Opdyke v. Crawford

The opinion of the court was delivered by Valentine, J.: This was an action on a promissory note and a real-estate mortgage. A personal judgment was rendered in favor of the plaintiff, George Opdyke, against the •defendant Crawford for the sum of $3,507, and the mortgaged property was ordered to be sold to satisfy this personal judgment. At the time this judgment was rendered there were taxes due on said mortgaged property amounting to $2,510, and the property itself was not worth more .than $3,800. The plaintiff asked that the mortgaged property be sold in accordance with law, that the taxes be first paid out of the proceeds thereof, and that the balance of the proceeds, if any, should then be applied in part payment of the plaintiff’s said personal judgment. But the court refused,, and rendered judgment as above mentioned. Under this judgment, and indeed under any judgment which might legally have been rendered, the property should first be appraised and then not sold for less than two-thirds of its appraised value. The only question now to be considered is, whether the court below erred in refusing to render the judgment as asked for by the plaintiff. We think it erred. Taxes are always a lien upon the real estate upon which they are imposed, and are always prior and paramount to any other lien or incumbrance. And courts of equity, in the foreclosure of mortgages, always have the power to ascertain what are liens [608] upon the mortgaged property, to determine their priority, and to order that such liens be discharged out of the proceeds of the sale of such real estate in accordance with their priority. (See authorities cited by counsel for plaintiff in error.) In this state a holder of a mortgage has two remedies : first, he may pay the taxes, and then recover them back from the mortgagor, or have them included in the judgment rendered in his favor on foreclosure; or, second, he, as well as the mortgagor, may neglect to pay the taxes, and then he may have the amount thereof paid out of the proceeds of the sale of the mortgaged property on foreclosure. The statutes upon this subject read as follows: “In cases where lands are mortgaged, if the mortgagor fails or neglects to pay the taxes, or in case said mortgagor permits any land so mortgaged to be sold for any taxes, the mortgagee may pay said taxes, or redeem any land so sold for taxes. And on the payment of any such mortgage, or in the action to enforce the same, such mortgagee may demand the taxes so paid, with interest thereon at the rate of twelve per cent, per annum, or include them in any judgment rendered on the mortgage; and any taxes so paid by any mortgagee shall be a lien on such land so mortgaged until the same be paid.”—(Laws of 1876, page 97, §148; Gen. Stat. of 1868, page 1062, § 135.) “Whenever any lands so held by tenants-in-common, shall be sold upon proceedings in partition, or shall be taken by the election of any parties to such proceedings, or 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.”—(Laws of 1876, page 70, §56; Gen. Stat. of 1868, page 1034, §40.) And as sustaining the rule above stated, see Ketchum v. Fitches, 13 Ohio St. 201; Tuck v. Calvert, 33 Md. 210, 224, 225; Easton v. Pickersgill, 55 N. Y. 310; Brown v. Evans, 15 Kas. 88, 92, 93. The judgment pf the court below will be modified, so that taxes due on the mortgaged property may first be paid out of the proceeds of the sale of such property. In every other respect the judgment of the court below will be affirmed. All the Justices concurring.