of her nine one-hiindred-arid-twentyeighth proportion of the taxes ; that the amount -of acreage set off to Elizabeth Copeland was in excess of nine one-hundred-and-twenty-eighths of the whole and carried with it an excess of the taxes levied in 1895. Without doubt this matter might have been and should have been determined in the partition action. It might have been equalized by giving to Elizabeth Copeland, the plaintiff ' in that action, more land or by imposing upon the- other owners the payment of a sum of money, or it might have been determined by the court or the commissioners appointed to make partition that- the land set off to her was sufficient with the burden of taxes assessed, but the defendant here, William T. Sanger, was not a-party to that action. It probably might have been adjusted by amendment upon the motion made in December, 1898. Why it was not does not appear. Whether the motion was denied because of loches from long delay or because of a change of ownership in the land is not apparent. The order without prejudice to * * * any action ” does not enlarge the right of action. If none then existed, none certainly was then created. There was no appeal from the order, and I am inclined to think the matter must be regarded as res adgudicata. The judgment in partition is final on the subject.

There seems to be no way to avoid the conclusion that the judgment of the Special Term was erroneous. The judgment of the Special Term should be reversed, with costs.

All concurred.

Judgment reversed and new trial granted, with costs to appellant to abide event.  