Upon the coming in of the suggestions of error in this case, and upon examination of them, it was determined to set aside the decree of affirmance entered by Division B on a former day, and to remand the case to the docket for consideration and determination by the full court in banc. Upon such consideration we have concluded that the opinion heretofore delivered by Division B and reported in 161 So. 867-868, is correct when taken in connection with the opinion in the companion case to which reference is therein made (161 So. 864) and we refer further to the additional opinion in the companion case this day delivered, 166 So. 345, and we make the same a part hereof. *Page 139
The point which has been particularly urged upon us is that the subrogation of appellant to the tax lien of the state and county ought not to be upheld because in this case appellant has a valid deed of trust upon the existing life estate, and that, because it was the duty of the life tenant to pay the taxes on the entire estate in fee simple, appellant can obtain no higher rights in respect to the payment of the taxes than the life tenant would have had in the payment thereof. All of us agree that it is the duty of a life tenant in possession to pay the taxes on the land in fee, and, although it may be, as to which we express no opinion, that under section 3146, Code 1930, a separate assessment may be made of a life estate, it is doubtful if anybody in this state ever heard of a separate assessment of a life estate, for the very reason that it is the duty of a life tenant to pay the taxes on the entire fee-simple estate. But no such duty to pay the taxes rests upon the mortgagee of a life tenant — no more so than upon the mortgagee of an owner in fee. See 41 C.J., pp. 636, 637, and the numerous cases cited in the notes.
Consequently the assessment of the taxes in this case was, as always in such cases, upon the entire or fee-simple interest in it, and the sale for taxes, from which appellant redeemed, was made according to the assessment, as it had to be. The lien which the state and county held for taxes was upon the fee-simple estate, not upon any life estate or any other estate less than in fee-simple. Appellant was obliged, therefore, to redeem and pay the taxes on the entire estate or else upon none at all. The lien by way of subrogation must in consequence be coextensive with the lien which appellant was obliged to discharge, if any at all were to be discharged.
Taxation upon lands in this state is primarily against the property, and the tax lien is a lien in rem, section 3120, Code 1930; and the name or names of the owner or owners, or their personal status in relation to the property, *Page 140 or the kind of interest therein which they respectively own, is of no consequence, so far as the lien is concerned, when, as here, there has been an assessment of the land in fee. It may even be assessed to unknown persons. And, when we hold, as we do in accord with the weight of authority, that a mortgagee who pays taxes or redeems from tax sales for the protection of his security is entitled to become subrogated to the paramount lien of the state, county, or municipality, it further follows that the lien to which the mortgagee is subrogated is the lien which the state, county, or municipality holds, and that, since this is a lien in rem upon the entire estate, and without regard to persons, the fact that the mortgagor owns a less estate than a fee simple disappears as an element in the legal equation. The lien being a lien in rem upon the entire estate and against everybody, and being paramount to all other interests, that lien will be deemed as transferred by the state, county, or municipality to the mortgagee. This is the reasoning in the cases cited in the note 6b, pp. 1374-1377, in 84 A.L.R., and we follow that line of cases, since those cases seem to run in accord with the nature of the lien for taxes on real estate which results from our statute, section 3120, supra.
But it is argued that the mortgagee could have proceeded under sections 3265 and 3266, Code 1930, to have the taxes as due on the life estate apportioned, and thereupon could have redeemed the life estate without payment of the entire fee-simple taxes, and that, not having done so, appellant was a volunteer as to any taxes beyond the amount apportionable to the life estate. We are of opinion that the said sections are not applicable to any such interest as a life estate, even if we concede, for the sake of the argument, that a life estate may be separately assessed under section 3146, Code 1930. Sections 3265 and 3266, Code 1930, are available where a mortgagee or other person in interest claims an undivided share in the *Page 141 entire tract, as, for instance, an undivided one-half interest, or where the mortgagee or other person claims forty acres in a tract of one hundred and sixty acres assessed in solido. But to permit the clerk to value a life estate for assessment, and thus separate it from a fee-simple assessment, would not only be impractical and unworkable, but would, perhaps, encounter constitutional obstacles, in that it would by indirection constitute the clerk a sole assessing officer, when he is not the person who is designated by law to make assessments. City of Greenwood v. Humphreys, 157 Miss. 879, 127 So. 694, 128 So. 885, and is not of property which had escaped taxation, but of property already assessed by the constitutional assessment authorities, and in such manner that no tangible clue can be obtained from the assessment as to what value would have been ascribed by the regular assessment officers to any such estate as a life estate, when the only assessment made by them was of a fee simple interest or entire estate.
We affirm that the bank has a valid mortgage on the existing life estate and a lien upon the entire estate by way of subrogation for the taxes mentioned in the bill of complaint, and, in affirming the decree of the chancellor, we go no further than above stated. When or how the lien for the taxes is to be foreclosed we leave open for consideration first by the chancellor, as mentioned in the opinion in the companion case.
Affirmed and remanded.