Dana v. Duluth Trust Co.

Maesiiall, J. It is familiar that the relations between principal and agent are such that the latter cannot rightfully speculate with the property of the former under his — 667 — charge, or acquire any interest therein to the prejudice of his principal. So, if such property be real estate, the agent cannot acquire a valid tax title thereon, or any interest therein, in breach of his duty to his principal. Geisinger v. Beyl, 71 Wis. 358. But the rule in that regard is satisfied in equity by avoiding a tax deed wrongfully obtained, at the suit of the principal, on condition of his reimbursing the agent for the money such principal would have been obliged to expend to discharge the tax lien had the agent not acquired it, with legal interest thereon. That is elementary. Authorities need not be cited to sustain it. As counsel for appellant contend, it is so laid down by all text writers and recognized by all courts. McMahon v. McGraw, 26 Wis. 614; Fisk v. Brunette, 30 Wis. 102; Geisinger v. Beyl, supra; Ellsworth v. Cordrey, 63 Iowa, 675; Cooley, Taxation, 502; Blackwell, Tax Titles, § 598; Black, Tax Titles, § 287. The reason of such rule springs from the principle which underlies our whole system of equity jurisprudence, viz. that he who seeks equity must do equity. The tax being a burden on the land, collectible out of that as the primary fund, paramount to all other claims upon it, the mortgagee is obliged to discharge such burden, if those whose duty it is to pay the taxes fail to do so, in order to preserve his security; therefore, if the agent acquires a tax deed of the land wrongfully, he becomes, nevertheless, equitably interested in such land to the extent of the lien for taxes merged in such deed, and entitled to retain such deed to protect such interest. To that extent the agent’s equity is superior to that of the principal under his mortgage; therefore such principal, in seeking equity to avoid such deed, must stand, ready to do equity by reimbursing his agent so far as the latter’s expenditures were necessary to protect the mortgage security. Appellant contends that the equitable rule stated in the foregoing applies to the facts found by the trial court; hence — 668 — that the conclusion oí law reached, that plaintiff’s mortgage is paramount to the lien of appellant for its expenditures for taxes, is wrong. Whether such contention should be .sustained, turns on whether the relation of principal and agent, in respect to the property, existed when the tax lien was acquired, and whether appellant bore any other relation to-the property that rendered it its duty to pay the taxes. Erom the foregoing it becomes important to determine what appellant’s real position was in relation to the property at the time the tax certificate was acquired and the tax deed taken. The evidence and findings are to the effect that the trust company obtained the certificate pursuant to an agreement with Stéphenson and Upham that all should jointly go into a speculation to realize as a profit, for equal division between them, the value of such property over and above the debt secured thereby and the amounts necessary to protect the title from tax claims in excess of rents that might be obtained in the meantime. The scheme contemplated that the trust company should purchase the certificate, perfect title thereunder by tax deed and judicial proceedings to bar all persons interested in the property except plaintiff, and advance all moneys' necessary for that purpose; that Stephenson, of the firm of Stephenson & U.pham, should obtain the equity of redemption from the mortgagors, take possession of the property, collect the rents thereof in the meantime, and turn them over to the trust company to reimburse it to that extent for its expenditures in carrying out the joint enterprise; and that when the title was so perfected, the property should be sold, plaintiff’s mortgage debt be paid, appellant be reimbursed the balance of its advances not theretofore covered bj7' rents received, and the residue be then divided between those engaged in the scheme. The facts found further are to the effect that the equity of redemption was obtained pursuant to this arrangement, by a conveyance to Stephenson in which, by an appropriate669 clause, be agreed to pay plaintiff’s claim and stand in tbe place of the mortgagors in respect to the covenants in the mortgage; that he immediately took possession of the property and thereafter, for several months, received rents from all buildings thereon and turned the same over to the appellant before the tax deed was taken. Whether such rents were sufficient to reimburse appellant for the cost of the tax ■certificate, before the tax deed was taken, does not appear, nor whether a sufficient amount was obtained thereafter for that purpose; but appellant had the benefit of the rents, whatever they rvere. Now here comes in an exception to the rule that an agent, taking a tax deed on his principal’s property, is entitled to be reimbursed in equity for the amount of his expenditures which were a lien thereon, viz. that the agent cannot acquire a valid tax deed on the lands •of his principal, nor successfully assert a lien under a tax •deed so obtained for the amount of taxes represented thereby, if he had in his hands rents and profits from the premises sufficient to reimburse him for the necessary expenditures to take up the tax lien. Travellers Ins. Co. v. Patten, 98 Ind. 209. In the same line, though not directly in point, is Fox v. Zimmermann, 77 Wis. 414. It does not appear whether the rents received by appellant were sufficient to cover necessary expenditures for