Wood v. Schwartz , 212 Iowa 462 ( 1931 )

[1] The real estate in controversy is Lot 14, Wagon Works' addition to Shenandoah, Iowa. On September 15th, 1909, John W. Schwartz and his wife, Nancy, executed unto Jeremiah Tyler their promissory note for $450.00, and to secure the payment of the same, executed a mortgage upon the aforesaid real estate. The property in the note has been transferred to the plaintiff by indorsement and the mortgage duly assigned. The amount due upon the note at the time of trial was $812.95, for which amount judgment was rendered in favor of the plaintiff against the defendant, Nancy Schwartz. The plaintiff also prayed for the foreclosure of the mortgage, which requested relief was denied.

On March 14th, 1910, John W. Schwartz and George Middaugh entered into a written contract for the sale of said real estate by the former to the latter. The wife, Nancy Schwartz, did not sign said contract. It provides, in substance, that $50.00 is paid in cash, and that the remainder of the consideration, with interest, was to be paid in monthly installments at the First National Bank. It further provides that the purchaser, Middaugh, is "to promptly pay all taxes, assessments or impositions that may legally become a lien upon said land subsequent to the date of this contract." It further provides, that, when the payments as therein specified have been made, time being the essence of the contract, the vendor, Schwartz, shall convey to the vendee, Middaugh, the aforesaid real estate by good and sufficient warranty deed. Middaugh went into possession of the real estate under this contract and retained the same until the 1st day of November, 1926, although he was delinquent in payments required by the contract. In February, 1912, John W. Schwartz and his wife removed from Iowa to the State of Utah, where they resided until the 13th day of July, 1922, when John W. Schwartz died intestate, leaving Nancy Schwartz as his surviving widow and a son and three daughters as his sole heirs-at-law. Said heirs and their respective spouses are made parties defendant in this cause of action, but they have defaulted. There has been no administration upon the John W. Schwartz estate.

In December, 1921, the aforesaid real estate was sold at the annual tax sale to J.F. Redfield, for the taxes due thereon for the year 1920, and a certificate of said sale was issued to him. J.F. Redfield died intestate December 2d 1924, leaving Lucy F. Redfield as his surviving widow, and his son, Duane Redfield, as his sole heir-at-law. On July 16th, 1925, a tax deed was executed to the said Lucy F. Redfield and Duane Redfield. There is no question raised as to the regularity or legality of the proceedings leading up to the execution and delivery of the tax deed, and that the Redfields acquired title thereunder is conceded.

At all times after the execution of the contract between Schwartz and Middaugh, the latter was in possession of the real estate until November 1st, 1926, when the Redfields, having demanded from him the payment of rent which he refused, served notice upon him to quit the premises, and he vacated the same.

On December 21st, 1926, more than seventeen months after the Redfields received the tax deed, they, for the consideration of $276.69, approximately the amount with interest and costs which they had invested in the property, conveyed the same to Nancy Schwartz, by a good and sufficient deed of conveyance.

On December 22d 1926, Nancy Schwartz borrowed from the defendant, Home Building and Loan Association, the sum of $600.00, and executed unto said defendant her note or bond therefor, and to secure the payment thereof, executed unto said Association a mortgage upon the real estate.

The trial court held that the sale and conveyance of the real estate by the Redfields to Nancy Schwartz was a good faith transaction, was not a redemption of the real estate from the tax sale and that the deed from the Redfields transferred the Title to the real estate to Nancy Schwartz in fee simple, free and clear of any lien or encumbrance thereon of plaintiff's mortgage; that the plaintiff is not entitled to a foreclosure of her mortgage; that the mortgage of the defendant, Home Building and Loan Association is a first mortgage lien against the real estate; that the plaintiff is only entitled to a judgment against the defendant, Nancy Schwartz, for the amount due upon the promissory note. The court rendered judgment and decree accordingly, from which the plaintiff has appealed.

