78 P. 228 | Cal. | 1904
Lead Opinion
The court below sustained the demurrer to the second amended complaint, and, the plaintiff declining to further amend, judgment was entered accordingly, and in favor of the defendant, from which this appeal is taken. The complaint consists of two counts. In the first it is alleged that one Murphy, being the owner of a certain tract of land situate in the county of San Luis Obispo, executed a mortgage to the plaintiff October 1, 1895, to secure the sum of thirty thousand dollars, with interest; that subsequently — to wit, February 16, 1897 — said Murphy executed a second mortgage to the defendant to secure the sum of $16,670; that on May 9, 1898, plaintiff brought an action to foreclose his said mortgage, making the defendant herein a party defendant in said action; that said defendant made default, and plaintiff, August 11, 1898, had the usual decree of foreclosure; that on September 5, 1898, said property was sold under said decree of foreclosure and plaintiff became the purchaser for the *55 amount specified in the judgment and decree, and there being no redemption a deed was duly executed and delivered to the plaintiff by the sheriff on said sale April 15, 1899, and ever since said sale the plaintiff has been, and now is, the owner of said land; that on the first Monday of March, 1898, the debt, amounting to $16,670, due defendant, and so secured by said mortgage executed by said Murphy, was assessed by the assessor of said county against the defendant corporation for the purpose of state and county taxes and for special school tax; that said defendant neglected and refused to pay said tax, and that such proceedings were thereafter had by the proper officers of said San Luis Obispo County, because of such failure and refusal to pay said taxes, amounting with interest and penalties to the sum of $405.77; that the lands covered by the said mortgage were duly and regularly sold to the state of California and purchased by said state; that thereafter — to wit, on March 5, 1900 — the plaintiff, in order to remove the lien and encumbrance resulting from such sale, was obliged to pay, and did pay, the sum of $406.30 to effect a redemption of said lands from the sale to the state. The second count is the same as the first, except that it relates to the taxes of 1899, which defendant failed to pay, and which became delinquent, and which the plaintiff paid before any sale thereof to the state.
Among other grounds stated in the demurrer was that the complaint failed to state a cause of action, and we think it was properly sustained on that ground. The appellant bases his claim for a recovery of the amount paid by him to remove the encumbrance and lien on the property he purchased upon the provision of the constitution, carried into the Political Code (Const., art. XIII, sec. 4; Pol. Code, 3627). The provision in the constitution reads: "A mortgage, deed of trust, contract, or other obligation by which a debt is secured, shall, for the purposes of assessment and taxation, be deemed and treated as an interest in the property affected thereby. Except as to railroad and other quasi-public corporations, in case of debts so secured, the value of the property affected by such mortgage, deed of trust, contract, or obligation, less the value of such security, shall be assessed and taxed to the owner of the property, and the value of such security shall be assessed and taxed to the owner thereof, in the county, *56 city, or district in which the property affected thereby is situate. The taxes so levied shall be a lien upon the property and security, and may be paid by either party to such security; if paid by the owner of the security, the tax so levied upon the property affected thereby shall become a part of the debt so secured; if the owner of the property shall pay the tax so levied on such security, it shall constitute a payment thereon, and to the extent of such payment, a full discharge thereof; provided, that if any such security or indebtedness shall be paid by any such debtor or debtors, after assessment and before the tax levy, the amount of such levy may likewise be retained by such debtor or debtors, and shall be computed according to the tax levy for the preceding year."
The constitution, it will be seen, says: "The taxes so levied shall be a lien upon the property and security, and may be paid by either party to such security." Here, however, the plaintiff was not a party to the security in question. After becoming the owner of the property, he redeemed from the state, and paid the taxes assessed upon the land, as stated, for the purpose of relieving his property from this cloud upon his title. The defendant, however, derived no benefit therefrom, and is under no obligation to refund the amount so paid. The question here presented has, however, been directly decided by this court adversely to the contention of the appellant in Canadian Co. v.Boas,
The judgment appealed from is affirmed.
McFarland, J., Henshaw, J., Angellotti, J., concurred.
Dissenting Opinion
I dissent. The facts briefly stated are, that plaintiff held a senior mortgage on lands on which the defendant held a junior mortgage; that the land was valued for taxation high enough to cover the mortgage interest of both mortgagees for the years 1898 and 1899; that in May, 1898, the plaintiff began suit to foreclose his mortgage, and in due course of proceedings purchased the land at foreclosure sale, and obtained a sheriff's deed on April 15, 1899; that in the mean time the taxes assessed on the mortgage interest of the defendant in the land for 1898 and 1899 had not been paid, and the plaintiff, in order to prevent the sale of his land therefor and protect his property, was compelled to pay the tax for 1899 after it became delinquent, and to redeem a sale to the state for the defendant's taxes for 1898. The action was to recover of the defendant the sums thus paid for taxes. Under the provisions of the constitution and section 3627 of the Political Code the mortgage interest of the mortgagee in lands is to be considered as an estate therein the same as any other interest in property.
The principle upon which the action was based is as old as the common law. It is stated and approved as follows in San Gabrieletc. Co. v. Witmer etc. Co.,
The principle is so well established that it seems useless to cite authorities, but the following examples may elucidate the proposition. Hogg v. Longstreth, 97 Pa. St. 255, is substantially the same as the case at bar. The plaintiff, a mortgagee, had purchased the land at the foreclosure sale, and afterwards, in order to protect his land from sale for taxes, was compelled to pay certain taxes assessed against the land while it was held by a purchaser from the mortgagor. It was held he could recover inassumpsit from the grantee of the mortgagor the amount of the taxes thus paid. In Graham v. Dunnigan, 6 Duer, 629, it was held that a tenant for life of a part, having been compelled to pay the taxes against the whole property, can recover of the other owners their proper proportion of the taxes thus paid. There was, of course, no contractual relation between the tenants with respect to these taxes, and it was further decided that such relation is not necessary to support the action. In Goodnow v.Moulton, 51 Iowa, 557-558, the plaintiff, in the belief that he owned the land, had paid the taxes thereon during litigation with the real owner as to the title. The real owner had not paid the tax, nor had he caused it to be assessed in his name. There were no contractual relations between the parties. It was held that the plaintiff could recover of the real owner the taxes thus paid. Where, by operation of law, A is compelled to pay a *60
debt, which in equity and good conscience B should have kept from being claimed, A may recover of B the amount so paid. (TiconicBank v. Smiley,
I can see no point lacking in the facts of this case that would be necessary to bring it within the rule of the foregoing authorities. 1. The plaintiff was compelled to pay the taxes in order to protect his own property. 2. The taxes were the personal obligations of the defendant. "Every tax has the effect of a judgment against the person." (Pol. Code, sec. 3716.) In People
v. Seymour,
The opinions in McPike v. Heaton,
If the defendant should show in his defense that the mortgagor was insolvent, that he had no other security, and, consequently, that his whole estate in the premises and right to the debt had been swept away and destroyed by the foreclosure of the first mortgage, and substantially merged therein, I think the same principles of justice and equity upon which the plaintiff depends would then be operative in aid of the defendant, and would require judgment in his favor. But he should be required to show this, and not have it presumed in his favor.