taxes. A necessary part of the accounting, requisite to the court’s granting the relief asked, was for appellant to make a complete showing of receipts as well as expenditures, and failing in that, it was right to deny such relief entirely. Upon plaintiff’s establishing the relation of principal and agent between him and the trust company, and that it obtained the tax deed in breach of its duty growing out of such relation, plaintiff became entitled to the relief prayed for, unless the trust company made a proper showing to enable the court to determine definitely its equitable claims upon the property. That it failed to do. — 670 — But there is another principle which seems to apply to the facts; that is, that a person who, because of his interest in the property, is in duty bound to pay the taxes thereon, cannot obtain a tax deed on such property so as to cut off the rights of others interested therein, or acquire any lien thereon for the money expended for taxes in acquiring such title. The buying of a tax certificate under such circumstances operates merely as a payment of, or redemption from, the tax. Smith v. Lewis, 20 Wis. 350. Says Cooley on Taxation (page 501), in substance, this principle is so universal, so reasonable and just, as to scarcely need the support of authority. Show the existence of the duty, and the disqualification to take the tax deed or acquire a tax lien is made out in every instance. That disability applies to the purchaser of the equity of redemption. Travellers Ins. Co. v. Patten, supra. In Avery v. Judd, 21 Wis. 262, this court held in effect, that the purchaser from a mortgagor, subject to a mortgage, stands in his stead and is in duty bound to pay the taxes the same as his grantor, and if a person so circumstanced acquire a tax deed of the property, it is utterly void; a fortiori, that must necessarily be the case when the conveyance of the equity of redemption contains a clause by which the grantee assumed and agreed to pay the mortgage debt. From the foregoing it is clear that it was Stephenson’s duty, not only on general principles of equity, but under the covenant in his deed, to pay the taxes represented by the tax certificate upon which ,the tax deed in question was issued, and to pay all taxes on the property during the life of the mortgage. Now it stands as a verity in this case that the appellant was, really, equally interested with Stephenson in the equity of redemption; that to the extent of the necessary expenditures for taxes, it was the sole beneficiary of the interest which he acquired under the deed from the mortgagors. Stephenson was a mere trustee of the title for — 671 — ‘the sole use and benefit of the appellant, till reimbursed for all expenditures incurred by it in carrying out the joint enterprise; and upon the tax deed being taken, appellant became, at most, as between the parties, the owner of the' property subject to the plaintiff’s mortgage, if the scheme were carried out as agreed upon, for it does not appear to have been contemplated that plaintiff should be prejudiced by the speculation that was going on between the trust company and Stephenson and Upham, till long after the tax deed was taken. Not till the depreciation in the value of the property destroyed the prospect of profits in the enterprise and jeopardized the prospect of recovering the money expended by appellant and his associates as well, did it occur to them to insist upon the tax claim as a lien paramount to the plaintiff’s mortgage. Therefore, no reason is perceived why the trust company should not be considered in equity bound, as one of the owners of the equity of redemption, to pay the tax the same as if such equity had been actually vested in it. It occupied no better position merely because the title was'placed in the name of another for its use. The fact that the agreement for the speculation was verbal, and voidable under the statute of frauds on that account at the option of either party to the enterprise, does not affect the question. Appellant, while in duty bound to protect the plaintiff’s interest in the land, made the arrangement detailed, to acquire title to the property, ostensibly without prejudice to plaintiff’s rights. It kept silent as to all the operations when honesty required it to speak, if plaintiff’s rights were in any wajT in jeopardy, and thereby it is estopped from now changing its position to plaintiff’s prejudice. There is no principle better established in equity than that the statute of frauds cannot be invoked to enable the party who relies upon it to perpetrate fraud. In short, courts of equity will not sanction the use of the statute of frauds as an instrument of fraud. 2 Pomeroy, Eq. Jur. — 672 — § 921. Here the trust company, as stated, was as much interested as Stephenson in the title acquired by him, and, in order to realize on their scheme, was as much in duty bound to pay the taxes on the property and .to pay the mortgage •debt, though it was so circumstanced that it might have withdrawn, no doubt, from the arrangement at any time, unless estopped on some principle of equity. To allow it mow, because the scheme miscarried by reason of a depreciation in the value of the property, to change its position to the plaintiff’s prejudice, and succeed in recovering the money paid for taxes upon the ground that the contract entered into by it with Stephenson and Hpham was void under the statute of frauds, it seems would be using that beneficent statute to perpetrate a fraud. It is not the business of courts of equity to permit that. It follows from the foregoing that the judgment appealed from must be affirmed. By the Gourt.— So ordered.