Middletown Savings Bank v. Bacharach

Carpenter, J.

This is a petition for a foreclosure in'the ordinary form, with a prayer for the removal of a cloud from the petitioners’ title. After the mortgage was given some portions of the premises were sold for taxes, and the purchasers are made respondents. The court below granted the prayer of the petition, and pursuant to the statute directed execution to issue to put the petitioners in possession of the premises. A motion in error by the respondents presents Several questions for our consideration.

1. It is objected that the bill is multifarious and ought to have been so adjudged by the City Court.

It may be true that different respondents may have distinct and separate interests in the property mortgaged, or portions of it, which they acquired after the mortgage was given, and that some relief is asked for which does not affect them all; but it is equally true that one general right is claimed by the bill—the extinguishment of the equity of redemption—unless the parties interested therein, or some of them, shall pay the debt within the time limited. As the bill seeks, as its leading object, the foreclosure of the mortgage, it was necessaiy that all persons having such an interest in the property as to give them the right to redeem, should be made parties respondent. All other relief prayed for is incidental to this main object, and is for the purpose of making the foreclosure effective. That this incidental relief is asked for against some of the respondents and not against all, can not make the bill multifarious. An injunction is often asked for against a particular respondent and not against all, but so long as it is prayed for merely as incidental to the principal relief sought and for the purpose of making that relief effective, it can not affect the sufficiency of the bill. That such bills are not multifarious is well settled in this state. Mix v. Hotchkiss, 14 Conn., 32 ; *523 Wells v. The Bridgeport Hydraulic Co., 30 Conn., 316 ; Waters v. Hubbard, 44 Conn., 340 .

2. Bacharacli, one of the respondents, levied an execution upon the equity of redemption, subject to a prior levy, and set off one-eighth thereof to himself. Subsequently ho purchased portions of the property at tax sales and took deeds to himself, which after the expiration of one year were duly recorded. After the purchase of the tax title, but on the same day, he purchased a second mortgage upon the same property which was afterwards foreclosed. He now claims that his tax title is superior in right to the title of the petitioners. The court below decided otherwise, and that is assigned as error.

The counsel for the petitioners object to the validity of the tax title on the ground of alleged irregularities in the proceedings of the collectors. These questions we pass by.

It is also objected that he paid the taxes as second mortgagee, and therefore was not capable of purchasing a tax title. This objection rests mainly on the ground that that title did not vest until the expiration of the year, and that at that time he was clearly a second mortgagee. If in addition it could be shown that he contemplated the purchase of the second mortgage when he purchased at the tax sale, the case would be much stronger against him than it now appears to be; although there is some presumption that he did so intend from the fact that both transactions were on the same day. But without pursuing this inquiry further, it would seem to be a reasonable proposition that a stranger to property offered for sale for taxes may purchase the property in good faith, and afterwards within the year purchase a second mortgage upon the property without invalidating his tax title. By paying the tax he acquires a right which may perhaps be regarded as a vested right, contingent however upon failure of redemption by the owner within a year, and becoming absolute upon such failure to redeem. It is worthy of notice however that in this case Bacharacli actually purchased of the collectors thirty-nine feet front and rear of the fifty-three feet mortgaged. If the title thus acquired was prior in right *524 to the first mortgage it certainly was to the second; and yet by purchasing the second mortgage Bacharach practically recognized its priority to the tax title. We leave that question however undecided.

But a more serious objection to the validity of the tax title arises from the fact that Bacharach when he paid the taxes was the owner of, or at least interested in, one-eighth of the equity of redemption.

We base our discussion of this question upon the proposition, which seems to be conceded, that one whose duty it is to pay a tax cannot be a purchaser of property offered for sale for the purpose of collecting it. The payment of the money will be regarded as a payment of the tax and not as a purchase of property.

The word “duty” constitutes the debatable ground. Was it Bacharach’s duty to pay the taxes? The answer to the question and the decision of this point must hinge upon the meaning which we attach to that word.