It is the appellant's contention that the transaction between Nancy Schwartz and the Redfields amounted only to a payment of the tax, or a redemption from the tax sale, and that the lien of her mortgage has not been extinguished. The validity of the tax deed executed by the County Treasurer to the Redfields is in no way questioned. The title of the Redfields, acquired by reason of the execution of the tax deed is not derivative, but the same constitutes a new title in the nature of an independent grant from the sovereign. See Petersborough Savings Bank v. Des Moines Savings Bank, 110 Iowa 519; Crum v. Cotting, 22 Iowa 411; Section 7286, Code, 1927. In Crum v. Cotting, 22 Iowa 411, at 420, referring to the title of one holding a tax deed, it is said:

"That is, that the tax title is held, not under or through the previous conveyances, but adverse to them. It is not incumbered by any claims or equities against the former owner, nor is it clothed with any rights or equities held by him as against third persons. The ``right, title, interest and estate of the former owner,' mentioned in the statute (now Section 7286, Code, 1927), which is vested by the deed in the purchaser, can only be the right, title, interest and estate in the land, and not equities in favor of or against the former owner, growing out of his being the ``former owner.'"

The title of the Redfields was an indefeasible title, good as against the lien of plaintiff's mortgage, and good as against the whole world. It is an axiomatic truth that one can convey as good a title as he holds. Therefore, the title acquired by Nancy Schwartz from the Redfields must prevail, unless it be, that, because of some equitable principle, the transaction between her and the Redfields re-establishes the lien of the plaintiff as between her and the plaintiff.

The appellant contends that the contractual obligations of the mortgage made it the duty of Nancy Schwartz to pay these taxes, and she cites a line of our previous cases in which we have held, that where one is under a duty to the party against whom the title is asserted to pay the taxes, he cannot be allowed to prevail, although his title was procured from a stranger who obtained the tax deed. The appellant relies upon Dayton v. Rice,47 Iowa 429; Blumenthal Brothers and Company v. Culver, 116 Iowa 326; Porter v. Lafferty, 33 Iowa 254; Cowdry v. Cuthbert, 71 Iowa 733; Olleman v. Kelgore, 52 Iowa 38; First Congregational Church of Cedar Rapids v. Terry, 130 Iowa 513; Crawford v. Meis,123 Iowa 610. In Dayton v. Rice, 47 Iowa 429, the plaintiff held a mortgage on real estate given by Rice. Because of the failure of Rice, the mortgagor, to pay the taxes, the property was sold at tax sale, and in due time a tax deed issued to a stranger to the title. The mortgagor then procured a deed to be executed by the tax deed holder to Rice's son. The son stood in no better position than did Rice — in fact, held it for Rice. The court held that under such situation, the title procured by the mortgagor would not be allowed to prevail as against the mortgagee, saying:

"As between W.S. Rice, the mortgagor, and plaintiff, the mortgagee, the primary duty of paying this tax rested upon the mortgagor. He remained in possession of the property, and it was his duty to keep the taxes paid. So long as the relation of mortgagor and mortgagee continued, this obligation rested upon the mortgagor. * * * The duty of paying the taxes thus resting upon the mortgagor, he could not set up a title having its origin in a failure to perform this duty, as against the mortgagee."

