Carpenter v. Douglass

• Decision Date: 10 March 1913
• Citation: 61 So. 161,104 Miss. 74
• Court: Mississippi Supreme Court
• Parties: J. T. CARPENTER v. W. F. DOUGLASS ET UX

61 So. 161

104 Miss. 74

J. T. CARPENTER v. W. F. DOUGLASS ET UX

Supreme Court of Mississippi

March 10, 1913

March 1913

APPEAL from the chancery court of Kemper county, HON. J. F. MCCOOL Chancellor.

Suit by W. F. Douglass and wife against J. T. Carpenter and others. From a decree for plaintiff, defendants appeal.

The facts are fully stated in the opinion of the court.

Reversed, and bill dismissed.

S. M Graham, for appellants.

There is only one question, without which there would have been no litigation in this matter, and that is:

1. Whose duty is it to pay the taxes? The vendee in possession under bond for title, or the vendor holding notes for the purchase money?

It will be agreed by and between the attorneys on both sides that this is the question to be decided in this case which was raised on demurrer herein.

2. The other, a minor question, is whether this was a proper proceeding to recover for the taxes paid in 1902, when the premises were leased. As to the first question, it would seem that the maxim of equity that "he who seeks equity must do equity" applies here with great force. Here is a vendee in possession of a four hundred and eighty-acre farm under a bond for title receiving all the rents and profits and holding an equitable title to same, coming into an equity court seeking reimbursement for the taxes he has paid as such vendee without offering to do equity by refunding the rents and profits which he, the vendee, has been receiving through all these years.

Speaking of the nature of such contracts of sale of real estate as we have involved in the instant case, this court said through Justice CLAYTON speaking for the court that (4 Smed. & Marsh. 300), "The retention of title by the vendor upon a sale is in effect, the same thing with conveying the title and taking a security by mortgage." Citing Graham v. McCampbell, Meigs' Rep. 52.

Again in the case of J. H. Watson v. R. P. Sawyer et al., 54 Miss. 64, this court speaking through Justice CHALMERS said: "The vendor by title bond holds the legal title only as trustee for the vendee and as a security for the purchase money, while the beneficial interest vests in the vendee. The latter, therefore, in the absence of some special stipulation or exceptional circumstances is liable for the taxes." Citing with approval 13 How. (U. S.) 57, 64.

But counsel for plaintiff (appellees) argues and in fact alleges in his bill that this bond for title was such a "special stipulation" or agreement as would compel the vendor to pay the taxes. The title bond is set out above and speaks for itself and shows conclusively on its face that it contains no such special stipulations as would compel the vendor to pay the taxes, but instead is an ordinary bond for title. Counsel argues that the covenant of warranty in the aforesaid contract of sale made it necessary for the vendor to keep the taxes paid on said land so he (the vendor) could specifically perform at the proper time and this is evidently the view the learned chancellor took of the matter, but a complete answer to this contention will be found in a very able and exhaustive opinion handed down from the Supreme Court of the United States in the case of Bradford v. The Union Bank of Tennessee, 14 How. (U. S.) 57, 64. In this case Bradford was subrogated to the rights of the vendee Brown, Bradford being surety for the purchase money and having it to pay as surety.

The court speaking through Justice NELSON in a very able opinion said: "Indeed the courts in Mississippi regard the vendor in contracts of this description as standing, in most respects, upon the footing of one who has already conveyed the title and taken back a mortgage as security for the purchase money, and the vendee as mortgagor in possession. 4 Sm. & Marsh. 300, 61d., 149, 101d., 184.

"Brown, vendee, therefore, during the running of the contract, was at least the owner of the equitable title, accompanied with the possession, and as such was under obligation to take care of and pay the taxes assessed, accruing after his purchase. And the loss of title to the whole or any part of the tract in consequence of neglect, in this respect, is attributable to his own fault, for which the vendor is not responsible. No doubt, with a view to the better security of the purchase money, the vendors might have paid the taxes in case of the neglect of the vendee, and charged the amount to him. But this was a question they had a right to determine for themselves, and with which Brown (the vendee) had no concern.

"It is quite clear, therefore, if the case stood on the original contract of purchase, the defendants, the vendors, on the tender of the purchase money, would have been bound only to convey to the vendee a good and valid title at the time, subject to an understanding as to title that existed under tax sales, where the payment of taxes had accrued subsequent to the purchase. For these titles they, the vendors, would not have been responsible, as they arose from the neglect of the vendee Brown."

From the excerpt above it is clear that it is not only the duty of the vendee in possession under a bond for title to pay all taxes accruing after the execution of the contract of sale, but that if the land be sold for taxes, it is the fault of the vendee and therefore the vendee's loss in case the tax title matures.

There is no quarrel between litigants about the execution of the deed or any other question except as to the allowances for the taxes paid by vendee after possession was given, and if appellees will do equity by paying back the rents and profits of said land, appellants will then be willing to pay back taxes, but until appellees are willing to do equity, they should not be heard to come into an equity court.

As to the question of this being an improper proceeding on the part of complainants (appellees), section 2077, Annotated Code 1906, provides a course of procedure which would have been full and adequate in its effect, and in fact it provided for just such cases as the instant case, and having the administrator appointed, all just claims in favor of the vendee could have been probated and allowed; in that event the claim of appellees for taxes paid for the year 1902, while possession was only under lease, would be barred by our statute of limitations. Therefore, if the claim would not be allowed by an administrator, it should not be allowed in a proceeding like as in the instant case.

Appellees admit in their bill that they went into possession in 1902, and have remained in possession since that time, being vendees since Feb. 5, 1903; they admit that the vendor is deceased and that there has been no administration of his estate; they admit that their claim for taxes paid is only for taxes paid since they have been in possession; they admit that there are minor heirs' interest in this suit and this record fails to disclose that they have ever been legally brought into court.

Counsel for appellees realized the necessity for some exceptional circumstances or stipulations in a contract for the sale of land to compel the vendor to pay the taxes, and so he alleged in his bill that vendors agree in their bond for title to keep all the taxes fully paid up, but the bond for title speaks for itself and we submit that there is no such stipulation in said bond and if there were any other agreement, appellees failed to attach same to their bill or set out same "in haec verba" therein.

This whole case, shorn of an effort on the part of appellees to recover for taxes paid while in possession as vendees under a bond for title, is wholly without substance or equity.

We submit that the decree of the learned chancellor in the court below ordering the commissioner to deduct the amount of...