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liance thereon the deed was accepted 90 N. W. 1005, the view was first from the seller and the considera- expressed, though the question was tion paid to him. The check was not involved in the case, which was not paid, and thereafter the entry to the effect that estoppel would not of payment upon the books of the operate against a municipal corpocollector was canceled. The action ration acting in a governmental cawas by the purchaser of the prop- pacity. Upon a rehearing a second erty to restrain the defendants from opinion was written in which that asserting as against him, who was a question was reserved. The lanbona fide purchaser, that the taxes guage of the opinion upon renearing, and assessments had not been paid. so far as it has any bearing at all, It was there held that the defend- would seem to indicate that the ants were not estopped, because, in court was leaning in the opposite diissuing the receipt, the tax collector rection from that indicated in the had no intention to influence the con- first opinion. It is of the essence of duct of anyone by it, and it was justice to have a fixed standard, and not apparent to him that the issuing that there should not be one for of the receipt might operate as a the state or its municipal corporarepresentation that the taxes had tions and another for the citizen. been paid. It was said that, before If it should be held that the county there will be an estoppel, “there was not estopped in a case like the must be such intention, or that it present, it would seriously interfere must be so apparent that the repre- with the facility with which real essentation will have that effect, that tate transactions are conducted. It the intention must be presumed.” is a well-known fact that it is a comThe rule there stated is the same mon occurrence for the purchaser of rule which is applied in this state property, before he pays over the where a public or municipal corpo- purchase price, to have exhibited to ration is acting in a proprietary ca- him receipts showing the payment pacity as distinguished from a gov- of taxes, and in reliance upon these ernmental. There is no discussion the purchase price is paid. If the in the opinion as to the difference in purchaser cannot rely upon the offithe two capacities in which a munic- cial receipt of the proper officer, it ipal corporation may act.
would lead to endless inconvenience. In Franklin County v. Carstens, It is said, however, if the doctrine of 68 Wash. 176, 122 Pac. 999, it was estoppel be applied, then it will inheld that the defendant, which, by terfere with the convenient practice declaration and conduct of its offi- which is now adopted by county cers, had induced certain conduct, treasurers in accepting checks in would be estopped.
payment of the taxes and issuing a The basis of the Kuhl Case, which receipt therefor. It can hardly be deals with a corporation acting in a assumed that a county treasurer governmental capacity, and that of makes it the invariable practice to Franklin County, which deals with issue a receipt upon the presentaa municipal corporation acting in a tion and acceptance of every check private capacity, are the same. If presented in the payment of taxes. the same rule is to be applied by the In issuing the receipt a county treascourt deciding the Kuhl Case when urer could hardly be ignorant of the the question is one involving a gov- fact that it does constitute a repreernmental function as when a mu- sentation, or may be relied upon by nicipal corporation is acting in a a party purchasing the property proprietary capacity, then the view therein described, that the taxes are of that court would not be in har- in fact paid. It seems to us that the mony with the doctrine of the better rule is that announced in CurFranklin County Case.
nen v. New York, 79 N. Y. 511. In Philadelphia Mortg. & T. Co. v. The questions whether Mrs. Omaha, 65 Neb. 93, 57 L.R.A. 154, Seward, the respondent, would have (122 Wash. 225, 210 Pac. 378.) had a right to maintain an action The judgment will be affirmed. against the county treasurer and his bondsmen, and whether or not the
Parker, Ch. J., and Holcomb, county will now have a right to
Mackintosh, and Hovey, JJ., concur. maintain such action, are not now Petition for rehearing denied Debefore us, and we express no opin- cember 22, 1922. ion thereon.
Estoppel to dispute tax receipt as against one dealing with property on faith
The reported case (SEWARD FISKEN, ante, 1208) stands alone in holding that a county is estopped to dispute a tax receipt as against one dealing with the property in reliance thereon. It appeared that the county treasurer accepted a check from the owner of the land as payment of the taxes due, and delivered to him a tax receipt showing that the taxes were properly paid. The check given in payment of the taxes was dishonored for lack of sufficient funds. Subsequently the land was conveyed to the plaintiff, who purchased relying on the tax receipt exhibited by the owner, and the county is held to be estopped to dispute his title.