The same reasoning was applied by the court in the determination of Blumenthal Brothers and Company v. Culver,116 Iowa 326. In Porter v. Lafferty, 33 Iowa 254, the Odems, the owners of the land, mortgaged the property to Collins, the mortgage containing covenants of warranty. Later, the Odems sold the property to defendants, who agreed to pay the mortgage as part of the consideration. The mortgage was not paid, was foreclosed and a sheriff's deed executed. The land was sold at tax sale for taxes due prior to the time of the execution of the mortgage and tax deed issued to a stranger to the title. The defendants then obtained a deed of conveyance from the tax deed holder. It was held, that the defendant's title would not be allowed to prevail as against the title held under the sheriff's deed; that, as between the mortgagee and the mortgagors, the Odems, the latter were under obligation to pay the taxes, and that the defendants, by their purchase from the Odems, with full knowledge of the conditions imposed upon their grantors, were substituted in their place. In Cowdry v. Cuthbert, 71 Iowa 733, the court held to the same effect. In Olleman v. Kelgore, 52 Iowa 38, First Congregational Church of Cedar Rapids v. Terry,130 Iowa 513, and that portion of Crawford v. Meis, 123 Iowa 610, which is relied upon by the appellant, the party procuring title from the holder of the tax deed was either the owner of, or procured the title for the owner of a life estate. The remainder was owned by other parties. It was held in said cases, that, since the owner of the life estate at all times owed the duty to the remaindermen to pay the taxes, the title thus procured could not be allowed to prevail as against the remaindermen. The instant case is clearly distinguishable from the foregoing cases relied upon by the appellant.

The other cases, relied upon by the appellant and cited in her brief, are cases where a lien holder or one having such interest in the property as would give him a right to redeem from the tax sale, bought the property at tax sale or procured an assignment of the certificate of tax sale before the tax deed was executed, in which cases it was held that the transaction amounted to a redemption. It will be noted from this latter line of cases, that the party asserting title through the tax deed, did not obtain title from a stranger who had previously procured a tax deed and whose title was good as against the world, and therefore, they are not applicable to the situation or controlling in the solution of the proposition which is before us for determination.

The pertinent question in the instant case is, Did Nancy Schwartz owe the mortgagee any duty to pay the taxes in question? The appellant relies upon the provisions of the mortgage, which contains the following provision:

"And we warrant the title to the same (Real estate in question) against all persons whomsoever and waive all right of dower and homestead therein."

It must be borne in mind, that the mortgage was executed in 1909 and the taxes for which the property was sold were those for the year 1920. The non-payment of said taxes did not constitute a breach of the warranty of title contained in the mortgage. The mortgage also contains the following provision:

"It is agreed, however, that the said mortgagor * * * shall pay all taxes on said mortgaged property," etc. (Writer's italics.)

[2] It will be noted, that it was only the "mortgagor" who agreed to pay the taxes. John W. Schwartz, the husband of Nancy Schwartz, was the mortgagor. A mortgagor is one who holds title to the mortgaged premises. See White v. Rittenmyer, 30 Iowa 268. In the cited case it is declared: "A mortgagor is a freeholder of the mortgaged estate."

Therefore, in accordance with our pronouncement in Dayton v. Rice, 47 Iowa 429, and other similar cases, it was John W. Schwartz who was the mortgagor and owed the duty to pay the taxes.

[3] But the appellant contends that by the mortgage itself, Nancy Schwartz agreed to pay these taxes. According to the instrument, this duty rested upon the "mortgagor." Our statute, Section 10052, Code, 1927, provides:

"Covenants — spouse not bound. Where either the husband or wife joins in a conveyance of real estate owned by the other, the husband or wife so joining shall not be bound by the covenants of such conveyance, unless it is expressly so stated on the face thereof."

Nancy Schwartz did not, by any provision of the mortgage, agree to pay the taxes. A mortgage is a conveyance within the meaning of the aforesaid statutory provision. Section 10084, Code, 1927, is entitled "Forms of conveyance," and said section provides:

"The following or other equivalent forms of conveyance, varied to suit circumstances, are sufficient for the purposes herein contemplated:

"1. For a Quitclaim Deed. * * *

"2. For a Deed in Fee Simple Without Warranty. * * *

"3. For a Deed in Fee with Warranty. * * *

"4. For a Mortgage.

