Jones v. Black

Opinion of the court by This case presents but one legal proposition. The issues arise upon a demurrer to the petition, which was sustained by the court below. The question presented is: Can a mortgagee acquire title to the mortgaged premises by his purchase of a tax certificate and obtaining the tax deed therefor so as to cut off the rights of the mortgagor in the premises?

The cases have been before the various courts in various forms, and, while a casual reading might indicate that there is some conflict in the authorities upon the proposition, yet, after a careful reading of the different statutes and the different cases as presented, the seeming conflict does not, in fact, exist.

Under the old rule, where the mortgagee held the legal title, he was held not to be able to acquire title through tax sale. The same rule applies to a mortgagee in possession. Under our statute, a mortgagee holds his mortgage as security for the debt only, and where there is no obligation in the contract on the part of the mortgagee to pay the taxes on the property, the authorities are uniform that he may acquire title through tax sale. In this case there was a provision in the mortgage that in case of failure on the part of the mortgagor to pay the taxes, the mortgagee should have the right to pay the same. This provision, however, simply reiterates the right which he would have had without any such provision being contained in the mortgage. The provision does not obligate him to pay the taxes, but it gives him the right to do so upon a failure of the mortgagor to pay. This right the mortgagee would have had without this condition, and it neither broadens nor limits the legal rights of the respective parties. Under the present law and the condition of the parties as they exist in this case, there is no relation of trust or confidence existing between them to preclude the mortgagee from becoming the purchaser at tax sale. The common law attributes of the mortgage have been wholly and entirely set aside. The mortgagee has a mere lien upon the property, but no title. His lien gives him no right of possession. His only remedy is by foreclosure. He is required to pay taxes upon his note and mortgage, and when he performs this obligation, it is all the law requires of him.

By loaning money to the mortgagor, the mortgagee does not covenant or promise to pay taxes upon the security given, but, on the contrary, the mortgagor is under obligations to pay the taxes, and it is his duty to protect the lien or security. To allow a mortgagor to refuse to pay taxes upon property which he has given to secure an indebtedness and, after the mortgagee has purchased the property at tax sale, to hold him as a trustee for the benefit of the mortgagor, would be to allow the mortgagor to take advantage of his own wrong. The mortgagee cannot be held liable as having any title in the land, as our statute negatives the idea of the title in a mortgagee. The fact that the mortgagee may pay the taxes and recover the same by foreclosure, does not make it obligatory upon him to do so, nor does the purchase at tax sale create any relation of trust and confidence between him and the mortgagor. "The principles in relation to dealings between trustee and cestui que trust, as adopted by the courts of equity do not apply. Dependence, and the duty of protection, are not involved in this relation, and they may deal subject only to the ordinary principles."

The authorities supporting this doctrine are: Waterson v. DeVoe, 18 Kan. 223; Williams v. Townsend, 31 N.Y. 415; Smith v.Louis, 20 Wis. 369; Walthall's Exrs. v. Rives, 34 Ala. 91;Harrison v. Roberts, 6 Fla. 711; Reimer v. Newell, 49 N.W. 865. Many other cases might be cited, but we deem these sufficient. It is plain that the sustaining of the demurrer to the petition by the court below was correct.

There being no error disclosed by the record, the judgment of the district court is affirmed.

Burford, C. J., who presided in the court below, not sitting; Burwell, J. and Garber J. dissenting; all the other Justices concurring.