The case finds support, however, in several analogous cases. Thus in Philadelphia v. Anderson (Philadelphia v. Baxter) (1891) 142 Pa. 357, 12 L.R.A. 751, 21 Atl. 976, a city was held to be estopped by a certificate of a search for taxes, signed and issued by the receiver of taxes. The court said: “The law makes it the duty of the receiver of taxes to certify the liens against any particular piece of real estate. If this certificate is false and misleading, one who acts upon it in good faith has a right to insist that the city is bound by it. The city is not above the duty to deal fairly and justly with its citizens, and to speak the truth of them when the duty to speak for their information rests clearly on it. ... It was the proper and the only reliable source of information open to the interested inquirer. It was kept by and in the custody of the receiver, whose duty it was to certify liens appearing upon it. When ap
plied to, it was his duty, as the repres tative of the city, to state truly the liens against the real estate inquired about.
The purchaser applied for and had a right to receive a certificate in proper form, informing him of the exact amount of the demands of the city for unpaid taxes. A certificate intended to convey the needed information was furnished, and, relying on the truth of its statement, the title was taken and the purchase money paid over. Having thus led the purchaser to pay the amount of the taxes of 1875 to his vendor as purchase money, the city cannot now be permitted to set up the mistake of its officers as a reason for compelling the payment of the money a second time. If it was a mistake, as it was acted upon in good faith by the purchaser, the city cannot now assert a lien for the taxes of 1875, or deny the facts which the certificate asserted.”
So, in Curnen v. New York (1880) 79 N. Y. 511, it was held that the act of a city officer in making a tax on the records as paid creates an estoppel as against a purchaser of the land relying on the record.
But the opposite view was held in Kuhl v. Jersey City (1872) 23 N. J. Eq. 84. In that case it appeared that the collector of taxes, on receiving a check from the owner of the land, signed and delivered a tax receipt. On the same day the land was conveyed to the plaintiff, who accepted the deed, relying on the receipt. Subsequently, when the check given to the tax collector was not paid, the defendants, who had entered the taxes as paid on the proper tax records,
canceled the entry and advertised the representation will have that effect, , land for sale. The court, in holding that the intention must be presumed. that the tax receipt was merely evi
If it was held that the coldence and not conclusive as an estop- lector or the city was estopped by pel, said: “The complainant contends such a receipt, it would, of necessity, that the defendants are estopped as put an end to the convenient practice against him from denying the pay- everywhere adopted, of paying taxes ment, because, by the receipt given by checks; every taxpayer would be to Newkirk, they induced him to pay obliged to produce and count out lethe full consideration, and it will be gal tender notes. Tax receipts are inequitable now to permit them to only intended as evidence in favor of show that the receipt was not true, the taxpayer against the city, not as and that the taxes are unpaid.
muniments or evidences of title. The There is a seeming conflict among the defendant Love, in this case, did not numerous decisions on the doctrine intend it as such, and this must have of estoppels in pais, sometimes called been known to the complainant. Simequitable estoppels, whether anyone ple receipts have always been held will be estopped by a representation not to conclude the person giving made, which turns out not to be true, them. . . The giving this receipt where there was no intention to in- by Love was not culpable negligence fluence the conduct of anyone by it, or carelessness; it was done accordand where it was not apparent that ing to the usual course of business, the representation would have that ef- relying upon the rule that if the check fect. I take the doctrine established was worthless the receipt was also by the decided weight of authority, of no validity, except to change the that there must be such intention, or burden of proof. This was known to that it must be so apparent that the the complainant." R. E. LaG.
Husband and wife - liability for torts of wife.
1. The common-law liability of a husband for the voluntary torts of his wife is abrogated so far as concerns those connected with her separate property, by the Married Women's Act.
[See note on this question beginning on page 1218.] - liability for tort of wife - negli- his wife in driving her automobile for gent use of automobile.
her own pleasure at a time when he is 2. A man is not, since the passage not present. of a statute emancipating married [See 13 R. C. L. 1233.] women, liable for the negligent act of
CERTIORARI to the Court of Civil Appeals to review a judgment affirming a judgment of the Circuit Court for Hamilton County granting a motion of the defendant husband for direction of a verdict in his favor notwithstanding a verdict for plaintiff, in an action brought to recover (-- T'enn. , 216 S. W. 530.) damages for personal injuries alleged to have been caused by the negligent operation of an automobile by the defendant wife. Affirmed.
The facts are stated in the opinion of the court.
Messrs. Whitaker & Foust, for 1222; Schuler v. Henry, 42 Colo. 367, plaintiff in certiorari:
14 L.R.A. (N.S.) 1009, 94 Pac. 360; The Act of 1919 did not abrogate Martin v. Robson, 65 Ill. 129, 16 Am. the rule of the common law, and re- Rep. 578; Lane v. Bryant, 100 Ky. 138, lieve the husband of liability for the 36 L.R.A. 709, 37 S. W. 584; Gustine torts of his wife committed out of the v. Westeberger, 224 Pa. 455, 73 Atl. presence of the husband.
