
    
      William Harth vs. Assignees of Gibbes.
    
    At a sheriff’s sale there is no warranty, and the purchaser take* the property subject to all legal incumbrances.
    Where property is sold after the first of October, there is no lien on it in the hands of the vendee for the tax for which it was on that day liable ; the tax is the debt of the vendor and 'must be paid by him. 
    
    
      Before Evans, J. at Charleston, January Term, 1832.
    The report of His Honor, the Presiding Judge, is as follows :
    “ The facts of this case, material to its decision, were as follows, as admitted by the counsel:
    1. In 1819, Lowden and others obtained judgments against Gibbes.
    2. In 1820, he mortgaged his house, on South Bay, to the plaintiff, Harth.'
    3. In 1824, Gibbes assigned to the defendants all his property for the benefit of Ms creditors.
    4. The mortgage was foreclosed by suit at law, and the plaintiff became the purchaser at the sheriff’s sale, in April, 1825, for the price of $2000.
    5. The money was paid to sheriff Cleary, who, after deducting expenses, and $45 for the corporation tax, paid the balance to the judgment creditors older than the mortgage.
    6. Afterwards the plaintiff, as owner of the property, was compelled to pay the State tax, $15.45, and to the city sheriff, Deliesseline, the corporation tax of $45, and costs.
    This action was to recover these two sums, making $71.45, from the defendants as assignees of Gibbes, but the plaintiff claimed a decree for the State tax and half the city tax only, the other half having been remitted by the city council. I understand the settled law of this State to be, that the purchaser at sheriff’s sale takes the property subject to all legal incumbrances, among which is its liability for taxes. He purchases without warranty, and, in general, cannot at law call on the former owner to refund money paid in discharge of incumbrances. But it would seem, from the case of Butler vs. Bailey, 2 Bay, 244, that taxes take precedence of all other liens, and if the sheriff had been ruled, as he might have been according to the authority of this case, the taxes would have been ordered to be paid out of the amount of sales in his hands. This would have reduced the sum paid to the elder judgment creditors by the amount of the taxes, viz: $71.45; and the other property assigned to the defendants would have been chargeable with the payment of that sum. Of these creditors, I therefore thought that the plaintiff, ex equo et bono, might demand the money thus paid, as money paid to their use. The principle, however, did not extend beyond the State tax, as Oleary, the sheriff, had retained out of the sales the city tax of $45, which, it was said, was still in his possession. I, therefore, gave the plaintiff a decree for the sum of $16.45, and interest from the time paid, making $21.99.”
    Both parties appealed; the plaintiff, on the ground that the decree should have been for $48.95 ; and the defendants on the ground that the facts, as proved, and the law, as applicable thereto, did not warrant a decree in favor of the plaintiff.
    
      Eggleston, for the defendants.
    - contra.
    
      
      
         By the 15th Section of the Act of 1843,11 Stat. 248, it is provided that “ the taxes which may be imposed by any tax Act, on any lands, slaves dr other goods and chattels, shall constitute specific liens on the said lands, slaves, goods and chattels, for one year from the time when the liability for the said taxes attaches upon the owner or proprietor thereof; and that the said lands, slaves, goods and chattels may be levied on within the period aforesaid, and sold for satisfaction of such taxes, notwithstanding any alienation of the same by the owner or proprietor thereof, subsequently to the time when the liability for the said taxes attached upon the said owner or proprietor ; and that the proceeds of sale of such lands, slaves, goods and chattels shall be applied to the payment of such taxes thereon, prior to and in preference of all judgments, mortgages, pledges, debts, or other liens on the same.” R.
    
   Curia, per

O’Neall, J.

In this case, both parties have appealed from the decision of the Judge below. In our view of the case, it will only be necessary to consider whether the plaintiff has any cause of action against the defendants. The rule, as stated by the Judge below, is, that at a sheriff’s sale there is no warranty, and that the party takes the estate subject to all legal incumbrances.— If, therefore, the State or city taxes constituted a specific lien on the property bought, the purchaser took subject to it, and was liable to the payment. But upon examining the tax Act of 1788, which is a general law, I am satisfied, that where property is sold after the first day of October, in each year, there is no lien on the property in the hands of the vendee, for the taxes of the current year, and that they can alone be collected from the vendor. A clause of that Act, P. L. 438, provides : That the taxes imposed by any tax Act shall be preferred to all securities and incum-brances whatsoever ; and that in case any person shall happen to die between the time of giving in his or her account of his or her tax, and any goods and chattels of the deceased, to the value of the sum he or she was assessed at, shall come into the hands of his or her executors or administrators, they shall pay the same by the time before limited, prior to all judgments, mortgages and debts whatsoever, or otherwise a warrant of execution shall issue against the proper lands, goods and chattels of such executors and ad: ministrators.” This clause of the Act gives the debt to the State for taxes a preference over all other debts and incum-brances. It plainly shews that it was not supposed that taxes had any specific lien on the property itself; and until the Act creates one none exists. The effect of this clause is to give to the right of the State to be paid the taxes precedence of all securities and incumbrances created by the party seized of the property at the time the taxes accrued ; and giving it a reasonable construction, the State, under it, would be first entitled to be paid in cases of insolvency, by either the assignees, administrators or executors. In either of these cases, where the fund was in court, I have no doubt that, on rule, the taxes would be ordered to be first paid ; and to this extent is the authority of Butler vs. Bailey, 2 Bay, 244. But it does not follow that, if the sheriff, in the case under which he sold the property, could have been ruled and compelled to pay the taxes, and thus have by so much diminished the fund which the defendants were entitled to receive, a payment of the taxes by the plaintiff, unless he was legally compelled to pay them, would gi ve him a right of action against the defendants. To see whether he was legally liable for the taxes, it is necessary to look to another clause of the Act: P. L. 439. It is as follows : “That every person shall be liable to pay taxes for the property, real and personal, of which he or she shall stand seized, or having the custody of, either as attorney, or agent, or guardian, or executor, or in his or her own right as tenant in fee simple, or by courtesy, or for life, or in right of his wife, on the first day of October next ensuing, and on the first day of October in each and every year thereafter; and all taxes on real or personal property, which shall be sold and conveyed on the said first day of October next, and after the afb? es aid first day of October in each and every year thereafter, shall be returned and paid by the seller thereof; any law, usage or custom to the contrary nottoithstanding.” This clause makes the taxes to which property sold after the first of October is liable, the debt of the vendor, and it follows, unless some lien had been created by the Act on the property in the hands of the vendee, that he can in no shape be made liable for their payment. The property must be returned and paid for by the vendor; and out of his estate the taxes are to be paid in preference to “ all securities and incumbrances whatsoeverbut if not so paid there is no liability cast upon either the vendee or the property. The general and accepted opinion has heretofore been, that the taxes were a lien on the property liable to them ; but there appears to be nothing in the Act which warrants this conclusion. It probably arose from the fact that against the estate oí the person liable to their payment, they were preferred to all liens.

The plaintiff, according to this view of the law, could not have been legally compelled to pay the taxes, and having made the payment, in a legal point of view, voluntarily, ‘ he cannot recover from the defendants. He cannot claim as having paid the money for them and at their request; for, inasmuch as he was under no legal obligation to pay it, there can be no legal implication that it was paid for their use, and at their request. So, too, he cannot recover from them for so much money had and received to his use. For he has no legal title, as against the defendants, to be refunded taxes which he paid in his own wrong. He may be entitled to be refunded by the State and the city council, the taxes thus paid by mistake; and the State and city council may be entitled to payment from, the assignees.

The motion for a nonsuit is granted.

Johnson, J. concurred.  