Maxfield v. Willey

• Decision Date: 15 June 1881
• Citation: 46 Mich. 252,9 N.W. 271
• Court: Michigan Supreme Court
• Parties: MAXFIELD v. WILLEY and another.

9 N.W. 271

46 Mich. 252

MAXFIELD v. WILLEY and another.

Supreme Court of Michigan

June 15, 1881

On foreclosure for non-payment of taxes as they fell due the mortgagee claimed to recover, taxes paid by himself, certain sums paid by his agent in bidding in the property at tax sales. Held, that such payments were not in contemplation of law payments of the taxes and could not be included. When a mortgagee instead of paying taxes due purchases the land at a tax sale, the mortgagor can treat the purchase as a payment and compel the cancellation of the tax certificate or deed on refunding the amount paid, with interest. But it cannot against his will be held a payment on his behalf. Neither party to a mortgage can cut off the other's interest by bidding in the premises at a tax sale, if the other objects thereto. A tax purchase by an agent in his own name but with his principal's money does not support a resulting trust in his principal's favor.

Appeal from Saginaw.

Camp &amp Brooks, for defendants.

COOLEY J.

This is a foreclosure suit. The mortgage is not disputed, nor the amount due upon the debt, and the controversy is narrowed to a question whether complainant is entitled to recover certain sums as payments upon taxes. The mortgage was given by defendant Seth Willey; it bears date February 14, 1872, and was conditioned among other things for the payment by the mortgagor of all taxes and assessments that might have been or might be levied or assessed upon the mortgaged land. It was also provided therein that in case of non-payment of the debt and interest, or of the taxes assessed or levied on the land "as soon as the same have become due and payable," the mortgagee might foreclose and sell. The bill avers that the mortgagor did not pay the taxes for the years 1872 to 1878 both inclusive and that complainant paid the same, and then proceeds as follows:

"Your orator further shows that he paid said taxes through his agent, Jerome K. Stevens, of Saginaw City, Mich.; that said Jerome K. Stevens was his agent for looking after and attending to the payment of taxes upon said premises, and taking care of your orator's interest in said premises under his said mortgage; that said Stevens for and in behalf of your orator, paid said taxes by bidding off said lands at the annual tax sales in October, 1875, for the taxes for the year 1872 for city taxes and for the years 1872, 1873 and 1874 for state and county taxes, and by bidding off the lands at the annual tax sales in October 1875, October, 1876, October, 1877, and October, 1878, for the state and county taxes for the years 1874, 1875, 1876 and 1877 respectively, and that he paid the city taxes upon said lands for 1873 and 1874, by purchasing leases of said lands from the city of East Saginaw upon the date aforesaid, which leases were made by said city of said lands, as delinquent for the city taxes levied thereon, in pursuance of its charter.

"Your orator further shows that his said agent made said bids and took said purchases in his own name, but for the use and benefit of your orator and for convenience merely, as your orator charges, and said Stevens so informed said defendant Willey at about the time of taking said

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