281 S.W. 21 | Ark. | 1926
STATEMENT BY THE COURT.
The New York Life Insurance Company brought this suit in equity against Reese N. Burks to foreclose a mortgage on real estate in Jefferson County, Ark. The complaint alleges that the debt was past due, and asked for a sale of the land in payment of the mortgage indebtedness.
Burks filed an answer admitting the allegations of the complaint. C. M. Nichol was allowed to intervene, and ask to be subrogated to the lien of the State for certain improvement district and county and State taxes levied on said land which he had paid.
The record shows that on the 5th day of March, 1920, Reese N. Burks executed a mortgage on the land in question to secure an indebtedness due by him to the plaintiff in something over $40,000. At the request of the mortgagor, C. M. Nichol, as sheriff and ex-officio collector of taxes in Jefferson County, paid the improvement district and county and State taxes on said land for the year 1922 in the sum of $885.12. Reese N. Burks has failed and refused to pay said sheriff and collector the amount of taxes so paid by him on said land. The record shows that the mortgage was duly recorded, and was a prior lien on the land at the time the payment of said taxes was made.
The chancellor was of the opinion that C. M. Nichol, as sheriff and ex-officio collector of taxes, was entitled to be subrogated to the lien of the State for the amount of state, county and improvement district taxes paid by *792 him, and that his lien was paramount to the mortgage lien of the plaintiff. A decree foreclosing the mortgage was duly entered of record, and it was provided that the proceeds of the sale of the mortgaged property should first be applied to the payment of the judgment in favor of C. M. Nichol for the taxes paid by him, and that the remainder should be applied towards the satisfaction of the mortgage indebtedness.
To reverse the decree in favor of the intervener C. M. Nichol, the plaintiff, New York Life Insurance Company, has duly prosecuted an appeal to this court.
(after stating the facts). At the outset it may be stated that the lien sought to be enforced by the tax collector does not derive its validity from 10053 of Crawford Moses' Digest providing that certain agents paying taxes upon the lands of their principal, of which such agents have the care, are entitled to the benefits of the State's lien for taxes. See Peay v. Field,
We do not consider that the case of Belleclair Planting Co. v. Hall,
The case of Belleclair Planting Company v. Hall,
If the taxes are paid by the owner of the land, the lien is discharged. If paid by a stranger, the lien would continue in force. While not a volunteer in the ordinary sense of the word, the intervener was a volunteer in its legal sense; for his act in paying the taxes was not necessary to protect any interest which he had in the property, and might operate to the injury of the mortgagee.
The result of our views is that the chancery court erred in decreeing that the amount of taxes paid by C. M. Nichol as sheriff and collector of Jefferson County was a superior lien on the land to the mortgage of the New York Life Insurance Company.
It follows that the decree in this respect will be reversed, and the cause will be remanded with directions to the chancery court to dismiss the interventions of C. M. Nichol for want of equity.