98 F. 10 | 8th Cir. | 1899
after stating the case as above, delivered the opinion of the court.
The only question presented for our determination is whether the order for an interlocutory injunction was warranted by the aver-ments of the bill. Counsel for appellee, in argument and brief, disclaim any contention that there was any irregularity in the assessr ment of the property of the railroad company, and admit that the taxes for the year 1893, as well as for the year 1.894, were legally assessed, and never paid by the railroad. The bill in no way challenges ike regularity of the sale of the railroad property to Palmer, except that there was au attempt to segregate a part of the railroad track from the entire line, as well as from the franchise of the railroad company, and to sell the same substantially as real estate is sold under execution in the state of Colorado. The bill does not aver that the amount demanded by Whitehead as due him by virtue of his ownership of the certificate of purchase and subsequent payment was in excess of the amounts paid by him, with the accumulated statutory interest. There are no averments showing that the appellee, or any one else, prior to the institution of this suit, ever offered to refund to Whitehead the amount due him, or that the appellee was ready to pay the same to Whitehead as a condition to obtaining the relief sued for. The order for the interlocutory injunction appears to have been made without imposing any such condition upon the appellee. The serious contention presented by counsel for the appellee is that the sale of the track of the railroad situated in Jefferson county, segregated from the balance of the line and from the franchise of the com
The appellee, the complainant below, being the trustee in the mortgage referred to, represents the bondholders, who, according to the averments of the bill and exhibits filed therewith, are, to all intents and purposes, the owners of the railroad property. The burden of paying the taxes upon the property, therefore, rests upon them, and the consequences of nonpayment concern them alone. In other, words, the appellee, as representative of the bondholders, to all equitable intent and purpose, stands in the shoes of the railroad company. It was therefore the equitable duty of the appellee to attend to the payment of all taxes lawfully assessed against its property as and when due; and, notwithstanding any irregularities in subsequent proceedings looking to the enforcement of the state’s lien for such taxes, it remained the duty of the appellee to pay and satisfy all just and lawful taxes, with accrued charges, until such time as the duty should be performed. If this duty be neglected until the state or some of its municipalities are forced to resort to the process of law to enforce its performance, it is not apparent how the equitable obligation is thereby lessened. Accordingly, it is our opinion that the appellee cannot invoke the aid of a court of equity to relieve it from the consequences of some irregularity in proceedings rendered necessary by its default, without first doing equity by paying, or offering to pay, as a condition to the relief sought, the amount which it, or those it represents, justly and fairly owe. State Railroad Tax Cases, 92 U. S. 575, 23 L. Ed. 669; Bank v. Kimball, 103 U. S. 732, 26 L. Ed. 469; Chicago, B. & Q. R. Co. v. Board of Com’rs of Norton Co., 32 U. S. App. 227, 67 Fed. 413, 14 C. C. A. 458; Charlton v. Kelly, 24 Colo. 273, 50 Pac. 1042.
The general doctrine of the foregoing cases we do not understand to be seriously questioned by counsel for appellee. It is practically conceded, as we understand, that, if this was a proceeding against Jefferson county or any of its officers to restrain the collection of the tax, it could not be maintained without a precedent offer to pay the amount of tax justly due; but it is contended that Whitehead, the appellant, stands in a different attitude from that of the officers of the county; that he is a mere volunteer, and purchased the property, not because he had any personal interest to protect, but merely as and for an investment; that the taxes, by reason of the payments by Whitehead, have been fully paid to the county; and that neither the county nor its officers have any longer any interest in the matter, and accordingly that the injunction constitutes no interference with the collection of taxes.
It is further contended by counsel for appellee that the fact that the property of the railroad company is in the custody of the court, through its receiver, is of itself sufficient to secure an interlocutory injunction; and ibis, for the reason that the execution of the deed by the county treasurer would constitute, an unwarrantable interference with property in custodia legis. Counsel rely in support of this contention upon the cases of Clark v. McGhee, 31 C. C. A. 321, 87 Fed. 789. and In re Tyler, 149 U. S. 164, 13 Sup. Ct. 785, 37 L. Ed. 689. In the first of these cases it appears that, after the receiver bad taken possession of property, an assessment for taxes unassessed for previous years was made by the state authorities. The validity of this assessment was disputed by the receiver, and the court very properly held that, until its validity could he tried and determined, the hands of the executive officers of the state should be stayed. In the other case it appears that the state officers levied for the satisfaction of