Parker v. Daly

¶1On Petitions for Rehearing.

¶2Opinion by

¶3A petition for rehearing was filed by plaintiff and also one by defendant. Plaintiff urges that the failure of defendant to pay the taxes on the land after he acquired the title thereto, and the payment thereof by plaintiff after the year 1896 (probably assessed to plaintiff), is a sufficient showing of negligence or at least acquiescence by the defendant in plaintiff’s possession of the property and the expenditure of money thereon to constitute bad faith toward plaintiff,' but this contention is without merit.

¶42. Whether the tax for the year 1896 and subsequent years was levied against plaintiff or against defendant, the payment thereof by plaintiff was a voluntary payment, which imposed no obligation or liability upon defendant, and could not create a right in plaintiff’s favor.

¶5*571“No man can make another his debtor against his will; as if a man pay my debt without my request, I am not bound to repay him.” Rohr v. Baker, 13 Or. 350 (10 Pac. 627); Glenn v. Savage, 14 Or. 567 (13 Pac. 442); Forbis v. Inman, 23 Or. 68, 71 (31 Pac. 204); Meyer v. Livesley, 56 Or. 383 (107 Pac. 476).

¶6To create a liability on the part of defendant in favor of plaintiff, there must have been an obligation on the part of plaintiff to pay the money, or if it was voluntarily paid, and it was beneficial to the defendant, there must have been also a subsequent promise by defendant to repay him. But, even if plaintiff has brought his payment of the taxes, levied subsequent to 1896, within this rule, it would not justify his possession of the lands so taxed. Defendant by his petition contends that the suit should not be dismissed, but that defendant should have the relief sought by the action of ejectment.

¶73. This suit is in the nature of a crossbill, by which plaintiff sought to avail himself of equitable defenses to the action of ejectment within the provisions of Section 390, L. O. L., “which shall stay the proceedings at law, and the case thereafter shall proceed as in a suit in equity, in which said proceedings may be perpetually enjoined by final decree, or allowed to proceed in accordance with such final decree.” The parties to the law action are entitled to have the issues therein tried by a jury, and the crossbill in such a case is only for the purpose of establishing the plaintiff’s equitable defenses, and if valid, the law action may be perpetually enjoined; but, if the right to such relief is not established, then the trial of the action may proceed. This is recognized as the proper procedure in Oatman v. Epps, 15 Or. 437 (15 Pac. 709), and in Finney v. Egan, 43 Or. 1 (72 Pac. 136). In the latter case Mr. Chief Justice Moore says:

¶8“When the suit was terminated without any restriction in the final decree, the suspension of the action at law was necessarily ended, thus allowing the trial of the *572action to proceed to final determination of the remaining questions involved therein.”

¶9The petitions for rehearing are denied.

¶10Reversed : Suit Dismissed : Rehearing Denied.