83 F. 752 | U.S. Circuit Court for the District of South Dakota | 1897
The complainant, a citizen of the state of Iowa, brings this action, as receiver of the Western Home Insurance Company, against the defendants, for the purpose of enjoining the defendant John L. Burke, as county treasurer of Fall River county* S. D., from issuing, and the defendants Henry T. Corson and
The two grounds urged why an injunction should issue restraining the defendants Corson or Russell from receiving, and the defendant
“It certainly cannot be said that the second mortgagee owes any duty to tbe first mortgagee to protect his lien as against tax sales. Neither, on the other hand, does the first mortgagee owe any such duty to the second mortgagee, or to the owner. To the state each one of the three may be said to owe the duty to pay the taxes; and the state will sell the interest of all if none of the three shall pay. As between themselves, the primary duty is upon the mortgagor; but, if he makes default, either of the mortgagees may pay, and one of the two must do so, or the land will be sold, and his lien extinguished. But in such cases, where each has the same right, payment by one is allowed to increase the amount of his incumbrance; for in no other way could he have security for its repayment by the mortgagor, who ought to protect the security he has given. When, therefore, each mortgagee has the same interest in making payment of the tax, and the same right to do so, and the same means of compelling repayment, it may well be held that a purchase by one shall not be suffered to cut off the right of the other, because it is based as much upon his own default as upon that of a party whose lien he seeks to extinguish. It is as just and as politic here as it is in the case of tenants in common to hold that the purchase is only a payment of a tax. But in equity this can only be so when the party paying is in position to add the amount of the payment to the amount of his lien. It has Dever been held that any other person can have'the benefit of the mortgagee’s payment or purchase without Being under any obligation to repay him the cost.”
In this connection it is well to bear in mind that, on the conceded facts in this case, the holders of the junior mortgage have no way of collecting the principal mortgage debt, saying nothing about the taxes that they have paid. By applying the following language to the complainant in this action, it becomes pertinent:
“No doubt, the first mortgagee had a right to insist that the purchase was in part for his protection, and to treat it as a payment merely; but this was at Ms option, and it stood as a good purchase as to all the world, except as to those who might have equities in respect to it, and who should see fit, in proper mode, and by the observance of suitable conditions, to assert their equities. And one fundamental condition in every such case must be that the party claiming the benefit of the purchase shall do what is equitable in respect to it.” Insurance Co. v. Bulte, 45 Mich. 123, 7 N. W. 710.
Complainant comes into this court under these circumstances, and appeals to the conscience of the court to prevent the issuance of this tax deed, and. in no wise has tendered or offered to pay the taxes
As was said in Hart v. Smith, 44 Wis. 218:
“Nor do we understand, that the rule long established in courts of equity, that he who seeks equity must do equity, is qualified or abrogated in favor of a party who seeks to remove a cloud upon his title to real estate by reason of illegal proceedings, taken to enforce a valid tax assessed thereon; and that such jmrty may demand, as a right, from a court of equity, that such cloud shall bo removed without his doing what justice and equity demand,— that is, pay the tax. None of the cases in this court recognise any such right on the part of the plaintiff, and we think no such right exists. It would bo a gross impeachment of the power of a court of equity to deny it the right to demand of its suitors good faith and common honesty, before It shall be compelled to grant them any relief.”
So, conceding that the purchase by Russell simply amounted to the payment of a tax, the complainant is not entitled to any relief until he shall pay the taxes paid for his benefit. It is suggested by counsel for defendant that Russell pur-chased the tax certificates individually, and not as trustee. It is sufficient to say that he could not do this, as it would he a violation of his trust. In the foreclosure proceeding, had in Fall River county, the defendant Russell was seeking to have his mortgage declared to be a first mortgage, and, if he had succeeded, he would have added the taxes paid to the amount of his debt; and merely because he failed in his efforts is no reason why he should be barred from asking the complainant to do. equity. The order of the court will be that the restraining order heretofore issued in this action be, and the same is hereby, continued for the period of 30 days; and it is further ordered that unless the complainant shall pay the taxes represented by the certificates of sale, upon which defendant Corson is applying for a tax deed within said 30 days, said restraining order be set aside, and held to be of no force.