913; Bourland v. Baker, 141 Ark. 280, Baker v. Dew, 133 Tenn. 133, 179 20 A.L.R. 525, 216 S. W. 707; Hinds v. S. W. 645; State v. Cooper, 120 Tenn. Jones, 48 Me. 348; Ricci v. Mueller, 549, 113 S. W. 1048, 15 Ann. Cas. 1116; 41 Mich. 214, 2 N. W. 23; Cooley, Gill v. McKinney, 140 Tenn. 560, 205 Torts, 3d ed. p. 197. S. W. 416; Lillienkamp v. Rippetoe, Although some courts hold that the 133 Tenn. 57, L.R.A.1916B, 881, 179 husband is not relieved generally S. W. 628, Ann. Cas. 1917C, 901; Ben- from all of his wife's torts, yet even nett v. Hutchens, 133 Tenn. 65, 179 S. those courts hold that he is relieved W. 629; Knoxville R. & Light Co. v. from liability for torts committed by Vangilder, 132 Tenn. 487, L.R.A.1916A, her in managing her own property. 1111, 178 S. W. 1117, 10 N. C. C. A. Boutell v. Shellabarger, 264 Mo. 70, 820; Chattanooga v. Čarter, 132 Tenn. L.R.A.1915D, 847, 174 S. W. 384; 609, 179 S. W. 127; Henderson Grocery Quilty v. Battie, 135 N. Y. 201, 17 Co. v. Johnson, 141 Tenn. 131, 207 S. L.R.A. 521, 32 N. E. 47, 1 Am. Neg. W. 723; Moffatt v. Schenck, 141 Tenn. Cas. 177; D. Wolff & Co. v. Lozier, 68 305, 210 S. W. 157; Mayo v. Bank of N. J. L. 103, 52 Atl. 303; Mayhew v. Gleason, 140 Tenn. 423, 205 S. W. 125; Burns, 103 Ind. 328, 2 N. E. 793. Morgan v. Kennedy, 62 Minn, 348, 30 The Married Women's Act destroys L.R.A. 521, 54 Am. St. Rep. 647, 64 N. the reason on which was based the W. 912; Henley v. Wilson, 137 Cal. husband's common-law liability for 273, 58 L.R.A. 941, 92 Am. St. Rep. 160, torts not committed in his presence. 70 Pac. 21; Taylor v. Pullen, 152 Mo. 15 Am. & Eng. Enc. Law, 2d ed. pp. 434, 53 S. W. 1086; Fowler v. Chiches- 894, 895; Bishop, Non-Contract Law, ter, 26 Ohio St. 14.
$8538-541; Price v. Clapp, 119 Tenn. The automobile was not a gift to 425, 123 An. St. Rep. 730, 105 S. W. the defendant wife.
864; Knoxville R. & Light Co. v. VanBalling v. Manhattan Sav. Bank & gilder, 132 Tenn. 487, L.R.A.1916A, T. Co. 110 Tenn. 294, 75 S. W. 1051; 1111, 178 S. W. 1117, 10 N. C. C. A. Sheegog v. Perkins, 4 Baxt. 273; Shu- 820. gart v. Shugart, 111 Tenn. 179, 102 The Married Women's Act is conAm. St. Rep. 777, 76 S. W. 821; Scott strued as effectually making two perv. Union & Planters' Bank & T. Co. sons out of the one who existed under 123 Tenn. 258, 130 S. W. 757; Royston the common law; each of which perv. McCulley, - Tenn. - 52 L.R.A. ,
sons is responsible for him or herself, 899, 59 S. W. 725; 21 Cyc. 1297, 1298; and agents, exactly as are two persons Gould v. Glass, 120 Ga. 50, 47 S. E. between whom the marital relation 505.
does not exist. Messrs. Trimble & Martin, for de- Morton v. State, 141 Tenn. 357, 4 fendants in certiorari:
A.L.R. 264, 209 S. W. 644; Henderson The husband is relieved from lia- Grocery Co. v. Johnson, 141 Tenn. 127, bility for all torts committed by his 207 S. W. 723; Moffatt v. Schenck, 141 wife, regardless of whether the tort Tenn. 305, 210 S. W. 157; Gill v. Mcwas committed in the management of Kinney, 140 Tenn, 549, 205 S. W. 416; her own property.
