Stewart v. Brooks, 28 Mo. 62

Stewart v. Brooks

28 Mo. 62 | Mo. | 1859

■Scott, Judge,

delivered the opinion of tl^couxt

The act of 1847 amendatory of an act entitled “ An act to provide for levying, assessing and collecting the revenue,” approved March 27,1847 (Sess. Acts, 1847, p. 117), repeals all acts and parts of acts inconsistent therewith. The provisions of the act of 1847 in relation to the redemption of lands sold for taxes differ in some respects from those contained in the act of 1845 to provide for levying, assessing and collecting the revenue. (R. C. 1845, p. 947.) Where there is such conflict the prior law must give way. The act of 1847 on the subject of the redemption of lands is complete within itself and does not need the aid of the act of 1845. The expression of one thing is the exclusion of another, and the 31st section of the act of 1847, by prescribing the terms on which minors might redeem their lands when they had been sold for the taxes, necessarily excluded any term or condition not therein contained.

In proceeding on the petition to redeem provided for by the thirty-second section of the act of 1847, the circuit courts are directed to be governed “ by the principles and practices of courts of chancery.” It is a well-settled rule of equity that he who wants equity must do equity; and upon this rule if a mortgagee has two debts due from the same debtor, *64one' of which is secured by a mortgage and the other is not, the mortgagor will not be permitted to redeem without first satisfying both debts. A mortgage given as a counter security to a joint obligor, shall stand as a security for a second joint bond entered into by the ,same persons afterwards, without any agreement for that purpose, and the heir shall not redeem without saving harmless as to both. (FonbfEq. book 3, chap. 1, § 9.) This proceeding affirms the validity of the sale made to the defendants. If the sale was valid, he was then rightfully the owner of the land and was bound to pay the taxes assessed upon it, which the law made a lien, and it would be a great hardship if, while the validity of the sale is affirmed, the purchaser should be compelled to yield up his purchase without receiving the taxes which he had been obliged to pay and for which the plaintiffs themselves would have been liable had not their land been sold. This is not like the case where land has been sold for taxes and the original owner sues in ejectment and recovers it. Such a proceeding disaffirms the legality of the sale, and the judgment is based on its nullity for the want of conformity to law in the proceedings. The purchaser acquiring no title by his purchase, he would pay the taxes without any right, and is in the situation of any other person who voluntarily and without any authority pays money for another. The fact that the plaintiffs were minors can not affect the question. The land of minors is subject to taxation as well as that of adults. As the defendant has lawfully paid the taxes which the plaintiffs would have been compelled to pay had they remained the owners, “ the principles and practices of a court of chancery” forbid that they should be allowed to redeem without first indemnifying the defendant for the legal charges to which he has been subjected by reason of his purchase.

We do not find any provision in the act of 1847 which would warrant us in allowing more than the legal rate of interest on the several amounts paid for taxes, to be computed from the times of payment respectively. This of course is to be understood of the taxes paid after the purchase. It would *65be an arbitrary construction of the thirty-first section of the act to hold it to apply only to taxes paid before the date.of the deed. We consider that section as only applying to the taxes for which the land was sold. This view seems to be confirmed by the twenty-third section of the act of 1847, which, in authorizing a redemption of land sold for taxes, makes no provision for the refunding of taxes paid by the purchaser subsequently to the sale. The taxes paid after the sale and before the execution of the deed would not be stated in it, and there is no reason why those paid after the date of the deed should not be refunded as well as those paid after the sale and before its execution. In fixing the date of the deed as the period from which the fifteen per cent, per an-num was to be calculated, it must have been intended that the deed would show the amount on which the penalty was given. The ground on which we base the right of the purchaser to the return of the taxes paid after the sale is the provision in the thirty-second section of the act, which requires the circuit courts, in proceedings of this nature, to be governed by “ the principles and practices of courts of chancery.”

Upon the whole, our opinion is, that the plaintiffs are entitled to redeem upon the payment of double the amount of taxes and costs incurred by the purchaser by reason of his purchase, with fifteen per cent, per annum thereon from the date of the deed, and by refunding the amount of taxes paid by the purchaser since the sale, with six per cent, interest thereon from the times of payment respectively.

Reversed and remanded;

Judge Richardson concurs. Judge Napton absent.