I dissent from that part of the opinion which holds that the Bank of Atkins is entitled to recover the taxes paid by it on the land in controversy.
The bank had merely a mortgage on the life estate. It paid the taxes on the whole estate. The court here holds that it is entitled to recover the taxes so paid out of the remainderman's interest on the ground that the bank was not officious and was not a volunteer in so doing.
The basis of recovery by one who pays taxes on the lands of another is unjust enrichment. A person is not enriched unless he has received a benefit. See 1, a and b, of Restatement of the Law on Restitution. Under *Page 604 13813 of Pope's Digest, it was the duty of the life tenant to pay the taxes and upon her failure to do so the remainderman can declare a forfeiture of the life estate. By paying taxes for the life tenant the bank has deprived the remaindermen of a right given them by statute. It cannot be said as a matter of law that the bank has conferred a benefit on the remaindermen. The bank's only right, therefore, is dependent on its claim under the mortgage against the life tenant or that a benefit has been conferred on the life tenant and she was unjustly enriched. It had a light to recover from her and a right to a lien on her estate. But there has been no benefit conferred upon, or unjust enrichment of, the remaindermen and the bank ought not recover from them nor out of their estate.
MR. JUSTICE McFADDIN concurs in this dissent.