Russell v. Grisham

• Decision Date: 30 November 1936
• Docket Number: 32419
• Citation: 170 So. 900,177 Miss. 435
• Court: Mississippi Supreme Court
• Parties: RUSSELL v. GRISHAM et al

170 So. 900

177 Miss. 435

RUSSELL v. GRISHAM et al

No. 32419

Supreme Court of Mississippi

November 30, 1936

Division A

Division A.)

1 SUBBOGATION.

One who on security of mortgage advances money at instance of owner of mortgaged land to discharge lien on land is not "volunteer" within rule denying him benefit of subrogation, notwithstanding that lien has been paid and that security given is ineffective because of defects therein.

2 TAXATION.

Third person who, on security of mortgage, loaned money for payment of taxes at instance of father of minor owners whose disabilities had been removed by void decree, was subrogated to lien on land for taxes, subject to right of minor owners to redeem land therefrom within time allowed by statutes governing right to redeem land from tax lien or sale, as against contention that such third person was a volunteer.

HON JAS. A. FINLEY, Chancellor.

APPEAL from chancery court of Prentiss county, HON. JAS. A. FINLEY, Chancellor.

Bill by E. E. Russell against C. E. Grisham and others. From the decree, E. E. Russell appeals. Reversed and remanded.

Reversed and remanded.

E. C. Sharp, of Booneville, for appellant,

Conceding for the sake of argument that the transfer from Grisham to his children had correctly described the property and that the trust deed executed to Russell by Grisham, his wife and minor children was void, still the right of Russell to be subrogated to the lien of the state for taxes paid would not have been impaired or destroyed. In the case of Federal Land Bank v. Newsom, 161 So. 864, this court said. "There is respectable authority to the contrary, but both upon principle and the weight of authority, we prefer the rule that where a mortgagee pays the taxes on the mortgaged property to preserve the title from forfeiture to the state or to an individual tax purchaser, the mortgagee will be subrogated to the lien of the state or municipality although the lien for the protection of which the mortgagee paid the taxes turns out to be an invalid lien."

Farmers & Merchants Bank v. Rushing, 167 So. 784.

It cannot be argued that to subrogate appellant to the lien of the state and permit a foreclosure would affect the minors' interest or shorten the time of redemption; first, for the reason that the legal title to the land upon which the taxes were paid is not and has never been in the minors; second, if the minors have the equitable title or any other interest in this property, it was acquired after the land had been sold to the state for taxes and they could not therefore claim an extension of time for its redemption.

Federal Land Bank v. Newsom, 166 So. 345; Love v. Robinson, 161 Miss. 585, 137 So. 499.

Certainly it cannot be said that Russell obtruded himself without invitation in this matter. It is shown by the record that appellees were in imminent danger of losing their home and appealed to the chancery court for authority to mortgage same and thereby redeem it from the tax sale and secure an extension of time whereby they could repay the amount then due over a long period of time in small monthly payments at a low rate of interest. Appellant advanced the necessary amount, evidently out of sympathy for their condition and with a desire to aid them in retaining a home over their heads, for it could hardly be said that the interest he would receive on the loan would have been any great inducement. Having secured the loan and received the benefit thereof appellees cannot now in a court of conscience defeat recovery and retain the benefit. Equity and good conscience will not permit such a course of dealing.

The Legislature realizing the many inaccuracies and erroneous descriptions in the tax rolls and being desirous of protecting those who advance money to pay taxes enacted chapter 286, Laws of 1932, and we call attention to section 3 of the act which amends section 3275 of the Code.

This act gives to a purchaser at a tax sale a lien upon the land purchased for the taxes due although the sale was illegal on some other ground, and provides that this lien may be enforced by the purchaser by a bill in chancery. Certainly this same right should be accorded the appellant in this case.

Hayes v. Land Bank, 174 Miss. 880, 165 So. 605.

Jas. A. Cunningham, of Booneville, for appellees.

E. E. Russell loaned this money with his eyes open: and there was not any reason for him to lend the money to protect any interest of his own, for he had none, but it was a mete voluntary act on his part. There are no bugs under the chip revealed by this proceeding, but suffice it to say for this record that he comes squarely under that class of interlopers discussed by this court in Love v. Robertson, 137 So. 499, and whatever this situation was about the taxes, the appellant E. E. Russell was in a situation discussed by this court in the above case as one "who officiously intrudes himself without public or private invitation into a matter which, to use a common expression, is none of his business."

One cannot volunteer to enter into a situation with no previous investments or rights to protect and rely upon such a voluntary entrance as a right to be subrogated to anybody's rights or to any rights whatever except such as may be enforced by the plain obligatory elements of a contract, and this does not obtain with minors wholly incapacitated to contract away interests in real estate.

Argued orally by E. C. Sharp, for appellant.

OPINION

Smith, C. J.

The appellant exhibited an original bill in the court below against the appellees, C. E. Grisham and his wife, and their three minor children, alleging, in substance, that they owned the land described as follows "Part of Block 2 of Williams, Boone and Curlee Survey of the Town of Booneville commencing at the northeast corner of said block run thence south with east boundary of said block 140 feet thence west 209 feet thence north 140 feet to the north boundary of said block; thence east 209...