It does not signify merely a legal obligation. The party against whom a tax is assessed is directly liable for the tax and his duty is clear. So too a purchaser or lessee, who has contracted to pay the tax, has placed himself under such obligations, and has assumed such a relation to the property, that it is his duty to pay the taxes. In these cases, in which there is a direct legal obligation, there can be no question about the duty. But other parties may acquire an interest in real estate who are not directly responsible to the public for the taxes, and who enter into no contract in respect to them, and yet may be so situated that it is their duty to pay the taxes. For instance, a purchaser of the property or of the equity of redemption subject to a tax lien; he may be compelled to pay the taxes in order to protect his own title. In such cases it is for his interest to do so. Necessity and interest combine to make it, in a broad sense, his duty to do so. Such a party ordinarily cannot be a purchaser of a tax title. So too a mortgagee is under no legal obligation to pay the taxes, certainly as between himself and the mortgagor; and yet ho may be compelled to pay them in order to protect his *525 mortgage. Although there may be cases which hold that under certain circumstances he may purchase a tax title, yet the general rule is that he cannot; and for the very good reason that it is not necessary for him to do so. He may pay the tax and the amount paid will be added to his debt, and he will hold the whole property as security therefor. In such a case it is unnecessary to complicate the legal title with a tax deed, and the law will not allow it to be done. It simply makes it his duty to pay in default of the mortgagor.

In this case the question arises between the mortgagee and one who has acquired an interest in the equity of redemption. If Bacharach had acquired the whole equity of redemption instead of one-eighth of it, it is entirely clear that, as between himself and the petitioners, it would be his duty to pay the taxes. Still, in a certain sense he was under no legal obligation to do so. He might abandon his interest in the property, in which case the tax could not be collected of him. Does it vary the case in principle that he owned less than the whole equity? We think not. Whether the equity of redemption be worth much or little, whether he owns the whole or a part, can make no difference. In either case, if his interest is worth protecting he will pay the tax. In neither case can he purchase a tax title.

Let us test this case by supposing a different state of facts. Suppose the petitioners had been compelled to pay the taxes. Unquestionably they could have added the amount paid to their demand, and any party redeeming must pay it. Now could Bacharach redeem by virtue of his interest in the equity of redemption? There can be but one answer to that question. Could he have been required, if he did redeem, to refund to the petitioners the taxes paid by them? The answer to that question is equally obvious. We think it is a proposition that cannot be controverted, that any party who sustains such a relation to the property that he has a right to redeem, and, if redeeming, may be required to refund to the mortgagee the taxes paid by him, cannot be a purchaser of the property if sold for taxes. As between him and the mortgagee it is his duty to pay the tax.

*526 It was the duty therefore of Bacharach to pay the taxes on this property by virtue of his ownership of a part of the equity of redemption. Consequently he was not capable of purchasing at a tax sale, and the deeds to him conveyed no title.

3. The coui't below, pursuant to a statute authorizing it, decreed that an execution issue to put the petitioners in the possession of the property at the expiration of the time limited for redemption. This the respondents object to, on the ground that the statute which authorizes a court of chancery to oust a party in possession without a jury trial is unconstitutional.

It will be observed that the statute does not authorize a court of chancery to settle the title. The court did that as between the mortgagee and the owners of the equity of redemption, and in many other cases prior to and independent of the statute. It was formerly thought that it could not be done. Broome v. Beers, 6 Conn., 198 ; Palmer v. Mead, 7 Conn., 149 . But it is now well settled that it can. Cowles v. Woodruff, 8 Conn., 35 ; Frink v. Branch, 16 Conn., 260 ; Alden v. Trubee, 44 Conn., 455 . The only power therefore conferred by the statute is that of granting full relief by putting the petitioner in the possession of the property after the court by the exercise of its ordinary chancery powers has determined that he is entitled to it.

Before the statute the practice was for the petitioner to bring an action of ejectment at the time of petitioning for a foreclosure. If the decree was granted judgment in the action of ejectment followed almost as a matter of course, with stay of execution till the decree became absolute. The result was that the respondent was required to pay two bills of cost instead of one. The object of the statute was to save a multiplicity of suits by giving a court of equity the power to give complete relief. This is in harmony with another principle which is well established, that when a court of equity has jurisdiction of a cause to determine the rights of the parties, it will retain jurisdiction and give the appropriate relief.

*527 We see nothing in the statute that is obnoxious to the constitution by infringing the right of trial by jury.

There is no error in the judgment complained of.

In this opinion the other judges concurred.