DEEMER, J.
By written contract, entered into on the 29th day of May, 1909, plaintiff purchased from the defendant 253 acres of land in Jones county, Iowa. By the terms of the agreement plaintiff paid $1,000 in cash at the time the agreement was entered into and promised to pay the further sum of $1,000 on December 1, 1909, and the remainder of the purchase price on March 1, 1910. The agreement also contained these further provisions: “The said first party agrees in consideration of the payment of the said one thousand dollars ($1,000) on December 1, 1909, to execute a warranty deed to the said premises to second party, the same to be deposited in the Citizens' Savings Bank of Anamosa, Iowa, until the time for completion of this agreement, to wit, March 1, 1910, and agrees that upon the full payment of the balance of the purchase money on March 1, 1910, that said deed will be delivered to second party and possession of the premises surrendered to second party on March 1, 1910. In case either party fails to carry out any of the provisions of this contract he is to forfeit to the other party not in default, the sum of one thousand dollars ($1,000) as liquidated damages for said failure to carry out the contract as herein set out.”
Plaintiff complied with all these stipulations on his part and received a deed to the property on March 1, 1910. He discovered that the taxes assessed against the land for the year 1909 had not been paid and demanded of defendant that he pay them or refund to plaintiff enough of the purchase price whereby he might satisfy the same. This defendant refused to do, and, in order to save his land from tax sale and deed, he (plaintiff) paid the taxes thereon, amounting to $106.92, and then brought this suit to recover the amount thereof from defendant. Plaintiff did not get possession of the land or any of the rents and profits thereof during the year 1909. But defendant had a sale of his personal property on the farm on December 20, 1909, and thereafter made no other use of the premises, save to occupy them as a place of residence until March 1, 1910, when he gave plaintiff possession. The testimony also shows that plaintiff purchased some of the property at the sale, and that this remained upon the premises until he (plaintiff) took possession, and it also appears that defendant had a threshing machine upon the premises which he did not sell and that he paid plaintiff rental on the machine from December 20, 1909, until he (defendant) removed the machine some time during the fall of 1910. The sole question in the case is: Who is primarily liable for the taxes assessed against the land for the year 1909? Code, § 1400, provides that: “As against a purchaser, such liens (taxes on real estate) shall attach to real estate on and after the 31st day of December in each year.”
[1] Defendant contends that as plaintiff purchased the land prior to December 31, 1909, and as he had executed a deed and on December 1, 1909, deposited it in escrow in such manner as that it could not be recalled, he is not liable for the taxes, although the deed contained a general warranty against incumbrances. The deed seems to have been executed and acknowledged on December 1, 1909, but it was not actually delivered to plaintiff until March 1, 1910. In a broad sense plaintiff was a purchaser of the land when he entered into the contract of purchase in May, 1909. The contract was a valid and enforceable one and was not a mere option, as plaintiff contends; and the provision as to forfeiture would not prevent an action for specific performance. Kettering v. Eastlack, 130 Iowa, 498, 107 N. W. 177, 8 Ann. Cas. 357. But we have heretofore construed the word “purchaser” to mean something more than a buyer under an executory contract. In Nunngesser v. Hart, 122 Iowa, 647, 98 N. W. 505, and in Clinton v. Shugart, 126 Iowa, 179, 101 N. W. 785, we construed the word to mean owner of the land--the one holding the title.
In the latter case we said: “* * * We think it an established rule of law in this state that, as between the parties to an executory contract for the sale of land, where the seller retains the possession, rents, and profits until the conveyance is due, the duty rests upon him to pay the accruing taxes, in the absence of any agreement by which the purchaser assumes that obligation. This principle was expressly recognized in Miller v. Corey, 15 Iowa, 166;Hunt v. Rowland, 22 Iowa, 55;Lillie v. Case, 54 Iowa, 182, 6 N. W. 254;Nunngesser v. Hart, 122 Iowa, 647, 98 N. W. 505. The last cited case seems to be directly in point. Hart had sold plaintiff a tract of land by warranty deed, and the latter brought suit for a breach of the warranty because of a tax lien which had accrued after the contract of sale and before the conveyance. It appears that the contract, as in the present case, was purely executory, and possession was not to be given until after the deed was made. Reversing the ruling of the lower court sustaining a demurrer to the petition, we held the action could be maintained, and that the seller retainingthe use and possession of the property was liable for all taxes accruing before the title passed. It is, we think, the universal rule that the holder of the legal title in the actual occupancy and possession is duly bound to pay the taxes accruing during such possession, and, in the absence of some agreement to the contrary, he cannot shift the burden to the shoulders of another. Warvelle, in his work on Vendors, § 179, says: ‘Primarily the duty of paying the same (taxes) rests upon the person who holds the legal title. * * * The obligation is equally binding upon the vendee who has stipulated or agreed to pay the same. A vendee, prior to the conveyance, who has not so agreed, will not be directly responsible for the tax. * * * As between the parties, all payments of taxes by the vendee are presumed to be made on behalf of the vendor.’ The principle applied in Nunngesser v. Hart, 122 Iowa, 647, 98 N. W. 505, has been approved in Farber v. Purdy, 69 Mo. 601, and we find no holding to the contrary in this state or elsewhere. The enactment of Code, § 1400, fixing the date when a tax lien attaches between the seller and buyer of land, does not affect the authority of Miller v. Corey and other cases in which that decision is followed, for one who agrees to sell and convey at a future date, meanwhile remaining in possession of the property, continues to be the owner for the purposes of taxation until the contract is performed and the title passes, and it is this date to which we must look in applying the statute. According as the passing of the title takes place before or after the date named in the statute will the duty of paying the taxes fall upon vendee or vendor. If, therefore, the contract before us contains no provision by which the appellees expressly or impliedly undertake the burden of the accruing taxes, we must hold it to have been appellant's duty to discharge them. Counsel insist, however, that the provision in the contract by which the appellant's deed was to warrant the title generally to the date of the contract, and thereafter only specially against her own acts, is a sufficient indication of the understanding of the parties that she was to be relieved from the payment of taxes; but this is a strained and unnatural interpretation of the language referred to. Appellees, as the holders of the contract of purchase, had an equitable right in the land which was liable to become incumbered by their acts or omissions, thus creating real or apparent clouds or burdens upon the title; and it is not an unusual thing for vendors, in making an executory contract of sale, to fence against future annoyance and controversy by limiting the effect of their covenants in this manner. She does not undertake to warrant against her own acts down to the making of the conveyance, and if, as we hold, it was her duty to pay the taxes, in the absence of an agreement to the contrary, and by her neglect and failure to perform that duty, the title has become incumbered, we see no reason why it may not be said to be, in a very just sense of the word, the result of her own act, for which she would be liable on her covenant.”
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