Opinion
No. 32419.
November 30, 1936.
1. SUBROGATION.
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.
APPEAL from chancery court of Prentiss county. HON. JAS. A. FINLEY, Chancellor.
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 mere 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.
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 feet to the point beginning." That prior to January 30, 1933, the land had been sold for taxes and that the owners thereof, desiring to redeem it, obtained from the chancery court a decree removing the disabilities of minority of the minors and permitting them to join in notes and deed of trust securing them for a loan of money sufficient to redeem the land from the tax sale; that pursuant thereto the defendants borrowed the money necessary therefor from the appellant, executing to him their joint and several notes therefor, secured by a deed of trust on the land; and that, by inadvertence, the land was described in the deed of trust as "being a part of block 2 of Williams Survey of the Town of Booneville," whereas it should have been, and it was, the intention of all parties to describe it as "being a part of Block 2 of Williams, Boone and Curlee Survey of the Town of Booneville;" and that a part of the money loaned had not been repaid.
The bill prayed for a decree correcting the description of the land in the deed of trust and for its sale under the terms of the deed of trust. A copy of the decree removing the disabilities of minority of the minor defendants was filed as an exhibit to the bill.
A demurrer to the bill was sustained, except to the extent that a personal judgment was rendered against the adult defendants. The decree granted permission to the appellant to amend his bill of complaint, which was accordingly done.
This amended bill alleges, in substance, that C.E. Grisham was the owner of the land when it was sold for taxes and thereafter attempted to convey the land to the minor defendants, but erroneously described the land as being in "Block Two of Williams Survey of the Town of Booneville," when the descriptions should have been "Block Two of Williams, Boone and Curlee Survey of the Town of Booneville." That C.E. Grisham represented to the appellants that a decree had been rendered by the chancery court authorizing the minors to encumber the property for a sufficient amount to redeem it from the tax sale; and that Russell and his wife would also sign the notes and deed of trust. Relying upon this statement, the appellant made the loan hereinbefore referred to, and the notes and deed of trust were executed. The land was again erroneously described in the deed of trust as being "that part of Block Two of Williams Survey of the Town of Booneville," when the description should have been as "part of Block Two of Williams, Boone and Curlee Survey of the Town of Booneville." The bill then alleges that title never passed from Grisham to the minor defendants.
The prayer of the amended bill is that the deed of trust be reformed so as to correctly describe the land, and that the appellant be subrogated to the lien of the state of Mississippi on said land to the amount of the unpaid balance due on the land from the appellees to the appellant, and that the trustee in the deed of trust be authorized to sell the land in accordance with its terms. There was also a prayer for general relief.
A demurrer to this amended bill was also sustained, but the decree awarding a personal judgment against the adult appellees was permitted to remain in force, from which no appeal, either direct or cross, has been taken.
The decree removing the disabilities of minority of the minor appellees is said by counsel for the appellees, and admitted by counsel for the appellant, to be void for noncompliance with the governing statutes. No personal judgment against the minor appellees is sought. Counsel for the appellant, as we understand his brief, makes two contentions: First, that the deed of trust should have been corrected so as to properly describe the land; and, second, if not, the appellant should be subrogated to the lien on the land for the taxes, which was discharged by the money loaned by the appellant for that purpose.
We shall pretermit any discussion of the first of these propositions, and come at once to the second.
The appellees' contention is that the appellant does not come within the rule of subrogation, for the reason that he was a volunteer when advancing the money for the payment of the taxes.
One who on the security of a mortgage advances money, at the instance of the owner of the land mortgaged, to discharge a lien on the land is not a volunteer within the rule denying him the benefit of subrogation; and that the lien to which he seeks to be subrogated was intended to be, and was, paid, is immaterial (Union Mortgage Banking Trust Co. v. Peters Trezevant, Trustees et al., 72 Miss. 1058, 18 So. 497, 30 L.R.A. 829; Spence et al. v. Clarke, 152 Miss. 542, 120 So. 195), although the security given is ineffective because of defects therein. 25 R.C.L. 1352; annotator's note to Bell v. Bell, 37 L.R.A. (N.S.), at page 1210; North American Trust Co. v. Lanier, 78 Miss. 418, 28 So. 804, 84 Am. St. Rep. 635; Federal Land Bank v. Newsom (Miss.), 161 So. 864; cf. Berry v. Bullock, 81 Miss. 463, 33 So. 410, and Brown v. Brown, 90 Miss. 410, 43 So. 178. That the lien to which subrogation is here sought is a tax lien is immaterial; but the decree awarding subrogation thereto should preserve to the owners of the property, the minor appellees here, the right to redeem the land therefrom within the time allowed them by the statutes governing the right to redeem land from a tax lien or sale. Federal Land Bank v. Newsom (Miss.), 166 So. 345.
It will not be necessary to correct the description of the land in the deed of trust, which could not be done as against the minors as they were without authority to execute it; for the decree may direct its sale for the purpose of reimbursing the appellant, with the right to the appellees to redeem the land therefrom, as hereinbefore set forth.
Reversed and remanded.