"The same as deed of conveyance, adding the following: ``To be void upon condition that I pay', etc." (Writer's italics)

It is quite apparent from the foregoing, that Nancy Schwartz is not the mortgagor and, that, by reason of the aforesaid quoted statutory provisions, she was under no duty — contractual or otherwise — to the mortgagee to pay the taxes. Under such circumstances, none of the cases cited by the appellant and hereinbefore referred to, prohibit her from acquiring title from the holder of a tax deed whose title was good as against the world, and asserting it as against the mortgagee. While she may have had such interest as, that she had the right or privilege to redeem, there was no duty resting upon her, as between her and the mortgagee, to make the redemption. There is a vast difference between duty and right or privilege. The mortgagee had the same right of redemption. Nancy Schwartz did not owe the tax — she was not the owner of the property. As between the Schwartzes and the mortgagee, John W. Schwartz owed the taxes, but because of Middaugh's equitable interest under the contract for the purchase of the property and his agreement to pay the same, as between him and Schwartz, Middaugh owed the taxes. At no time material to this controversy, was Nancy Schwartz in possession of the property. The possession of the property, at all times material to the controversy, was held by Middaugh under his contract with John W. Schwartz.

It must be borne in mind, that at all times after March 14th, 1910, until after the execution of the tax deed to the Redfields, Middaugh was in possession of the property under a valid and enforceable contract of sale as between him and John W. Schwartz. Schwartz was the vendor and Middaugh the vendee. The contract could have been foreclosed under the provisions of Sections 12382 and 12383, Code, 1927. For said purpose, Middaugh was the mortgagor and Schwartz the mortgagee. In Cowdry v. Cuthbert, 71 Iowa 733, the court declared:

"Under the contract the plaintiff and Cuthbert occupied the position of vendor and vendee. The former held the legal, and the latter the equitable title. We also incline to think they should be regarded as mortgagor and mortgagee (Code, Sec. 3329) (now Sec. 12382, Code, 1927) the plaintiff being the mortgagee, and Cuthbert the mortgagor."

[4] It is well settled by our previous cases, that under a contract such as the one between Schwartz and Middaugh, Middaugh held the equitable title and Schwartz retained the legal title to the real estate as security for the payment of the purchase price. Middaugh held an equitable title in real estate which would descend to his heirs, but Schwartz, at the time of his death, had only personal property, which would pass to his personal representatives. See Cumming v. First National Bank of Sigourney, 199 Iowa, 667; In re Estate of Miller, 142 Iowa 563; In re Estate of Bernhard, 134 Iowa 603; Baldwin v. Thompson,15 Iowa 504; Woodward v. Dean, 46 Iowa 499. In In re Estate of Miller, 142 Iowa 563, at 566, we said:

"It has been held repeatedly by this court that when a landowner enters into a contract of sale whereby the purchaser agrees to buy, and the owner to sell, and whereby the vendor retains the legal title until the purchase money or some part thereof be paid, the ownership of the real estate, as such, passes to the purchaser, and that from such time forth the vendor holds the legal title as security for a debt and as trustee for the purchaser. The interest acquired by the vendee is ``land,' and the right and interest conferred by the contract upon the vendor is ``personal property.' In case of the death of the vendee, his interest in the land would descend to his heirs. In case of the death of the vendor, his interest would pass as personal estate to his administrator. A judgment against the vendee would become a lien on the land, inferior, of course, to the rights of the vendor. A judgment against the vendor would not become a lien upon the land, nor could an execution thereunder be made by levy and sale of the land. Baldwin v. Thompson, 15 Iowa 504; Woodward v. Dean, 46 Iowa 499."

There has been no administration of the estate of John W. Schwartz; the period in which administration could have been brought had not expired at the time of the execution of the tax deed, nor at the time of the execution of the deed from the Redfields to Nancy Schwartz; administration upon the Schwartz estate could have been begun at any time within five years from the time his death was known. See Section 11891, Code, 1927. Since administration was not granted, those entitled by inheritance to the personal property and choses in action of John W. Schwartz at the time material to this controversy, had no title to his contractual rights and interests under his contract with Middaugh. See Haynes v. Harris, 33 Iowa 516; Baird v. Brooks, 65 Iowa 40; Stahl v. Brown, Admr. 72 Iowa 720; Richie v. Barnes, 114 Iowa 67. The most that can be said is, that the interest which those having a right by inheritance in the personalty of John W. Schwartz, deceased, had, at the time in question, was a contingent right depending upon the solvency of his estate.

