Shrigley v. Black

[217] The opinion of the court was delivered by Cunningham, J.: It will be seen from the above statement of facts that the first question presented for our consideration relates to the effect of the redemption by the minors owning the entire estate of the mortgaged property from the sale by virtue of the tax lien, under the decree of the United States circuit court for the district of Kansas, and of the construction which must be given to section 23 of the redemption act, under the facts of this case. That section (Gen. Stat. 1901, §4949) reads as follows: “Real estate once sold upon order of sale, special execution or general execution shall not again be liable for sale for any balance due upon the judgment or decree under which the same is sold, or any judgment or lien inferior thereto, and under which the holder of such lien had a right to redeem within the fifteen months hereinbefore provided for.” It is contended that the mortgage lien of Shrigley was inferior to the lien decreed for taxes, and that Shrigley, as the holder of the inferior lien, had a right to redeem within fifteen months ; hence, his lien is wholly cut off by the redemption made by the minors. A literal construction of the terms of this section leads to this conclusion. We are met, however, with the reply from Shrigley that this section has no application so far as his mortgage is concerned, it having been executed prior to the passage of the act, and the claimed superior lien being for taxes which the law required the owners of the land to pay. It will not be contradicted that the makers of a mortgage cannot defeat the lien created thereby by the purchase of the premises at tax sale for taxes which they should have paid. We hold that the same rule applies to the grantees of such makers, and that the rights of the [218] grantee in this respect cannot rise higher than those of the grantor ; that the grantee takes such grant subject to the same conditions, obligations and disabilities in this respect as those resting upon the grantor. In Jones on Mortgages, 5th edition, section 680, it is said: “A mortgagor cannot, by acquiring a tax title upon the land, defeat the lien of the mortgagee. It is his duty to pay the taxes, and he is not allowed to acquire a title through his own default. The same obligation rests upon one who has purchased the land of the mortgagor.” In MacEwen v. Beard, 58 Minn. 176, 178, 59 N. W. 942, it was held : “In this case, Beard, the mortgagor, was disabled to acquire a tax title that would defeat the mortgage. He could not put his grantee in any better position than he occupied himself. With respect to the mortgage as a lien on the property, the grantee stood in just the position that the grantor- had occupied.” To the same effect, see Manuel C. Jordan v. Henry D. Sayer et al., 29 Fla. 100, 10 South. 823; Porter v. Lafferty, 33 Iowa, 254; Stears v. Hollenbeck, 38 id. 550; Fair v. Brown, 40 id. 209; Fallass, Administrator, v. Pierce and others, 30 Wis. 443, 481. This view of the law makes it clear that, had the minors in this action purchased at a tax sale made to enforce the tax lien prior to the passage of the act of 1893, such purchase would have amounted only to a payment of the taxes and an extinguishment of the lien; in other words, it would have been equivalent to the payment by the owners of the taxes. Now, if we shall hold that the owners obtained greater rights by a sale and redemption under the provisions of section 23, then it would necessarily follow that the mortgagee had lesser rights — that he had lost some [219] thing of value, and that the act operated to impair to some extent the obligation of the contract existing at the time of its passage. To that extent, and in such a case, we must hold that section 23 is unconstitutional, inoperative, and void, and that the owners — the minor plaintiffs in error here — would take nothing thereby. It may be doubted whether this redemption law would apply to a case of this kind, even if it affected only contracts made since its enactment, and whether the legislature, without anywise referring thereto, intended to make such an inroad upon the provisions of our tax law, and the principles with which it is buttressed by the holdings of the courts, as section 23 would if construed as plaintiffs in error suggest. To do so would be to permit the owner of mortgaged property, by allowing taxes which he ought to pay to become delinquent, and the property to go to sale and deed therefor, utterly to cut off his own mortgage by redeeming from a sale for the lien of taxes which he himself ought to have paid in the first instance. If he could not accomplish such a result directly, how could he indirectly by pursuing the method indicated in section 23 ? We are of the opinion that the court did not err in holding against the contention of the minor defendants. The question presented by Shrigley is an interesting one. In many respects his argument is plausible. He presented the same question when this case was here before and the court held without discussion : ‘ ‘ The plaintiffs have a theory of construction of the will of Soranus Brettun under which they maintain that the land was devised to Margaret Brettun, and therefore that she, and afterward her heirs, owned it, even if she had no other source of title. The theory [220] is not sound.” [Prest v. Black, 68 Kan. 682, 686, 66 Pac. 1017.) The question decided was material in the case. We see no adequate reason for changing our views upon the proper construction of the will as there announced, and no good to result from an elaborate discussion of its provisions. Upon both questions, the judgment of the district court will be affirmed. Johnston, Gjreene, Burch, JJ., concurring. Pollock, J., not sitting, having been of counsel in the court below.