Erie v. Piece of Land

Opinion bx Mr. Justice Linn, The City of Erie appeals from the dismissal of its petition for an order on the sheriff to sell, on its judgment for city taxes, certain real property clear of liens. The petition averred the judgment and that the city had fixed an upset price of $128,244.01 required to pay all taxes and municipal claims but that such a bid was not received when the property was offered by the sheriff. A rule was granted requiring respondents, parties interested in a mortgage on the property, to show cause why it should not be sold “freed and clear of their respective claims, mortgages, charges and estates” pursuant to the Act of May 16, 1923, P. L. 207, and supplements (53 PS section 2051). An answer was filed by Erie Elks Building Association, Bondholders Protective Committee, and Harry W. Mehl, trustee for mortgage bondholders. Among other things, they denied that the Act of May 16, 1923, P. L. 207, authorized the divestiture of the lien of respondents’ mortgage dated May 3, 1922, and recorded prior to the Act of 1923. They agree that the Municipal Tax Lien Act of 1901, P. L. 364, as amended, was, as respects this proceeding, in substance the same as the Act of 1923, but contend that it had been repealed by the Act of 1921, P. L. 1089, befoi'e the mortgage was recorded. Their position, shortly stated, is that as the mortgage became a lien after the Act of 1901 was repealed and before the Act of 1923 was passed, the Act of 1923 could not, constitutionally, be applied to divest the lien of their mortgage. The *323 learned court below accepted that view and dismissed tbe petition. We think there was error in two respects: (1) in holding that, as to city taxes, the Act of 1921, P. L. 1089, repealed the Act of June 4, 1901, P. L. 364, as amended; and (2) altogether apart from that conclusion, in holding that resort to the Act of 1923, P. L. 207, if necessary to sustain the proceeding, resulted in an impairment of the mortgage contract. First. The Act of June 4, 1901, P. L. 364, was said by Mitchell, C. J., in Haspel v. O’Brien, 218 Pa. 146, 149, 67 A. 123, to be “a revision and consolidation for clearness, certainty and convenience of all prior statutes on the subject, a partial codification to the purpose of which amendment or change was only incidental.” One of the subjects included in the Act was “city taxes.” That act was amended May 28, 1915, P. L. 599. Those acts provided (section 32 of the Act of 1901 and section 9 of the Act of 1915) for the discharge of the lien of a mortgage if necessary to collect the taxes in full. They were followed by the Act of 1921, P. L. 1089, which reenacted provisions for the sale of land for certain tax claims free of mortgage liens and repealed inconsistent legislation. This act, the learned court thought, repealed the Act of 1901 as to all tax liens instead of those specified in the repealing clause; as a result it was held that there was no legislation, when the mortgage was recorded, providing that its lien could be divested by a sale on a judgment for city taxes. That conclusion must be rejected. In section 1 of the Act of 1901, said to be repealed, it was provided “That the word ‘taxes,’ as used in this act, means any county, city, borough, township, school, bridge, road, or poor taxes.” The Court is now concerned with the words “city taxes” in that provision. It was also provided that “The words ‘tax claim,’ as used in this act, mean the claim filed to recover taxes.” “Tax claim” would then include a claim for “city” taxes. *324 As long as the •word “city” was not taken ont of the law by some repealing statute, “city” taxes remained subject to the act. We then, examine the scope of the repealing provision of the Act of 1921 to see whether the “city” tax provision of the Act of 1901 was repealed. Section 32, P. L. 1102, reads: “The act [of 1901] . . . and the several amendments and supplements thereto, so far as the same relate or apply to tax liens and tax claims are hereby repealed. ...” The taxes and tax claims, so referred to, are defined in section 1 of the repealing Act of 1921 at page 1089 as follows: “The word ‘taxes,’ as used in this act, means any county, bridge, road, borough, township, school, or poor taxes. The words ‘tax claims’ or ‘liens,’ as used in this act, mean the claim filed to recover taxes.” It will be noted that the word “city,” which is in the Act of 1901 and in the amendment of 1915, is omitted. We must read the words “tax liens” and “tax claims” as used in the repealing section in the light of the definition of the words “taxes,” “tax claims” or “liens” as defined in section 1 of the act, and when that is done it becomes clear that they do not comprehend city taxes