Groom v. State ex rel. Bowlin

24 Ind. 255 | Ind. | 1865

Ray, J.

The act “To amend the several acts for the loaning and collecting of the Sinking Fund, and for other purposes,” approved January 13, 1845, provides that “in cases of future sales of lands and lots bid in for the State, and in all cases of sales heretofore made, or hereafter to be made, upon foreclosure of mortgages to said fund, a certificate of purchase, signed by the president of the board, or by any member thereof by order of the board, shall be deemed sufficient evidence of such purchase; and where full payment of the purchase money shall have been, or may be, made, it shall be lawful for the president of the board to execute and deliver to the purchaser, or purchasers, his, her or their heirs or assigns, in the name of the state, a patent, or deed, for such lands or lots, which shall vest in him, her or them, and in his, her or their heirs and assigns forever, all the right, title and interest which the mortgagor had in the lands or lots mortgaged, and bid in and sold, at the date of the mortgage, freed and discharged from all taxes and assessments made or levied for any purpose whatever, between the date of said mortgage and the date of said deed, or patent.”

The repealing act of 1852 excepts “All laws relative to the Sinking Fund,” and “ all laws regulating the Sinking Fund.” It is insisted by the appellees that under this act, the purchaser at the sinking fund sale was entitled to receive from the state a deed for the mortgaged property, “freed and discharged from all taxes and assessments made or levied for any purpose whatever, between the date of said mortgage and the date of said deed or patent.?’ A careful reading of the provisions of the act leads us to a different- conclusion. The exemption, by the terms of the law, applies only to “lands or lots mortgaged, and bid in and sold.” This language, in connection with the requirements of other provisions of the law, that the land should be first offered for sale, and should only be bid in by the State when a sum sufficient to pay the mortgage debt, interest and costs,' was not tendered, clearly shows that neither by the letter nor' the spirit of the act should such: first offer of sale bo regarded as intended to release the-property then sold from the lien of taxes. It is only whem such offer has been made subject to taxes, and a failure to sell has afforded prima facie evidence that the land is not worth both the mortgage debt, interest and costs, with the-addition of the taxes assessed, that the State, electing to-secure the trust fund rather than the taxes, which are due-partly to herself, waives the lien of those taxes, and authorizes the property to be bid in for the State, and afterward offered for sale for the sum due upon the mortgage.

■ The case of Hamilton, Auditor, &c., v. Langsdale, 1 Ind. 128, does not conflict with the construction we place upon the act. In the case cited, the land had been bid in Tor the State, and was subseqently sold to Langsdale. In the case at bar, the land was purchased at the sinking fund sale, and does not seem to have ever been bid in for the State. Had it been otherwise, the purchaser, having acquired his-title by purchase at tax sale two years before the SinkingEund Commissioners offered the land under the mortgage, might, perhaps, have been required, if he desired to perfect his title, to pay off the mortgage debt and release the property, and assert his tax title to the' land. The present state of the pleadings does not require us to decide this point... The demurrer should have been sustained to the complaint..

G. W. Lowly and N. JR. Overman, for appellant. J. Green, for appellee.

The judgment is reversed, and the cause remanded for further proceedings in accordance with this opinion.