9 S.D. 515 | S.D. | 1897
This case comes before us upon a petition for a rehearing. The opinion is reported in 9 S. D. 341, 69 N. W. 14, and the facts are fully stated in the opinion. The appellant in its petition for a rehearing so confidently insists that the court in its decision departed from the settled adjudications upon the questions discussed that we have re-examined the authorities with great care, and arrived at the conclusion that our decision is not only not against the weight of authority, by is fully sustained by it. The relation sustained by mortgagees to each other and the mortgagor, in regard to the payment oi taxes on the mortgaged property, is thus stated by Mr. Justice Cooley in Insurance Co. v. Bulte, 45 Mich. 113, 7 N. W. 707: “It certainly cannot be said that the second mortgagee owes any duty to the first mortgagee to protect his lien as against tax sales. Neither, on the other hand, does the first mortgagee owe any such duty to the second mortgagee or to the owner. To the state each one of the three may be said to owe the duty to pay the taxes, and the state will sell the interest of all, .if none of the three shall pay. As between themselves, the primary duty is upon the mortgagor; but, if he makes default, either of the mortgagees may pay, and .one of the two must do so, or the