Eastman v. Thayer

We are not asked to revise our conclusions on the points considered in the opinion, but to pass upon other matters to which our attention has been called by the plaintiffs' counsel for the first time in the argument of the motion.

The plaintiffs now put their case, as to Jackman and Aldrich, on the ground, that having a good bill of foreclosure against Thayer, it was proper to join Jackman as senior mortgagee for the purpose of redeeming the land from his mortgage, and to join Aldrich, as standing in Thayer's shoes, through his purchase at the tax sale, and therefore owning the equity of redemption only in the mortgaged premises.

Nothing new is urged relative to Jackman; and as to him the bill must therefore be taken as resting exclusively upon an alleged right to redeem his mortgage. To entitle themselves to such right, the plaintiffs suggest that they desire an amendment to the bill averring their readiness to pay the mortgage; but we think no case for equitable aid would then be made.

The statute provided that the party who has the right to redeem a mortgage may demand from the mortgagee an account of all demands secured thereby; and if no account, or a false account, is rendered, he may apply to the court to have the amount due ascertained after deducting rents and profits received. G. L., c. 136, ss. 8, 9. The plaintiffs' case, then, does not come within the statute, nor does it disclose any ground for equitable relief, because it is obvious that it would be gross injustice to subject Jackman to the annoyance and expense of legal proceedings under the pretext of compelling him to do what he has never even been asked to do. And, therefore, if the court has the power, it will not exercise it. and afford relief in a case like this where the party seeking it has no equity, and has wholly failed to comply with plain statute provisions which furnish an adequate and inexpensive remedy. See Brown v. Snell, 46 Me. 490, which is directly in point; — but see, also, Hall v. Hall, 46 N.H. 240, 242.

Nor can the bill be maintained against Aldrich on the ground that he took Thayer's interest only by the tax deed. The error in the argument for the plaintiffs on this point arises from a misconception of the nature and effect of tax liens, as distinguished from attachment and other liens, which attach simply to the debtor's interest in the property, whereas, by the express terms of the statute (G. L., c. 58, s. 13), liens for taxes attach to the land itself, and all prior liens and incumbrances are devested. Parker v. Baxter, 2 Gray 185; Dunlap v. Gallatin Co., 15 Ill. 7; Atkins v. Hinman, 2 Gilm. (Ill.) 449; Jarvis v. Peck, 19 Wis. *74. A tax title consequently breaks up all previous titles; and "no title can pass by a collector's deed under the statute, but an estate in fee simple." Smith v. Messer, 17 N.H. 420, 428. Hence, if Aldrich acquired any title by his deed, it was an estate in fee simple to the land in controversy, devested of all other liens thereon or titles thereto; and so it follows that he cannot be made a party to a bill or any other proceeding for the foreclosure of the plaintiffs' mortgage on the ground upon which they rely.

Motion denied.

STANLEY, J., did not sit: the others concurred.