MacEwen v. Beard

Gileillan, C. J. This is an action to cancel a mortgage on real estate, executed in 1884 by the defendant Beard to the defendant Menage, and by him assigned' to the defendant the Security Bank. The mortgage contained a covenant on the part of the mortgagor to pay all taxes that might be imposed on the real estate. After the execution of the mortgage, Beard and wife, in 1885, conveyed the real estate to plaintiff. The ground on which plaintiff claims to have the mortgage canceled is that it was satisfied, either by direct payment or by acceptance in payment of certain notes; and in reply to the answer of the bank, praying for a foreclosure of the mortgage, he sets up a [178] tax title in himself under a judgment and sale for taxes imposed for the year 1888. As to satisfaction of the mortgage, there were only questions of fact which the court below found against the defendant, and its findings were justified by the evidence. The statute (1878 G-. S. ch. 11, § 87) does' not permit the owner of real estate sold for taxes to thereby acquire such an estate as shall defeat any right, title, interest, lien, or incumbrance which he is legally or equitably bound to protect against such sale, or the taxes for which it is made. As to such, his acquiring a tax title operates only as payment of the taxes. In Allison v. Armstrong, 28 Minn. 276, (9 N. W. 806,) it was held that a mortgagor in a mortgage containing a condition — not an express covenant — that he should pay taxes, could not acquire title to defeat the mortgage at a sale for taxes covered by the condition. 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. Plaintiff’s tax title did not, therefore, affect the mortgage. Judgment affirmed. Buck, J., absent, sick, took no part. (Opinion published 59 N. W. 942.)