The appellant pleads that, on the death of John W. Schwartz, the said Nancy Schwartz became the owner of an undivided one third of said real estate, and that his four children made parties defendant, each became the owner of an undivided one sixth thereof, but that, if the court should find that the said John W. Schwartz prior to his death, had sold said real estate on contract but had retained the legal title to secure the payment of the remaining purchase money, then the widow and children above referred to, became the owners of a lien on said real estate which was subject and inferior to the lien of this plaintiff, and that they owned said lien in the proportions above set out.

[5] The appellant takes no definite position as to whether Nancy Schwartz was a tenant in common of the real estate, or whether she was jointly interested in the interests of John W. Schwartz in the contract between Schwartz and Middaugh, nor do we find it necessary to determine what her exact interests were. Assuming, without deciding, that she was a tenant in common of the real estate, our previous cases are determinative as against the appellant. See Alexander v. Sully, 50 Iowa 192; Crawford v. Meis, 123 Iowa 610. It must be borne in mind, that at no time material to the controversy was Nancy Schwartz in possession of the real estate. Middaugh held the possession of the same until after the execution of the tax deed, when the Redfields served notice upon him to quit, and thereupon he vacated the premises. Middaugh, as a witness, testifies: "I went into possession of that property in March, 1910, and continued until November 1st, 1926. I made no claim to the property after the issuance of the tax deed to the Redfields." In Alexander v. Sully, 50 Iowa 192, the property was originally owned by Hugh Alexander and Thomas Alexander. Hugh Alexander died in 1857, and the plaintiff is his widow. The land was sold for taxes and a tax deed executed to Evans, a stranger to the title, who held the same two years and two months and then conveyed the property to the plaintiff. The defendant claimed title to one half of the property through mesne conveyances from Thomas Alexander. The court in passing upon the claims of the parties made the following pronouncement:

"No objection is made to the validity of the tax deed under which the plaintiff claims; but it is urged at the time she obtained title thereunder she was a tenant in common or joint owner of the premises with the defendant, or those under whom he claims, and that her purchase of the superior title enured to the benefit of the defendant upon his paying his pro rata share of what it cost. * * * It has been held that a tenant in common or joint owner cannot, by a purchase at a tax sale and a conveyance thereunder, oust his co-tenant, but that such purchase is presumed to have been made for the benefit of both. Weare v. Van Meter, 42 Iowa 128; Fallon v. Chidester, 46 Iowa 588. The question for determination in the case at bar is materially different from this. Here the superior title was vested in a stranger, and had been for two years, and the question is whether one of the former joint owners can purchase such title for his own exclusive benefit, or whether, when the tax title accrued and became vested in Evans, the joint ownership previously existing was not thereby dissolved. That such would be the case is intimated, if not decided, in Page v. Webster, 8 Mich., 263. The chancellor concedes, in Van Horne v. Fonda, 5 John. Ch., 388, that cases may exist where one tenant in common may purchase in an outstanding title for his own exclusive benefit; and the true rule seems to be, as there announced, that where the tenants orowners are in possession under an imperfect title one cannot purchase an outstanding title and appropriate the whole to himself and thus oust the other. See, also, Venable v. Beauchamp, 3 Dana, 321. But this principle does not extend to a tenant incommon after eviction. Coleman v. Coleman, 3 Dana, 398. * * * If the superior title did not in and of itself amount to an ouster and eviction, we think the principle, under the circumstances, must be the same as if it did have that effect. * * * Whatever title they (the joint owners) previously had was merged in the superior title, and either could purchase for his own exclusive benefit as well as a stranger to the previous title could." (Writer's italics.)

