148 Iowa 157 | Iowa | 1910
Lead Opinion
This action was originally instituted in 1902, to foreclose a mortgage on certain real estate in O’Brien county belonging to Mary A. Walker; the mortgages having been given by her and her husband, Warren Walker, to secure payment of their joint promissory note. Van Liew was made defendant as'the holder of an alleged tax title. In this action a decree of foreclosure was entered by the district court of O’Brien county in which any right or interest held by defendant Van Liew in the premises was found to be subject to plaintiff’s right under its mortgage. There was an appeal from this judgment, and it was reversed. See National Surety Co. v. Walker, 127 Iowa, 518. In the meantime no supersedeas bond having been given, there had been a foreclosure sale of the property, and it had been bought in by plaintiff as execution creditor for $600, plaintiff satisfying the costs and giving the Walkers credit on the judgment against them for the balance, and a sheriff’s deed had been issued to plaintiff. On a remand of the case to the lower court after reversal, Van Liew and the Walkers by amendment to' their answers asked judgment against plaintiff in the amount of $600 as improperly received by plaintiff under its foreclosure sale, and further charged that plaintiff and its attorneys- had conspired with other parties to wrong, cheat, and defraud defendants out of the mortgaged property, to the damage of defendants in a further sum. The plaintiff in reply confessed that it acquired no title under the sheriff’s deed, but set up a title, to the premises under a tax deed, and defendants, by further answer, attacked this tax deed, alleging that plaintiff was estopped from claiming title to the property under such deed, and that the deed was obtained by fraud and collusion. The court entered a decree setting aside the sheriff’s sale under the original decree, and declaring the sheriff’s deed to be null and void, but further found that plaintiff was the absolute and unqualified owner of the property in question under
In the former case it is said:
The defendants claim title to the land as against the
In the Hunt case, this court said:
As the vendee took possession, however, and enjoyed the rents and profits, the rule settled in Miller v. Corey, 15 Iowa, 166, would, as between him and his vendor, make him liable. Being thus liable, being bound upon legal and equitable principles, though not by express covenant, to keep down the incumbrances, he could not acquire a title against the vendor., by suffering the land to go to sale, and bidding it in for the taxes. Not only so, but as vendee he could not acquire a title adverse to his vendor by a purchase at tax sale. These rales are well settled, as will be seen by the following, among other cases: Voris v. Thomas, 12 Ill. 442; Glancy v. Elliott, 14 Ill. 456; Willard v. Strong, 14 Vt. 532 (39 Am. Dec. 240); Blake v. Howe, 1 Aikens (Vt.) 306 (15 Am. Dec. 681); Douglas v. Dangerfield, 10 Ohio, 152; Ballance v. Forsyth, 13 How. 18 (14 L. Ed. 32); Blackwell on Tax Titles, 470-2.
The settled rule for this state is that one in possession of real estate or whose duty it is to pay the taxes can not acquire by tax deed a title which will defeat a conflicting claimant or lienholder. Anson v. Anson, 20 Iowa, 56; Stears v. Hollenbeck, 38 Iowa, 550; Curtis v. Smith, 42 Iowa, 665; Seymour v. Harrison, 85 Iowa, 130-133; Hunt v. Rowland, 22 Iowa, 53; Thomas v. Stickle, 32 Iowa, 71; Manning v. Bonard, 87 Iowa, 648; Fair v. Brown, 40 Iowa, 209; Eck v. Swennumson, 73 Iowa, 423; Dayton v. Rice, 47 Iowa, 429; Lillie v. Case, 54 Iowa, 177; Cone v. Wood, 108 Iowa, 260; Busch v. Hall, 119 Iowa, 279; First Con. Church v. Terry, 130 Iowa, 513.
