28 Minn. 276 | Minn. | 1881
The facts of this case, so far as here material, are as follows: On the 30th of September, 1867, defendant Armstrong, being indebted to the plaintiff’s testator in the sum of $500, executed to him a mortgage, to secure payment thereof, upon the premises described in the complaint, conditioned “that if the said Thomas H.
Armstrong having failed to pay the debt secured by the mortgage, plaintiff brings this action to foreclose the mortgage, making Marston a party, and praying that the tax titles obtained by Armstrong, under whom she claims, be adjudged in fraud of plaintiff’s rights, and that the purchase of the premises at such tax sales be adjudged to operate merely as a payment of the taxes. Inasmuch as plaintiff’s mortgage was of record, defendant Marston is chargeable with notice of it, and
On behalf of defendant, it is insisted that inasmuch as the mortgage contained no express personal covenants on the part of Armstrong to pay the taxes, and inasmuch as he was neither the owner nor in possession of the premises at the time these taxes were assessed, therefore he was under no obligation to pay them, and hence he was under no disability which prevented his acquiring a tax title, even as against his mortgagee. The text-books frequently lay down, without limitation or qualification, the general proposition that a mortgagor cannot acquire a tax title so as to defeat' the title of the mortgagee. We are not prepared to say that so broad and unqualified a proposition is an accurate statement of the law; neither are we called on to decide it in this case. It is undoubtedly true that in most of the cases cited to sustain this proposition the turning point was the obligation of the party setting up the tax title to pay the taxes. The principle underlying all such cases is that a party cannot build up a tax title upon his own neglect of duty. A person will be precluded from making and relying upon a purchase of land for taxes whenever something exists in the facts of the case which imposes upon him the duty to pay the tax, or something which renders it inequitable, as between himself and the holder of the existing title, that he should make the purchase. Blackwood v. Van Vleit, 30 Mich. 118. From the principles established by the adjudicated cases, we think it follows that a mortgagor cannot, as against the mortgagee, build up a tax title upoh a default in the conditions of the mortgage. A mortgage has been defined as a conveyance of land as security for the payment of money or the performance of some other act, and to be void upon such payment or performance. 1 Hilliard on Real Prop. 540. Nothing but performance of the condition or an express release will operate to discharge the lien of the mortgage. 1 Hilliard on Real Prop. 611. Nothing but payment of the debt and taxes will discharge the mortgage. This position is grounded on the words of the condition of the mortgage
In the case at bar-the condition of the mortgage is that if the mortgagor shall pay the debt, “and also pay all taxes which may be hereafter assessed on said premises, then this deed to be void.” It is immaterial that this latter part of the condition, in reference to the payment of taxes, is merely in aid of the principal debt secured by the mortgage. So long as that debt is unpaid,- this latter part of the condition is as operative and vital a part of the terms of the contract as that making the conveyance conditional upon payment of the mortgage debt. 1 Jones on Mortgages, § 77. So long as the mortgage debt is unpaid, the mortgagor can no more acquire title, so as to defeat the mortgage lien founded upon his default in that part of the condition, than upon a default in any other part of it. Suppose that, in the condition of this mortgage, in place of this proviso regarding the payment of taxes, there had been inserted the following: “And also pay a certain prior mortgage on said premises, executed by a former owner of the premises, ” — for the payment of which, however, defendant Armstrong was not personally liable to the holder thereof; and suppose, default having been made in the payment of such prior mortgage, it should be foreclosed, and the premises sold, and at such sale defendant Armstrong had become the purchaser, — would he be permitted thus to acquire title so as to defeat the lien of his own mortgage? We apprehend not. A court would hold that, as against his mortgagee, such purchase operated simply as a payment of the prior mortgage.
We think the case supposed analogous to the case under consideration. The condition in the former case, in reference to payment of the prior mortgage, like that in the latter regarding the payment of taxes, was merely in aid of the security for the debt secured by the mortgage. Both referred to paramount liens — one by virtue of its priority in time, the other by virtue of the paramount rights of the state. In neither case would the mortgagor be permitted to acquire title so as to defeat the lien of the mortgage, because to allow him to do so would
.The judgment of the court below is reversed, and the cause remanded with instructions to enter judgment or decree in favor of plaintiff, in accordance with this opinion.