because city taxes were omitted from the definitions given by the legislature in the enactment. The result must be that city taxes and the method of collecting them remain subject to the Act of 1901 as amended in 1915. The Act of 1923, P. L. 207, referred to above, repealed inconsistent legislation, but in substance reenacted section 9 of the Act of 1915 and expressly included city taxes. As there was no repeal, by the Act of 1921, of the provisions relating to city taxes in the Acts of 1901 and 1915, the Act of 1923 was a mere continuation of what had been the law all along. The rule is stated in Haspel v. O’Brien, 218 Pa. 146, at page 149, 67 A. 123 (1907), by Mitchell, C. J.: “‘Where a statute is repealed and its provisions are at the same time reenacted by the repealing act, the effect according to the great weight of authority, is that the earlier statute is not in *325 fact repealed, but its provisions continue in active operation, so that all tbe rights and liabilities incurred thereunder are preserved and may be enforced.’ This rule is particularly sound and applicable in the construction and interpretation of an act like that of 1901, which is a revision and consolidation for clearness, certainty and convenience of all the prior statutes on the subject, a partial codification to the purpose of which amendment or change was only incidental.” Second. We are equally clear that even if the Acts of 1901 and 1915 had not been in effect when the mortgage was recorded, the city would be entitled to the benefit of the Act of 1923 and that no impairment of the contract between the mortgagor and the mortgagee would result from the discharge of the lien of the mortgage if the mortgagee elects not to pay the taxes. The purpose of such legislation is to enable the government to collect its tax. For as long as ten years, taxes have remained unpaid on this mortgaged property. The double nature of a mortgage as an estate and as a security is familiar. By recording the mortgage, the mortgagee obtained a lien which had certain statutory preference. In providing for the collection of taxes, the Act of 1923, in section 31, P. L. 207, 221-222, 53 PS section 2051, provided what might be done in the future if, after an attempt to sell for taxes, the property could not be “sold for a sum sufficient to pay all taxes and municipal claims, together with the costs thereon.” After a tax claim had been filed a year, the city was authorized to present its petition stating that it had exposed the property to sheriff’s sale and had been unable to obtain a bid sufficient to pay the upset price in full. Thereafter, the court was authorized to grant a rule on all parties interested to show cause “why a decree should not be made that said property be sold, freed, and cleared of their respective claims, mortgages, charges, and estates” and provided that after hearing the court might order “that said property be sold at a subsequent sheriff’s sale day, *326 to be fixed by the court without further advertisement, clear of all claims, liens, mortgages, charges, and estates, to the highest bidder at such sale; and the proceeds realized therefrom shall be distributed in accordance with the priority of such claims; and the purchaser at such sale shall take, and forever thereafter have, an absolute title to the property sold, free, and discharged of all tax and municipal claims, liens, mortgages, charges, and estates of whatsoever kind, subject only to the right redemption as provided by law.” This procedure was followed in this case. That the mortgage was made and recorded before the act was passed, is no constitutional objection to the application of the Act of 1923. The statute applies to all mortgaged lands; the legislature had the power to tax the mortgagee’s interest in the land. The procedure enables the mortgagee to have his day in court and protect his lien by paying the tax if he does not wish to lose the lien; he has the alternative; the statute provides: “Any person interested may, at any time before the sale, pay the petitioner the whole of his claim, with interest and costs, whereupon the proceedings on petition shall at once determine.” There is no legal reason why the legislature should not require a mortgagee, who has had the protection of the government, to submit to the collection of the taxes out of the land against which they are assessed if his own debtor neglects to pay them. The procedure was prospective; that its application would operate on relations theretofore existing did not make the statute retroactive in any prohibited sense: compare City of Johnstown v. Dibert, 88 Pa. Superior Ct. 117, 120. The land had always been subject to taxation. If a mortgagee elects not to foreclose