Miller v. Corey
| Decision Date | 08 October 1863 |
| Citation | 15 Iowa 166 |
| Parties | MILLER v. COREY, Administrator |
| Court | Iowa Supreme Court |
Appeal from Story District Court.
IN 1854 defendant's intestate sold to plaintiff a farm, for which there was to be paid $ 2,250. A bond was given, which recites the payment of $ 50 at the time of the contract, and that notes were given for different sums, the last one maturing March 1, 1861. Plaintiff was to have full possession on the 1st of May, 1855, and the notes drew interest from date at six per cent. Upon the payment of these notes the vendor bound himself to make and deliver to plaintiff "a good and sufficient deed, clear of all incumbrances." For the years 1858-'9-'60-'61, the taxes were unpaid, on the land thus sold, amounting to over $ 150.00. Plaintiff paid all the notes and demanded a deed, and there-upon a controversy arose as to whose duty it was to pay said taxes. The Court below held that it was plaintiff's duty to pay such as accrued after he took possession, to wit, May 1 1855; and from this order plaintiff appeals.
Affirmed.
Casady & Polk for the appellant.
J. L Dana for the appellee.
Hon CALEB BALDWIN, Chief Justice, Hon. GEORGE G. WRIGHT, Judge, Hon. RALPH P. LOWE, Judge, from December 7 to December 24, 1863. Hon. GEORGE G. WRIGHT, Chief Justice, Hon. RALPH P. LOWE, Judge, from January 1, 1864, to the conclusion of the Term. [*]
It will be observed that the bond in this instance, differing from most contracts for the sale of lands, makes no provision for the payment of taxes, or rather does not in words impose the duty upon either party. Counsel have not referred to any case touching the question made by them, nor have we from the books at our command been able to find any throwing very much light upon it.
The Code of 1851, § 458, and the Revenue Act of 1858, p. 307, § 4, provide that every person having the capacity shall assist the assessor in listing all property subject to taxation, of which he is the owner or has the control or management, and that property under mortgage or lease shall be listed by and taxed to the mortgagor or lessor, unless it be listed by the mortgagee or lessee. Any one having a lien on or interest in the property could redeem the same under the tax sale, in the same manner as the actual owner. Laws of 1858, p. 324, § 59. Aside from these provisions, we find nothing in the statutes in force when these taxes were payable, indicating who was regarded as the owner of real property, for the purposes of taxation. And especially is this true as between those having an interest in it or in the title. We regard them, however, in harmony with the conclusion that, under the circumstances disclosed in this case, the vendee should pay the taxes, and shall, therefore, as well as upon general principles, so hold.
The vendor of real estate, under such a bond, is the holder of the legal title, but in trust for the vendee, upon the payment of the purchase money. The latter is treated as a mortgagor and the former as a mortgagee, for the purposes of foreclosure, by the express provision of the statute. Code of 1851, § 2095. After the execution of the contract, the vendee is regarded as the real (not the legal) holder of the title, or owner of the property. He has an interest which he may sell or devise. He may treat and manage the property as his own,--subject, of course, to the right of the vendor to keep his security substantially intact,--make improvements, lease and collect rents, and generally do the same as if invested with the full title. The promised deed is only intended to finally execute or consummate the contract. And in this case it must not be forgotten that the bond recites that the vendor had sold, and not that he would sell, the lands described; in other words, it was not an agreement to sell, but a recitation of the terms of a sale actually made. Within the meaning of the statute, therefore, the vendee, we think, was the owner of the property, and it should have been listed by and taxed to him or in his name.
But it is said that, though this may be true, it does not follow that the vendor would not be bound to keep the land clear of all incumbrances by taxes or otherwise; that the statute is directory, and intended to give a rule in the assessment of property, and not to settle the rights of parties as vendor and vendee. Let us see, then, whether the above conclusion does not accord with other equitable considerations, as well as those above stated.
By the terms of the contract, the vendee had a right to the possession of this land before these taxes were assessed, and this right, according to the finding of the Court below, he exercised and enjoyed from and after the time thus fixed. He then had the solo control and was in the full...
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