Cade v. Jeffers

Wells, J. The first question for our consideration is whether that part of paragraph 6902, General Statutes of 1889, which provides that “where any real estate shall be sold at judicial sale, or by administrators, executors, guardians or trustees, the court shall order all taxes and penalties thereon against such lands to be discharged out of the proceeds of such sale,” include?!tax-sale certificates held by individuals. We think this question must be answered in the affirmative. Counsel for plaintiff in error contends that, because paragraph 7003 provides that the mortgagee may pay such taxes or redeem any lands so sold and recover judgment for the same in his foreclosure proceedings, he is not entitled to the relief furnished by paragraph 6902. The object of paragraph 7003 is to enable the mortgagee to protect himself, either before the institution of the proceedings of foreclosure or while they are pending, by paying the taxes and adding the amount to his mortgage indebtedness, but this in no way conflicts with his rights under paragraph 6902. That taxes due upon the tax-sale certificate held by an individual are included in the provisions of paragraph 6902, see the following authorities: Galbreath v. Drought, 29 Kan. 711; Kerr v. Hoskinson, 5 Kan. App. 193, 47 Pac. Rep. 172. In the case last cited the court expressly refers to the two remedies and the right to elect. The next contention of the plaintiff in error is, that, as paragraph 4495, General Statutes*of 1889, provides that the court, in actions to foreclose mortgages, at the time of rendering the judgment, may make an order for the application of the proceeds, or reserve such [63] application for the further order of the court, and as in this case the court had made such an order, it was not within its power afterwards to change or modify it. We do not think this position is tenable. Under our view of the law, it is substantially in the same condition that it would have been had the court failed to make any order providing for the payment of the costs; and can it be contended that in such a case it would have been improper, at the time of the confirmation or before it, to have amended the order so as to provide first for the payment of costs? In Galbreath v. Drought, supra, the Supreme Court says, “The court confirming the sale shall direct the sheriff to satisfy all the tax liens, etc. ; ” plainly intimating that after the sale, upon its confirmation, when the sheriff had the money, was the proper time to make the order. See also Harris v. McCrossen, 31 Kan. 402. Our view of the law being that the taxes were a paramount lien to the mortgage indebtedness, the objection made by the plaintiff in error to any testimony on behalf of the plaintiff below was properly overruled, and there was no error in sustaining the objections made by the defendant to the questions asked, or in overruling the motions of the plaintiff in error, as complained of. The judgment of the court below will be affirmed.