for default in payment of taxes on the land he holds as security, he does not, by his election, exempt his interest or estate in the land from taxation; no law gives him such right of exemption. When he secured his loan by taking the mortgage, he did so with knowledge that the land was. *327 and would continue to be, taxed. He will not be heard to say that because he had a lien under the recording acts, the government must go without its taxes. All his relations growing out of his contract with his debtor were subject to the implied condition that the taxes must be paid out of the land. There is therefore no impairment of his contract with the mortgagor. The subject has arisen in other jurisdictions as appears in this quotation from the opinion of Magruder, J., in People of Puerto Rico v. Federal Land Bank of Balti more, 108 F. 2d 275, 277 (C. C. A. 1st, 1939): “Appellee concedes that its vested mortgage interest may, even by subsequent legislation, be subordinated to a lien for taxes levied on the land, where the lien is established in support of taxes imposed and accruing from and after the date of such legislation. Wabash E. Ry. Co. v. Commissioners, 134 Ill. 384, 25 N. E. 781, 10 L. R. A. 285; German Savings & Loan Society v. Ramish, 138 Cal. 120, 124, 125, 69 P. 89, 70 P. 1067; Murphy v. Beard, 138 Ind. 560, 38 N. E. 33; see Provident Institution for Savings v. Mayor and Aldermen of Jersey City, 113 U. S. 506, 514-516, 5 S. Ct. 612, 28 L. Ed. 1102; Note, 30 L. R. A., N. S., 762. We decided nothing to the contrary in Domenech v. Lee, 1 Cir., 66 F. 2d 31, which related to excise taxes, not taxes on real estate. It is contended, however, that the legislature cannot, to the prejudice of pre-existing mortgage interests, create a new tax lien or revive an expired one, in support of past-due taxes levied on the land. In our opinion the taxing power is not subject to this limitation. The needs of revenue are served by the collection of delinquent taxes as well as by the collection of current taxes.” In Bryan’s Appeal, 101 Pa. 389, 393, Paxson, J., said: “It has never been held that charges upon or estates in land created by the owner thereof can avail as against the taxing power of the Commonwealth. Municipal liens for grading and paving streets are a species of taxation and come within the rule. Such liens bind the entire *328 estate in the land, except where an Act of Assembly directs otherwise. If it were not so, the owner of real estate conld wholly defeat the taxing power by charging it with the payment of a sum of money equal to its full value.”' The appellees refer to an Act of May 28, 1923, P. L. 316, validating tax liens filed after the Act of May 21, 1921, P. L. 1089, (considered above) and excepting from its application “any cases already adjudicated or to any suits now pending or undetermined.” That act does not apply; the judgment on which the city desired execution did not require validation. They also refer to statutes 1 “relating to judicial sales . . . and the preserving of the lien of mortgages. ...” The purpose of that legislation is familiar. 2 The statutes invoked by the City of Erie give the mortgagee his day in court to maintain his lien by paying the taxes on the mortgaged land; he has the election and determines whether his lien shall continue or be discharged. Appellees also rely on Scranton Lackawanna Trust Co. v. same, Guardian, 310 Pa. 125, 165 A. 12, deciding the right to the proceeds of a sheriff’s sale claimed by a mortgagee on his mortgage and by the Commonwealth on a collateral inheritance tax assessment against the estate of an owner who held subject to the mortgage. There, the Commonwealth’s lien was not on the land qua land, as it is in the present case, but on the mortgagor’s equity of redemption; the inheritance tax was, as the Court said, (at p. 127), “not an assessment of decedent’s interest in the property sold by the sheriff, but was of all the property which she owned at the time of her death, whether real or personal, after deducting therefrom her debts, including the face amount of the *329 mortgage, and the expenses properly allowed as a credit on the gross value of the estate. ...” That decision cannot aid appellees. The point that the title to the Act of 1923 was not sufficient does not merit discussion: compare Miller v. Northampton County, 307 Pa. 550, 162 A. 209. The order appealed from is reversed and the record is remitted for further proceedings. Footnotes [1] Act of May 8, 1901, P. L. 141, amending the Act of May 19, 1893, P. L. 110, again amended April 30, 1929, P. L. 874, 21 PS section 651. [2] See Girard Life Insurance Co. v. The Farmers’ and Mechanics’ National Bank, 57 Pa. 388; Fisher v. Connard, 100 Pa. 63.