In Terry’s case, 130 Iowa, 513, it is said:
The rule that the life tenant of lands is charged with the duty of paying the taxes which accrue upon the property of which he is enjoying the use, rents and profits is elementary. Olleman v. Kelgore, 52 Iowa, 38; Booth v. Booth, 114 Iowa, 78; Defreese v. Lake, 109 Mich. 415 (67 N. W. 505, 32 L. R. A. 744, 63 Am. St. Rep. 584); Trust Co. v. Mintzer, 65 Minn. 124 (67 N. W. 657, 32 L. R. A. 756, 60 Am. St. Rep. 444). It is equally well
In Dayton’s case, 47 Iowa, it is said:
As between W. S. Nice, the mortgagor, and plaintiff, the mortgagee, the primary duty of paying this tax rested upon the mortgagor. He remained in possession of the property, and it was his duty to keep the taxes paid. So long as the relation of mortgagor and mortgagee continued, this obligation rested upon the mortgagor. It is true the mortgagee might have paid the taxes for the preservation of his security; but if he had done so his claim against the mortgagor would have been, to the extent of the payment, increased. The duty of paying the taxes thus resting upon the mortgagor, he could not set up a title having its origin in a failure to perform this duty, as against the mortgagee. (See Porter v. Lafferty, 33 Iowa, 254.) But it is claimed that the relations of these parties are entirely changed by the fact that the lands had been sold for taxes when the sheriff’s sale under which plaintiff claims was made. The tax sale was made in October, 1871, and the treasurer’s
In Fair’s case, 40 Iowa, 209, it is said:
The question presented for our determination is this: May one incumbrancer defeat the lien of another by acquiring a tax title upon the land bound by the lien of each? A mortgagor, or one claiming title under him, can not defeat the lien of the mortgagee by acquiring a tax title upon the land. Porter v. Lafferty, 33 Iowa, 254; Stears, Administrator, v. Hollenbeck, 38 Iowa, 550. The .rule, in these cases, is based upon the obligation of the mortgagor, or the party claiming under him, to pay the taxes; therefore the act of the party acquiring title through his own default is held to be fraudulent. In the case before us no such obligation rested upon defendant, for he was simply a lienholder, and was bound neither by the law nor contract to pay the taxes which were the foundation of his tax title. ■' But in another view his act is fraudulent against the plaintiff and the mortgagor. The land is a common
In Eck v. Swennumson, 73 Iowa, 423, the court said:
It will be observed that S. Swennumson was the owner of the mortgage when he bid in the premises at tax sale, and that he still held the certificates of purchase when he assigned -the judgment of foreclosure to plaintiff. One of the grounds upon which plaintiff demands relief against the tax deed is that, as Swennumson had the right to pay the taxes for the protection of his security, his purchase at the tax sale -should be regarded merely. as a payment of them, made for that purpose, and consequently neither he, nor any person holding under him, could acquire title under the certificates; and we think this position should be sustained. It was held in Fair v. Brown, 40 Iowa, 209, and Garrettson v. Scofield, 44 Iowa, 35, that a junior mortgagee can not, by bidding the property in at tax sale, acquire title, and thereby defeat the senior mortgage; and in the former case it is said- that he can not by that means acquire title as against the mortgagor. The ground of the holding is that, as the party had the right to pay -the taxes for the protection of his security, it would be inequitable to permit him to acquire title by purchasing -the property for the delinquent taxes, and thereby defeat the lien of the .senior mortgage, and cast upon the mortgagor the weight of both his own and the senior lien. Plaintiff’s equities are equally as strong as would be those in favor of a senior mortgagee or the mortgagor. He in fact stands
Cone v. Wood, 108 Iowa, 260, extends the rule here announced. Further quotation from the authorities is unnecessary. From the quotations already made it is apparent that so long as plaintiff claimed under its mortgage, or in virtue of the foreclosure sale of the property, it had the right and it was its duty to pay the taxes and it could not, while insisting upon its mortgage or a title acquired thereunder, obtain a tax title either against the mortgagors or any other holder of a title or lien upon the property. Had plaintiff waived its mortgage or done any other act showing an abandonment thereof before acquiring the tax title, another rule might perhaps obtain, as in Curtis v. Smith, supra; but at the time it acquired its tax title it was insisting both in the lower court and here that its mortgage and the sale under the foreclosure decree were valid. In such circumstances it could not acquire a tax title. In Garrettson v. Scofield, 44 Iowa, 35, it is said:
The defendant, Scofield, and the plaintiff were both mortgagees, and both claiming interests in the land to the extent of their respective mortgages, and while it is true there was no absolute duty resting upon either to pay the taxes, yet they had such an interest in the land as to make it necessary to do so in order to properly protect the title. Under these circumstances we do not believe that payment of the taxes by either at tax sale should entitle him to the statute penalties. See Fair v. Brown, 40 Iowa, 209. Scofield having taken the junior mortgage for a large amount, such as we are bound to believe, frota subsequent events, it was not expected Whitstine or his grantee would pay; his relation to the plaintiff in this case is more in the nature of a subsequent purchaser from Whitstine than that of a stranger purchasing at tax sale. At least both were the holders of liens and the payment of taxes was necessary to protect the title.
Lastly it is claimed that defendant Van Liew does not tender an issue as to the validity of plaintiff’s tax deed. We think this issue was tendered by a motion to strike, by an answer to plaintiff’s amended petition and by a demurrer to plaintiff’s reply to this answer. The results of these findings are that plaintiff’s'' tax deed, is declared invalid, that defendant Van Liew is entitled to a restitution of the jn’operty sold at foreclosure sale, or if that can not be had then a judgment for the value thereof, that plaintiff is entitled to reimbursement for the amount paid out for the assignment of the tax certificate, provided this amounts to no more than it would have been obliged to pay had it duly redeemed. Plaintiff is also entitled to credit for the amount expended to repair or for improvements upon the property, including insurance, if any, paid, and it should be charged with all the rents and profits thereof. The testimony is not sufficiently definite for us to make the computation, and the case will be remanded for such an accounting and for a final decree in harmony with this opinion. Reversed and remanded.
Dissenting Opinion
(dissenting). — The controlling ultimate
When plaintiff acquired its tax title Van Liew’s tax title was outstanding, and hostile. Can it be true that one who claims title to or a lien upon property which has been bought in by a stranger to the title at tax sale can not, at a subsequent tax sale, acquire a new and independent tax title? None of the cases cited by the majority announce any such doctrine. The holder of a tax title is not a lienholder, nor an owner in common. As to him the original owner or one claiming under the same chain of title as the owner owes no duty to pay the taxes. The
In my judgment Van Liew is entitled to no relief as against the tax title acquired by plaintiff.