It is apparent that if Nancy Schwartz was a tenant in common, she was such with her children, or with Middaugh, and none of said parties are making any contention as to the rights of Nancy Schwartz to the property. In any event, the appellant was not, and could not be a tenant in common with Nancy Schwartz. Assuming, without deciding, that she was a tenant in common with her children, then none of the tenants in common were at the time material to the controversy, in possession of the property. Also assuming, without deciding, that she was a tenant in common with Middaugh, she at no time material to the controversy was in possession of the property and Middaugh has vacated the same and makes no contention as against her rights therein. It will be noted that in the cited case, Evans, the holder of the tax deed, conveyed the property to the plaintiff-widow twenty-six months after obtaining the tax deed, while in the instant case, the Redfields conveyed the property to Nancy Schwartz seventeen months after obtaining the tax deed. In 37 Cyc. 1349, 1350, the author aptly states:

"* * * and if the purchase at the tax-sale is made by an entire stranger, and the title is held by him until it has become fixed and mature, either of the former co-tenants may then buy from him without restoring the relation of co-tenancy or being required to hold in trust for the others, provided this is not done in pursuance of an arrangement or scheme to use the stranger as a cover and oust the co-tenants."

In Crawford v. Meis, 123 Iowa 610, hereinbefore referred to, Eliza Crawford was the owner of a life estate in the property in question; the remainder was owned by six of her children. The property was sold at tax sale and a tax deed in due form executed to a stranger; this stranger executed a deed unto two of the remaindermen; their title, derived through their deed from the holder of the tax deed, was held to prevail over the remaining co-tenants in remainder. It is to be noted that the life tenant was in possession at the time material to the controversy — that the remaindermen were not in possession. The court, in passing upon the proposition, referred to Alexander v. Sully, 50 Iowa 192, hereinbefore cited, declaring:

"We are content to follow the doctrine of the case cited, and, giving the same application to the case before us it must be said that there was no restriction upon the right of the grantees of David Crawford (the holder of the tax deed) to acquire and hold title for their own benefit."

It is quite apparent from the foregoing, that, even if it be true that Nancy Schwartz was a tenant in common, under the record in this case the title obtained by her from one whose title was good as against the world is equally indefeasible.

If Nancy Schwartz had a contingent interest in the rights or interests in the Schwartz-Middaugh contract, this in no way increased the duties which she owed to the appellant under the mortgage executed by her and her husband, and we have already ascertained that site was under no duty as between her and the appellant to pay the taxes in question. If she had any contingent interest in the Schwartz-Middaugh contract, then clearly she stood in the relationship as one of the mortgagees and Middaugh as the mortgagor. It must be borne in mind, that Nancy Schwartz did not, herself, buy this property at tax sale, nor obtain an assignment of the certificate of tax sale, but she obtained a deed for the property from one who held a tax deed whose title is in the nature of an independent grant from the sovereign, and whose title was good as against the world. At this point, we refer to Safe Deposit Trust Company v. Wickhem (S. Dak.), 62 Am. St. Rep. 873, where it is held, that, if real property is subject to both a first and second mortgage and sold for delinquent taxes to a stranger who obtains a tax deed, who in turn, without collusion, conveys the property to the junior mortgagee, said junior mortgagee can assert the title so obtained as against the first mortgagee. The junior mortgagee in that case, was the county treasurer; there was no collusion as between him and the party obtaining the tax deed; the trial court found for the junior mortgagee. In passing upon the proposition, the court said:

"Obviously, a junior mortgagee cannot, by purchase at a tax sale, acquire a title which shall defeat the lien of a senior encumbrancer; but appellant and respondent had ceased to be encumbrancers, as to one another, and had become strangers by neglecting to pay the taxes, and by permitting an absolute and fee simple title to ripen and become fixed in Dillon Preston (the holders of the tax deed) before they sold and conveyed the premises, for a valuable consideration, to respondent (junior mortgagee) * * *. A reversal of this case would be equivalent to a holding that the sale of land for delinquent taxes by a county treasurer, who is individually a junior mortgagee whose lien has been lost, and the execution of a tax deed thereto, in his official capacity, to the holder of the certificate after his title has fully matured and become absolutely vested, is, in the absence of any collusion, sufficient in law to incapacitate such treasurer and junior mortgagee from ever acquiring, as against a senior mortgagee, title thereto by deed from a stranger."

