Federal Land Bank of New Orleans v. Newsom
| Decision Date | 24 February 1936 |
| Docket Number | 31733 |
| Citation | 175 Miss. 134,166 So. 346 |
| Court | Mississippi Supreme Court |
| Parties | FEDERAL LAND BANK OF NEW ORLEANS v. NEWSOM et al |
(In Banc.)
1. LIFE ESTATES. Mortgages.
Life tenant in possession has duty to pay taxes on the land in fee, but no such duty rests upon the mortgagee of a life tenant.
2 TAXATION.
Mortgagee who paid delinquent taxes and redeemed mortgaged property from tax sale held subrogated to lien of state for taxes as against remaindermen, though mortgagor at time of giving deed of trust had only life estate in property (Code 1930, section 3120).
3 TAXATION.
Statute permitting redemption in part by mortgagee of land sold for taxes held not to authorize mortgagee of life tenant to have taxes due on life estate apportioned, and hence did not render mortgagee paying entire fee-simple taxes a volunteer as to amount in excess of amount apportionable to life estate (Code 1930, sections 3265, 3266).
APPEAL from the chancery court of Panola county HON. N. R. SLEDGE Chancellor.
On suggestion of error.
Prior decree (161 So. 867) affirmed, and case remanded.
Affirmed and remanded.
James McClure, of Sardis, for appellant.
It is not true that if the life tenant fails to pay the taxes on the property in question that the remainderman's rights would be lost or destroyed in the property.
17 R. C. L., page 637, par. 26.
If the taxes are not paid when due and the property is sold therefor and the tax title matures in the purchaser, then, and in this event, the rights of both the lienholder and the remainderman are lost. The situation of the parties in this regard is to some extent similar to that of the holders of a first and second mortgage on property. If neither the owners of the property nor the holder of the first and second mortgage lien pay the taxes when due and the property is sold on account thereof and title matures in the purchaser, the rights under both mortgages are lost. Accordingly, a number of respectable authorities hold to the view that in such case where a junior mortgagee pays taxes on the mortgaged premises he is entitled to credit for the amount so paid as against a senior mortgagee; his lien being paramount to that of the first mortgagee by reason of being subrogated to the lien of the state, county or municipality.
Federal Land Bank v. Richland Farming Co., 180 Ark. 442, 21 S.W.2d 954; Corning Bank & Trust Co. v. Federal Land Bank, 52 S.W. 975; Atchison Savings Bank v. Wyman, 65 Kan. 314, 69 P. 326; Ward Bldg. Assn. v. Dines, 22 Ky. L. Rep. 1116, 60 8. W. 9; Noeker v. Howry, 119 Mich. 626, 78 N.W. 669; Fiacre v. Chapman, 32 N. Y. Eq. 463; Leavitt v. Weldemar Co., 151 N.Y.S. 832; Bunsmuir v. Port Angeles Gas, Water, L. & P. Co., 30 Wash 586, 71. Pac. 9.
It has been held in several jurisdictions that a mortgagee who pays taxes on the mortgaged premises for the protection of his security is entitled to be subrogated to the paramount lien of the state, county or municipality for the sum so paid.
Kortright v. Cady, 23 Barb. (N. Y.) 490, 21 N.Y. 343, 76 Am. Dec. 145' Childs v. Smith, 58 Wash. 148, 107 P. 1053; Lester v. Richardson, 69 Ark. 198, 62 S.W. 62; Pratt v. Pratt, 96 Ill. 184; Brady v. His Creditors, 43 La. Ann. 165, 9 So. 59; Wyoming Bldg. & L. Assn. v. Mills Constr. Co. , 38 Wyo. 515, 60 A. L. R. 418, 269 P. 45; Equitable Trust Co. v. Kelsey, 209 Mass. 416, 95 N.E. 850. Ann. Cas. 1912, 750. Lawton v. Adams, 13 Ohio C. C. 233, 7 Ohio C. D. 129; Farmer v. Ward, 75 N.J.Eq. 33, 71 A. 401; Mutual L. Ins. Co. v. Newell, 78 Hun. 293, 28 N.Y.S. 913, 144 N.Y. 627, 39 N.E. 494; Marks v. Baum Bldg. Co., 73 Okla. 284, 175 P. 818; Hogg v. Longstretch, 97 P. 255; 25 R. C. L. 1366, par. 51; Stone v. Tilley, 100 Tex. 487, 123 Am. St. Rep. 819; Stoops v. Bank of Brinkley, 148 Ark. 127, 225 S.W. 593; Beyer v. Investor's Syndicate, 31 N.D. 247, 153 N.W. 476; Catlin v. Mills, 140 Wash. l, 47 A. L. R. 545, 247 P. 1013; Utah State Bldg. & L. Assn. v. Perkins, 53 Utah 474, 173 P. 950; Union Cent. L. Ins. Co. v. Chesterley, 100 Wash. 260, 170 P. 558.
In some jurisdictions it has been held that even where a person under an honest, but mistaken, belief that he held a valid mortgage lien paid general taxes for the sole purpose of protecting his supposed lien, that the right of subrogation to the lien held by the state and county to secure the taxes paid by him was allowed and approved.
Federal Land Bank of New Orleans v. Newsom, No. 31,732.