Mayo v. Bank of Gleason, 140 Tenn. Hageman v. Vanderdoes, 15 Ariz. 423, 205 S. W. 125; Collier v. Struby, 312, L.R.A.1915A, 491, 138 Pac. 1053, 99 Tenn. 241, 47 S. W. 90; McIrvin v. Ann. Cas. 1915D, 1197; Culmer v. Wil- Lincoln Memorial University, 138 son, 13 Utah, 129, 57 Am. St. Rep. 713, Tenn. 260, L.R.A.1918C, 191, 197 S. W. 44 Pac. 833; Norris v. Corkill, 32 Kan. 862; Gould v. Frost, 138 Tenn. 467, 409, 49 Am. Rep. 489, 4 Pac. 862; 196 S. W. 949; Phillip Carey Co. v. Goken v. Dallugge, 72 Neb. 16, 99 N. Harrison, 138 Tenn. 697, 200 S. W. W. 818, 101 N. W. 244, 103 N. W. 287, 829; Day v. Burgess, 139 Tenn. 559, 16 Am. Neg. Rep. 479, 9 Ann. Cas. L.R.A.1918E, 692, 202 S. W. 911; Kel
lar v. Kellar, 142 Tenn. 524, 221 S. W. James M. Ingle, notwithstanding 189; Parlow v. Turner, 132 Tenn. 339, the verdict of the jury, which was 178 S. W. 766; Hux v. Russell, 138 overruled, and she appealed from Tenn. 272, 197 S. W. 865.
the court's judgment dismissing her Hall, J., delivered the opinion of suit as to said defendant to the the court:
court of civil appeals. That court An action of damages brought by affirmed the judgment, and the case Mrs. Anna Foster, who will herein- is now before this court upon Mrs. after be referred to as plaintiff, Foster's petition for writ of certioagainst James M. Ingle and wife, rari, and for review. Mrs. James M. Ingle, who will here- The evidence shows that the autoinafter be referred to as defend- mobile which collided with the ants, to recover for personal inju- plaintiff, and caused her injuries, ries sustained by plaintiff growing belonged to Mrs. Ingle, and was beout of defendant Mrs. Ingle driving ing operated or driven by her along an automobile over and against her Market street in the city of Chattaon Market street in the city of Chat- nooga, for her own pleasure. There tanooga, on March 13, 1921.
was also evidence which tended to On the trial of the case in the cir- show that the collision with the cuit court of Hamilton county, be- plaintiff was due to the negligence fore the court and a jury, at the of the defendant Mrs. Ingle. Mr. conclusion of all the evidence, de- Ingle was not in the car, nor was fendants moved the court for a di- he present when the accident ocrected verdict in their favor. This curred. motion was overruled, and the case The question presented by the aswas given to the jury, who returned signments of error for determinaa verdict in favor of plaintiff tion is whether or not the defendant against defendants for the sum of James M. Ingle is liable for a tort $2,500.
committed by his wife while in the Defendant James M. Ingle made control and management of her sepa separate motion for a new trial, arate property.
, assigning, among other grounds, Chapter 126, Public Acts of 1919, that there was no material evidence § 1, provides as follows: “That offered on the trial showing that he married women be, and are, hereby was liable for plaintiff's injuries, fully emancipated from all disabiland that the trial court erred in re- ity on account of coverture, and the fusing to direct a verdict in his fa- common law as to the disability of vor at the conclusion of all the evi- married women and its effects on dence; and moved the court for a the rights of property of the wife, directed verdict in his favor, not- is totally abrogated, except as set withstanding the verdict of the out in § 2 of this act and subsequent jury.
section hereof; and marriage shall The court, after consideration of not impose any disability or insaid motion, granted the same, and capacity on a woman as to the owndirected a verdict in favor of de- ership, acquisition, or disposition of fendant James M. Ingle, and plain- property of any sort, or as to her tiff's suit, as to him, was dismissed. capacity to make contracts and to do
Mrs. James M. Ingle also made a all acts in reference to property motion for a new trial, which was which she could lawfully do if she overruled, and judgment. was en- were not married; but every woman tered against her in accordance now married, or hereafter to be with the verdict of the jury for the married shall have the same casum of $2,500, from which she did pacity to acquire, hold, manage, con
, not appeal. Plaintiff also made a trol, use, enjoy, and dispose of, all motion for a new trial, challenging property, real and personal, in posthe action of the trial judge direct session and to make any contract in ing a verdict in favor of defendant reference to it, and to bind herself