The court also quotes from Justice Cooley in Connecticut Mut. Life Ins. Co. v. Bulte, 45 Mich. 113, the following:

"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 thestate each one of the three may be said to owe the duty to paythe taxes; and the state will sell the interest of all, if noneof the three shall pay. As between themselves, the primary dutyis upon the mortgagor; but, if he makes default, either of the mortgagees may pay, and one of the two must do so, or the land will be sold and his lien extinguished." (Writer's italics.)

The court refers to a Kansas case, saying:

"But we are not inclined to go to the full extent of the Kansas case, and adhere to our former decision that had Wickhem (the second mortgagee) directly or indirectly, purchased the property at the tax sale, or purchased or contracted for the tax certificate, before his mortgaged lien was extinguished, he would have held his tax title subject to plaintiff's equity. The evidence, however, was undisputed that Wickhem did not, directly nor indirectly, purchase the property at the tax sale, or make any contract in reference thereto, until the tax title had vested in Dillon Preston, and the mortgage liens were extinguished."

The trial court found, from the evidence, that there was no agreement or collusion between the Redfields and Nancy Schwartz, that they were taking said tax deed for her benefit or any of the other owners of said real estate. We have carefully read the record and on this proposition agree with the trial court. It is true, that the consideration is approximately the amount, with interest and costs that the Redfields had invested in the property. J.F. Redfield, as well as any other person, had the legal right to buy this property at tax sale in 1921. His widow and son, after his death, had the legal right to obtain a tax deed by following the law in such cases made and provided. The validity of the tax deed in their hands is not questioned. It is true, that Duane Redfield testified that in a conversation with Elbert Read, held about the time the tax deed was executed, in which Read purported to be acting for the Schwartzes: "I believe I told Mr. Read I would turn it (the property) back if they paid the taxes. I think that is correct." He further testified:

"From the time we got the tax deed until we conveyed to Mrs. Schwartz, we claimed to be the absolute owners of the property. Q. And you had no agreement to turn it back? A. Only what I told you previous to taking the tax deed. Q. I will ask you to state if it is not a fact that that conversation just had to do with redeeming the property prior to the time you got the tax deed? A. Yes, sir. Q. And after you took the deed it was all off? A. Yes, sir."

The Redfields, as owners of the property, took the necessary steps to procure and did procure the possession of the same from Middaugh. The deed to Nancy Schwartz was not executed forthwith. No arrangement was finally perfected as between the Redfields and Nancy Schwartz until seventeen months after the date of the execution of the tax deed. The Redfields acted in accordance with the law and received an indefeasible title. The amount which they agreed to lake for their property was a matter of their own concern. There is nothing in the record to show any bad faith on the part of the Redfields or Nancy Schwartz. We are abidingly satisfied with the finding of the trial court on this proposition of fact.

We have considered all propositions relied upon by the appellant for a reversal. As has been previously pointed out, Nancy Schwartz was not the mortgagor and owed the appellant no duty to pay the taxes in question; that duty rested upon others. The vesting of the title under the tax deed in the Redfields, operated as an ouster and destruction of the interest of the plaintiff and the interests of all parties concerned, whatever they were. Since the Redfields obtained an indefeasible title, it is apparent from the record in this case, that Nancy Schwartz, claiming through the Redfields, obtained a title equally as good. It is also apparent that, as held by the trial court, the mortgagee, Home Building Loan Association, claiming through Nancy Schwartz, as mortgagor, has a valid lien against the real estate. The judgment of the trial court is correct, and the same is hereby affirmed. — Affirmed.

FAVILLE, C.J., and EVANS, STEVENS, and GRIMM, JJ., concur.

MORLING, De GRAFF, ALBERT and KINDIG, JJ., dissent.