Boyd v. Jensen

Deasy, J.

On exceptions by defendant to ruling of single Justice who heard the case without a jury.

A real estate mortgage given by the defendant to Charles H. Boyd in 1913 was in 1920 foreclosed by the plaintiff as executrix of the mortgagee. The right of redemption having expired the plaintiff brings this real action to recover the property.

The defendant sets up in defense a tax deed to one William Hebert, and a deed from Hebert to himself. It is conceded that the tax was duly assessed, the property properly advertised and sold and the sale therefore valid. The tax for non-payment of which the sale was had was assessed in 1914. This the defendant was under obligation to pay. His mortgage contained an agreement binding him to pay this tax. He now seeks to take advantage of his failure to keep his contract.

The law applicable to this situation is thus stated by the Maine court in Dunn v. Snell, 74 Maine, 24: “One whose duty it is to pay the taxes upon land to prevent a sale of the same, cannot acquire a title by such sale and conveyance as against the real owner, but the vendee’s deed will be treated as void from the beginning.” See also Varney v. Stevens, 22 Maine, 331 and Burgess v. Robinson, 95 Maine, 127.

In other jurisdictions many other cases to the same effect are found. It is unnecessary to cite them. Several such authorities are collated in a note to McAlpin v. Zitser, (Ill.), 10 N. E., 902, which thus felicitously states the principle: “One who is under a legal or moral obligation to pay a tax is precluded from acquiring a valid title based upon its non-payment.”

The case discloses that the property was also sold for the tax of 1913 and bought by one Theodore Kerr. This is immaterial. Hebert acquired a title which was good against all persons including Kerr. Property acquired by tax deed is subject to taxation precisely as is property acquired in any other way. Hebert’s title was complete, but the defendant having acquired it is estopped to set it up.

There is no merit in the defendant’s contention that the plaintiff’s action is barred by laches. Failure on the part of the plaintiff to pay a tax which the defendant is under legal obligation to pay is not laches that the defendant can take advantage of.

Exceptions overruled.