The appellant in redeeming the lands from the tax sale is entitled to a lien upon the property as against the remainderman.
If, however, the court should hold that the appellant's lien for taxes is expressly limited to the life estate upon which appellant holds its deed of trust, then, and in this event, I invoke the rule that it is only the duty as between the remainderman and the life tenant for the latter to pay the ordinary taxes assessed to the land; and, it is not the duty of the life tenant to pay assessments for public improvements.
Huston v. Mayo, 120 Miss. 523, 82 So. 334; 17 R. C. L. 638, par. 28; Houston v. Tribbetts, 171 Ill. 547, 49 N.E. 711, 63 A. S. R. 275; 114 A. S. R. 449, notes; Ann. Cas. 1914B, 819.
I respectfully submit that in any and all events the appellant bank is entitled to a lien as against the remainderman's estate for such amount as may be ratably and equitably apportioned between the life tenant and the remainderman on account of the drainage taxes paid by the bank when it redeemed the lands from the tax sale in question.
I respectfully submit that this court should hold that appellant bank when it redeemed the lands from the tax sale in question is entitled to a lien upon the property as against the remainderman.
Herbert Holmes, of Senatobia, and John W. Crisler, of Clarksdale, for appellees.
We submit that the court was not in error in holding that the lien for taxes should be limited to the life estate upon which the Federal Land Bank holds its deed of trust. That life interest is the estate upon which the Federal Land Bank has a valid deed of trust, and we construe the opinion of the court as simply holding that the bank is subrogated to a lien for taxes against this estate. Any life tenant may mortgage his life estate, and if the mortgagee is required to pay the taxes, he is subrogated only to a lien against the life estate. He is not subrogated to a lien against the fee.
It is the duty of the life tenant to pay the taxes. The Federal Land Bank, in this case, slips into the shoes of the life tenant.
It would be an intolerable situation if the Federal Land Bank should by foreclosure have the use of this land for an expectancy of perhaps fifteen or twenty years and then have the right to subject the fee to the payment of the taxes now claimed by it.
We earnestly submit that the most disastrous results will come to these minor children, if their title to this property is to be encumbered with taxes accrued and to accrue during the lifetime of the life tenant. When the effects of the decision are considered, it may truly be said that the appellees have won an empty victory. If this decision is to stand, small opportunity is presented to these children of having anything left to them when the life estate falls in. We earnestly ask the reconsideration of the court.
The Supreme Court of Mississippi has gone a long way in preserving an adult's property from being taken without due process, and how much further should it go to protecting the interests of minors of tender years.
Chears Floor & Screen Co. v. Gidden, 159 Miss. 288, 131 So. 426.
The lien which inures to the benefit of appellants is limited solely to the life estate upon which the appellant bank holds its deed of trust.
The Federal Land Bank acquired an interest only in the life estate from Bruce D. Newsom, since Bruce D. Newsom himself was only vested with such an estate.
21 C. J. 960, sec. 96 I; Bone v. Tyrrell, 113 Mo. 175, 20 S.W. 796; Wilson v. Linden, 42 L. R. A. (N. S.), 242, Ann. Cas. 1913E 138; Cannon v Barry, 59 Miss. 289.
Argued orally by L. F. Easterling and James McClure for appellant and by John W. Crisler and Herbert Holmes for appellees.
Upon the coming in of the suggestions of error in this case, and upon examination of them, it was determined to set aside the decree of affirmance entered by Division B on a former day, and to remand the case lo the docket for consideration and determination by the full court in bane. Upon such consideration we have concluded that the opinion heretofore delivered by Division B and reported in 161 So. 867 at 867-868, is Correct when taken in connection with the opinion in the companion case to which reference is therein made (161 So. 864) and we refer further to the additional opinion in the companion case this day delivered, 166. So. 345, and we make the same a part hereof.
The point which has been particularly urged upon us is that the subrogation of appellant to the tax lien of the state and county ought not to be upheld because in this case appellant has a valid deed of trust upon the existing life estate, and that, because it was the duty of the life tenant to pay the taxes on the entire estate in fee simple appellant can obtain no higher rights in respect to the payment of the taxes than the life tenant would have had in the payment thereof. All of us agree that it is the duty of a life tenant in possession to pay the taxes on the land in fee, and, although it may be, as to which we express no opinion, that under section 3146, Code 1930, a separate assessment may be made of a life estate, it is doubtful if anybody in this state ever heard...
To continue reading
Request your trial
- Federal Land Bank of New Orleans v. Newsom
- Newsom v. Federal Land Bank of New Orleans
-
Mills v. Mills, 47072
...and Lumber Co., 224 Miss. 789, 80 So.2d 745 (1955); Magee v. Holmes, 220 Miss. 49, 70 So.2d 60 (1954); Federal Land Bank of New Orleans v. Newson, 175 Miss. 134, 166 So. 346 (1936); 31 C.J.S. Estates § 47 (1964). The action of the chancellor in making the allowance for taxes is hereby The c......
-
Campbell v. Herod
...title against the remainderman even though the tax sale was had for taxes that had accrued before the life estate existed. See Federal Land Bank v. Newsom, supra. chancellor held that Penny accepted the devise in the will of his wife. If he accepted the life estate so devised, he could not ......