Alexander v. Shonyo
20 Kan. 705
Kan.
1878
Check Treatment

The opinion of the court was delivered by

Horton, C. J.:

There are several reasons in this case for the affirmance of the judgment of the court below. In the first instance, it is very doubtful, under the provisions of our statute relating to mortgages of real estate, whether a mortgagee, before foreclosure of his lien, can maintain any action for damages to the premises described in the mortgage, notwithstanding the insolvency of the mortgagor, and the insufficiency of the mortgaged premises to pay the claim against it. Vanderslice v. Knapp, ante, p. 647; Chick v. Willetts, 2 Kas. 385. But we need not pass upon that question. The record discloses the fact, that with the exception of the boiler and engine, for the value of which this action is brought, the premises would not pay the expense of a foreclosure; that said boiler and engine were worth at the time they were sold, only fifty dollars; that prior to such sale, the defendant in error purchased from Doniphan county a tax-certificate on the mortgaged premises, for $304.34, which said tax-certificate was during the pendency of the action in the court below presented to the county clerk of Doniphan county, and a tax deed obtained thereon to such defendant. Plaintiff in error has never attempted to pay these taxes, or redeem the property. The taxes, in any event, are a first lien on all the property embraced in the mortgage of plaintiff, and the lien continues until such taxes, and any penalty, charges, and interest which may have accrued, shall be paid by the owner, *708or other person liable to pay the same. The statute further provides, that where any real estate shall be sold on a foreclosure, the court shall order all taxes (and penalties thereon) against such lands to be discharged out of the proceeds of such sale. Opdyke v. Crawford, 19 Kas. 604. So if the defendant had not disturbed the mortgaged premises, on a sale under a foreclosure, the property, including the boiler and engine, if it brought its value, would have realized less than $100. Instead of bringing an action in foreclosure, the plaintiff attempts to obtain judgment for the injuries to the real estate by the removal of the engine and boiler, and, without reimbursing the defendant for the sums expended by him, (which sums are a first lien on the property under the tax-certificate,) claims the right to realize, in this way, all the value of the mortgaged premises, without being compelled to ,pay, or to have deducted from its value, the taxes due. The plaintiff’s claim cannot be maintained, and he was properly defeated. The facts show that Shonyo, under his tax-certificate, had a superior claim to the property sued for to that made by Alexander under his mortgage. The lien of the latter was subordinate to the lien of the former. It is immaterial whether the conclusions of the court below as to the law of the case, were erroneous or not. The facts warranted no judgment against the defendant, and no error was committed prejudicial to the plaintiff.

It is exceedingly strange that the taxes and charges so greatly exceeded the value of all the premises; and no reason is shown why defendant paid over $300 to obtain a tax title to property of less value than $100. But we take the findings of fact as they are presented, and base our opinion thereon.

The judgment of the district court will be affirmed.

All the Justices concurring.