35 Kan. 178 | Kan. | 1886
The opinion of the court was delivered by
Edmond Harris and his wife Maria, on June 2, 1880, executed a mortgage to R. D. McCrossen upon lots 3 and 4, in block 94, in the city of Wyandotte, in this state, to secure the payment of a note for $275 with interest. On January 3, 1883, McCrossen obtained a judgment of foreclosure of the mortgage, and in the judgment the taxes then due on the premises were decreed to be a lien thereon. It was
At the time the plaintiff paid the taxes, the mortgage had been extinguished by being merged into the judgment; thei’efore the taxes were not a lien in connection with the mortgage. Therefore no action can be maintained to recover these taxes upon any of the covenants of the mortgage, nor upon the provisions of §148, ch. 107, Comp. Laws of 1879, permitting a mortgagee to pay taxes where the mortgagor fails or neglects so to do. (Vincent v. Moore, 17 N. W. Rep. 81; Hitchcock v. Merrick, 18 Wis. 375; Johnson v. Payne, 11 Neb. 269.) After the judgment was rendered, the amount thereof was a specific lien upon the real estate described therein. Under some circumstances perhaps a party might pay the taxes for the protection of his- lien, and for such payment equity might give him a lien in connection with the judgment; but such a case is not presented. All of the taxes prior to 1883 were included in thejudgment. For the protection of his judgment lien, it was not necessary to pay the taxes of 1883. Section 56, of
The judgment of the district court will be affirmed.