69 Mo. 396 | Mo. | 1879
In March, 1871, Wiliam Evans, being then the owner of lot 355, in McGee’s addition, Kansas City, sold the south half thereof to Charles Evans, who took possession, built a house thereon, and continued in possession, but received no deed until April 29th, 1873. After the sale William Evans, with the consent of Charles Evans, executed two deeds of trust covering the entire lot; one dated November 22ud, 1872, to the plaintiff', Olmstead, as trustee, to secure the payment of a promissory note for $172.69, to Leach & Hall; and one dated April 29th, 1873, to one Eancher, as trustee, to secure a note for $500, to E.E. Hay. On the 21st day of October, 1872, pursuant to the provisions of the' charter of the City of Kansas, a special tax bill was issued to Edward Corrigan, for which he receipted to the city engineer on the 11th day of November, 1872, at which date it became a lien on said lot. On the 14th day of December, 1872, suit was brought on said tax bill, by Corrigan, before a justice of the peace, against William Evans, alone, and on appeal to the special law and equity court of Jackson county, judgment was rendered against him, on said tax bill, on the 15th day of April, 1873, for the sum of $19.58, on which judgment
Section 4, article 9, of the city charter, (Acts 1872, p. 411,) provides that parties interested in the land who are not made defendants, shall not be affected by any judgment obtained'in any suit on any special tax bill, nor by any sale under such judgment; “ and if they claim through or under any parties defendant prior to suit brought, may redeem from the purchaser, or otherwise assert their rights according to equity and good conscience.” It is contended by
So far as the present case is concerned, the incumbrance on the'property in question created by the special tax bill, must be treated as conferring upon the owner thereof the same right which would have been conferred by a mortgage for that amount, and as being similarly subject to redemption. A tender by the debtor to the mortgagee on the law day, will undoubtedly discharge the lien of the mortgage ; and it has been repeatedly decided that a tender by the debtor to a mortgagee of the amount of his debt after the law day, or at any time before foreclosure, will discharge the lien of the mortgage. Jackson v. Crafts, 18 Johns. 110; Edwards v. Farmers’ Fire Insurance & Loan Co., 21 Wend. 467; Arnot v. Post, 6 Hill 65; Kortright v. Cady, 21 N. Y. 343. It has been held, on the contrary, that a tender after default will not discharge the lien of the mortgage. Shields v. Lozear, 34 N. J. Law 504; Perre v. Castro, 14 Cal. 519; Himmelmann v. Fitzpatrick, 50 Cal. 650; Merritt v. Lambert, 7 Paige 344; Maywood v. Hunt, 5 Pick. 240; Currier v. Gale, 9 Allen 522. In Harris v. Jex, 66 Barb. 232, it was said that in order to discharge the lien the tender must be made by the debtor, and that no ' tender will have that effect when made by one who has acquired the equity of redemption, unless he has become bound for the debt. In Frost v. Yonkers Savings Bank, 65 N. Y. 553, however, it was held that the owner of land subject tó mortgage, has a right to discharge it after default, although he is not personally liable for the debt, and a lawful tender by him, will destroy the lien. But the court declined to hold in that case that a junior mortgagee occupies the same position as the owner of the land, and that as* such, he has, under all circumstances, the right to.
It is unnecessary for us, in the present case, to choose between these conflicting authorities aud determine whether a simple tender after default will extinguish the lien, or whether a tender having such effect can be made by a junior incumbrancer as such. The tender made by Day was not made to the owner of the tax bill lien, but to the purchaser at the execution sale under the judgment enforcing the lien. Such a tender cannot divest the purchaser of his title. Day, however, not having been made a party to the suit on the tax bill, had a right to redeem from the purchaser, although he had foreclosed his own trust deed. Farwell v. Murphy, 2 Wis. 533; but such right could only be exercised by petition in equity. Gower v. Winchester, 33 Iowa 303.
As Charles Evans was not made a party to the suit on the tax bill, his rights remained unaffected by the judgment therein and the execution sale. That judgment and sale extinguished'the right of William Evans only to redeem thepropei’ty, as mortgageor, from the lien of the tax ■bill. Tarsney, however, held the interest acquired by him ■subject to redemption by subsequent incumbrancers who were not made parties to that proceeding. When the fund, therefore, arising from the sale under the first trust deed was brought into court for distribution, the sum remaining .after satisfying the two debts secured by the trust deeds and the judgment on the mechanic’s lien, should have been divided between William Evans and Charles Evans, according to their respective interests in the property. Tarsney, the purchaser under the first lien, was entitled to no part of it.
When a first mortgage has been foreclosed without. making a second mortgagee a party, the second mortgagee
Eeversed.