Greer v. McCarter , 5 Kan. 17 ( 1869 )

By the Court,

Valentine, J.

John P. Greer, one of the plaintiffs in error, sold and yeoncyed some land to George McCarter, the defendant in error, on the 26th clay of August, A. D. 1865, without any express agreement between the parties as to who should pay the taxes on the lands for that year. On the 1st day of May, A. D. 1866, after the land had been advertised for sale for said taxes, and a few days before it would have been offered for sale for the same, McCarter paid them, the amount being $57.45. On the 25th day of August, A. D., 1868, McCarter brought an action before a justice of the peace, against Greer, to recover them back. Judgment was rendered against Greer for the amount of the taxes and interest, and he appealed to the district court, and J. B. Whittaker, the other plaintiff in error, signed the appeal bond as surety for Greer. In the district court both parties filed new pleadings. The second count of the defendant’s answer is as folloAvs: “That the said indebtedness of the said defendant did not accrue to the said plaintiff within two years next before the commencement of this suit.” The plaintiff' demurred to this count of the answer, on the ground that it stated no defense. The court sustained the demurrer. Trial was then had, and judgment was rendered against both, Greer and Whittaker, for the amount of the taxes, and interest thereon, amounting to $66.83.

We find no error in this case. The petition showed a good cause of action. The second count of the' answer stated no defense. The judgment is for the proper amount, and sustained by sufficient evidence, and was properly rendered against both, Greer and Whittaker.

Taxes : Liabilíty lor. Section 12 of an act approved March 6, 1862, x x ( Comp. h., 880,)reads as follows: “ As between grantor and grantee of any lands, when there is no express agreement as to who shall pay the taxes that may be assessed thereon, if such land is conveyed even with or prior to the first day of April, then the grantee shall pay the same; but if conveyed after that date, then the grantor shall pay them.”

Evidence : Pee-sumptions: This section was in force, as an existing and ° valid law, at the time Greer sold the lands to McCarter. Both parties, of course, knew what the law was, for every person is presumed to know the law, and “ Ignorantia legis neminem excusat.” Both parties knowing what the law was, contracted with reference to it. It entered into and formed a part of their contract. Their contract was precisely the same as though they had attached said section 12 to their contract and expressly made it a part thereof.

Constitutional i.™-: We do not think, as the plaintiffs in error concontend, that said section 12 is in conflict with section 15, bill of rights, or with section 16, article 2, of the constitution, or with any other part of the constitution, or that it had, at the time of said sale, been repealed, impliedly, or otherwise, by section 8, laws of 1868, page 101, or by any other section of the law.

Principal and surety: Taxes: Everybody knows that when a surety has to pay the debt of his principal he has an action against his principal, to recover back the amount he pays. It is generally true, but not so generally known, that when one pei'son is liable for a debt, which legally and equitably as between him and some other person, this other pex-son ought to pay, that if he has to pay the debt, he can recover it back again, from this other persoxi.

The plaintiffs in ex-ror say the laxid was pecuxxiax-ily liable for the debt. Suppose it was; McCax-ter owned the laixd axxd was therefore bound to secure the saxne from the taxes; and as between McCarter and Greer, Greexwas bound in law, and in equity and justice, and by axx implied agreement, to secure McCarter and save him harmless.

When McCarter paid the taxes, an action accrued in his favor and against Greer. He had a right to pay the taxes at the time he did, and look to Greer to reimburse him, although he might have waited four or five days longer before his land would have been sold for the taxes.

Limitation op Actions: The statute of limitations commenced to run ease; when McCarter paid the taxes, but it was a three years’ statute, under section- 21 of the code, (Comp. Laws, 127,) and not a two years’ statute, as pleaded by the defendant below. The action was not barred by any statute when the suit was commenced, and certainly not by the statute that the defendant below pleaded. Hence, the second count of the defendant’s answer stated no defense to the action, and the demurrer thereto was properly sustained by the court below.

Surety on Appeai: The ' plaintiffs below also complain that the . . court erred in rendering judgment against Whittaker. We think, the court did not err. The following statute, as we think, settles the question. It is the latter part of section 9, of an act, approved February 26,1867, (Laws of 1867, page 78,) which reads as follows: “When the appellee shall recover in the district court, judgment shall be rendered, jointly, against the-appellant and his securities on the appeal.”

Appearance : Whittaker cannot complain; he is presumed __ _ to have known what the law was, lie voluntarily became a party to the suit when he signed the appeal bond, and thereby assumed all the responsibilities, that this law imposes upon him, as surety for Greer.

The judgment of the court below is affirmed.

All the justices concurring.