67 Minn. 303 | Minn. | 1897
This is an appeal by the defendant C. W. Weeks from an order of the district court of Hennepin county denying his motion to dissolve a temporary injunction, issued herein, restraining the defendant Cooley, as auditor of such county, from issuing a warrant to the defendant Weeks for the payment of the sum of $790.03, paid to the treasurer of such county by the plaintiff in redemption of certain land from tax sales, the certificates whereof were held by Weeks.
The material facts, as alleged in the complaint, and for the purposes of this appeal taken as true, are these: On June 14, 1889, William H. Barber was the owner of four lots in the city of Minneapolis, and on that day executed a mortgage on the lots to the plaintiff, to secure the payment of $20,000 in five years, with interest
The taxes on the lots for the year 1889 became delinquent June 1, 1890, and on May 6, 1891, the lots were sold for such taxes to the state for the sum of $492.77; and May 26, 1891, Cole & Weeks purchased the tax certificates on such sale from the state, taking the assignment to C. W. Weeks. There was no redemption from the foreclosure sale on the junior mortgage, and on July 18, 1892, Cole & Weeks, as the beneficial owners, by virtue of such foreclosure, took possession of the lots, and so remained in possession thereof until December 17, 1895, and during all that time collected and received the rents and profits thereof, amounting in the aggregate to several thousand dollars, and paid the plaintiff from time to time the interest on its mortgage up to June 1, 1894, and paid the taxes levied on the lots during their possession thereof, except those for the year 1894. The plaintiff’s mortgage was duly foreclosed by advertise-, ment on December 17, 1894, and the lots sold to it for the amount of its mortgage and costs. No redemption was made from this sale.
The defendant Weeks, for Cole & Weeks, on November 26, 1895, caused notices of expiration of the time to redeem the lots from the tax sale for the taxes of 1889 to be served on their own tenants, who were in possession of the premises; and proof of the service of the notices was filed in the office of the county auditor on December 5, 1895. • The plaintiff took possession of the premises December 17,
The appellant, on these facts, claims: First. That he had a legal right to purchase at tax sale the mortgaged premises, and hold the tax title if no redemption was made, so as to defeat plaintiff’s title derived through its mortgage. Second. If this be not so, still the plaintiff is bound in equity to reimburse him for the amount paid to protect the title from the paramount claim of the state for taxes. Third. That thé plaintiff’s redemption from the tax sales was a voluntary payment. If any one of these claims is valid, when tested by the record on this appeal, then the trial court erred in denying the motion to dissolve the injunction.
1. The first claim of the appellant is determined adversely to him by the decision of this court in the case of Washington L. & T. Co. v. McKenzie, 64 Minn. 273, 66 N. W. 976. When Cole & Weeks took an assignment of the tax certificates in the latter’s name, they were, in fact, the owners of the second mortgage, which was in process of foreclosure; and, by virtue thereof, they became the beneficial owners of the mortgaged premises, subject to the plaintiff’s mortgage. When Cole & Weeks became such owners of the property, they, or the Shattucks for them, held precisely the same title which the plaintiff’s mortgagor, Barber, had after he gave the first mortgage, and therein covenanted to pay the taxes on the premises. Barber’s title, subject to plaintiff’s mortgage, passed to his immediate grantee, Munger, from him to Duffus, from him to Barber, as mortgagee in the second mortgage, and from Mm to Cole & Weeks,
2. As to the appellant’s second claim, it may be conceded that the burden was on the plaintiff to show that it would be inequitable to permit Cole & Weeks to retain the tax certificates as security until reimbursed the amount paid for them, for the reason the plaintiff’s title was thereby protected against the paramount claim of the state for taxes, for the payment of which they were not personally bound. But, if this be so, still the complaint alleges facts sufficient to make a prima facie case in this particular, which, being admitted, shifts the burden upon Cole & Weeks to show that, in equity, they ought to be so reimbursed. They were in possession of the mortgaged premises for three years and five months, and received the rents and profits therefrom, amounting in the aggregate to several thousand dollars, a sum largely in excess of the sum paid by them for the tax certificates. They paid no interest on plaintiff’s mortgage or taxes on the premises for more than a year before they surrendered possession of the premises to the plaintiff. Equitably, they ought to have applied so much of the rents and profits as was necessary to the payment of all taxes and tax liens on the premises; and not have permitted the accumulation of interest on their certificates; ánd equity will regard that done which ought to have been done, and treat the tax certificates as paid from the rents and profits coming to the hands of Cole & Weeks, in the absence of any other equitable considerations.
3. The plaintiff’s redemption from the tax sales was not a voluntary payment. The defendant Weeks appeared upon the records to be a stranger to the title of the plaintiff; hence he appeared on the records to be the owner of an inchoate tax title, which would become absolute as to all the world in a few days, unless a redemption was made. There was no time left to the plaintiff in which to commence
Order affirmed.