Dillon v. Lange
James F. Dillon v. Otto C. Lange
Opinion of the Court
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Lummus, J.
This is an appeal from decrees sustaining a demurrer and dismissing the bill. The plaintiff acquired title to a mortgage upon realty by mesne assignments from the defendant, and foreclosed it, buying the property at the foreclosure sale. The defendant, while he held the mortgage, had taken a tax deed of the same premises from the collector of taxes. The mortgage provided that if the mortgagor should not pay the taxes, the mortgagee might pay them, “and the amount paid with interest thereon from the time of payment, shall be added to the principal sum” secured by the mortgage. The plaintiff, contending that the tax title had been extinguished by merger with the mortgage, brought a bill to remove the cloud of the tax deed from his title, and in it recited substantially the foregoing facts.
The demurrer was rightly sustained. The provision in the mortgage, and the similar statute (G. L. [Ter. Ed.] c. 60, §§ 58, 60, St. 1932, c. 2), extended, and did not limit, the remedies of a mortgagee compelled to satisfy a tax upon mortgaged property. Stevens v. Cohen, 170 Mass. 551, 554 . One of his remedies is to buy at the tax sale and hold the tax title in addition to the mortgage. Home Savings Bank v. Boston, 131 Mass. 277 . The case of Walsh v. Wilson, 130 Mass. 124 , is not in point, not only because the mortgagee in that case was in possession when he attempted to obtain the tax title, but also because the tax title, a conveyance of which to the mortgagee was held invalid, was one first bought by the city, which the city could not convey except by sale at public auction under a statute which became obsolete with St. 1915, c. 237, § 20, and St. 1918, c. 257, § 56, and was omitted from the General Laws. .Since the defendant had a clear interest and right to keep separate the mortgage and the tax title, there was no merger. Earle v. Washburn, 7 *429 Allen, 95 . Keith v. Wheeler, 159 Mass. 161 . Cheffee v. Geageah, 253 Mass. 586 . The assignment of the mortgage to the plaintiff left the tax title vested in the defendant.
Decrees affirmed with costs.
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