This is an action to quiet title. The plaintiff is the receiver of the First State Bank of Beulah, an insolvent domestic banking corporation. The complaint is in the statutory form. The Provident Life Insurance Company is the only answering defendant. It denies the allegations of the complaint, pleads title and possession in itself under a deed issued pursuant to mortgage foreclosure and sale, and asks that title be quieted in it as against the plaintiff. Plaintiff, replying, sets up a claim of superior title by virtue of a tax deed. The facts were stipulated. The trial court found for the plaintiff. Whereupon the defendant perfected this appeal.
The record discloses the following facts. In October, 1916, Fischer mortgaged the real property involved in this action to the defendant Provident Life Insurance Company to secure the payment of $1,500. In November, 1916, Fischer gave a second mortgage on the property to the First State Bank of Beulah to secure the payment of $1,000. Neither of the mortgages was ever paid. The bank at all times retained *Page 170 ownership of the second mortgage. In November, 1922, the defendant began proceedings to foreclose its mortgage by advertisement, and pursuant thereto the property was sold on January 29th, 1923, for the amount of the mortgage indebtedness and costs, the defendant being the purchaser at the sale. There was no redemption from such sale and sheriff's deed was issued to the defendant on February 15, 1924. The 1918 taxes on the property were not paid and it was sold at tax sale in December, 1919, to one Seivert. There was no redemption from such sale and on February 2, 1923, Seivert assigned the tax sale certificate to the bank. On February 10, 1923, at the instance of the bank, the county auditor gave notice of expiration of the period of redemption. No redemption was made and tax deed was issued to the bank on May 17, 1923. This deed is the deed under which plaintiff as receiver claims title. Thus the contest in this case is between the plaintiff claiming under the tax deed and the defendant Provident Life Insurance Company claiming under sheriff's deed issued pursuant to the foreclosure of its first mortgage.
On these facts the issues here for determination are: First, as to whether the bank as a junior mortgagee might acquire tax title for taxes falling due subsequent to the execution of its mortgage and assert title as against the defendant, the senior mortgagee, and, second, as to whether the tax deed is a regular and valid deed. If the first question is determined adversely to the plaintiff it will be unnecessary to pass upon the second.
Section 2211, Comp. Laws 1913, provides:
"Any person who has a lien by mortgage or otherwise upon any real property that has been sold for taxes or on which the taxes have not been paid, may redeem from such sale, or may pay such taxes and the interest, penalty and costs thereon, and the receipt of the county treasurer or the certificate of redemption, as the case may be, shall constitute an additional lien on such land to the amount therein stated, and the amount so paid and the interest thereon at the rate specified in the mortgage or other instrument, shall be collected with, as part of, and in the same manner as the amount secured by the original lien."
It is appellant's contention that by virtue of this statutory provision each of the mortgagees was estopped to take tax title, either as against the other mortgagee or against their common mortgagor; that under *Page 171 the statute the mortgagees were permitted to pay the taxes and to resort to the security of the mortgages for the amounts so paid; that under these circumstances equity will permit neither to refrain from paying taxes as the same become due and thereafter acquire a tax deed adverse to the other; that when the bank took the assignment of the tax certificate in question it took the same as a trustee for itself and for the senior mortgagee, and while it holds the tax deed issued pursuant to this certificate as security for the amount paid for it, it cannot claim title thereunder as against the defendant; that so far as the defendant is concerned the purchase of the certificate was a payment of the tax. On the other hand, the plaintiff insists that in this state a mortgage is security only for the debt and its only effect is to impose a lien upon the property mortgaged; that there is no duty imposed upon the mortgagee to pay the taxes and that the rule that one mortgagee may not procure a tax title adverse to his mortgagor or other mortgagee applies only where there is a duty upon him to pay the taxes; that even though the rule does apply in this jurisdiction, yet it cannot in the instant case for the reason that at the time the bank took the assignment of the tax certificate it no longer had a lien because of the foreclosure of the defendant's first mortgage on January 23, 1923; that, in any event, under the peculiar provision of our statute, § 2196, relating to the sale and purchase of real property at tax sale, the plaintiff was not precluded from purchasing the premises on which it had the mortgage at tax sale and taking title through and under deed issued pursuant to such sale.
There is no question but that one who owes a duty to pay taxes on property cannot by omitting to do so, purchase at a sale of the property for the nonpayment, and thereby strengthen his title. See notes in 15 Am. Dec. at page 684 and in 75 Am. St. Rep. at page 229; See also 26 R.C.L. 412; 37 Cyc. 1345. The plaintiff concedes this to be the law but contends that it has no application to mortgagees in this state since here a mortgage is security only for the mortgage debt and merely a lien upon the property mortgaged and, therefore, there is no duty upon the mortgagee to pay the taxes. While there is a wide divergence in the holdings with respect to the right of a mortgagee who has only a lien, to procure and assert a tax title as against either his mortgagor or other mortgagees, nevertheless we think that the *Page 172 more widely accepted and the more just rule forbids a mortgagee such right. As was said by Judge Cooley in the case of Connecticut Mut. L. Ins. Co. v. Bulte, 45 Mich. 113, 7 N.W. 707:
"But it is possible for parties to have antagonistic claims in lands, which place them neither actually nor constructively in confidential relations. In some cases no doubt either is at liberty to strengthen his title as against the other by a tax purchase. Blackwood v. Van Vleit, 30 Mich. 118. It is claimed that a second mortgagee occupies this position in respect to the first mortgagee, and if the latter does not protect his lien by payment of the taxes or by attending as purchaser at the tax sales, the former is under no obligation to do so for him. And it is no doubt true that he is under no obligation to protect the first mortgagee; but the real point in controversy is, whether, if the second mortgagee pay the taxes or bid off the land, the payment or purchase will not ipso facto constitute a protection?"
"It certainly cannot be said that the second mortgagee owes any duty to the first mortgagee to protect his lien as against tax sale. Neither on the other hand does the first mortgagee owe any such duty to the second mortgagee or to the owner. To the state each one of the three may be said to owe the duty to pay the taxes; and the state will sell the interest of all if none of the three shall pay. As between themselves, the primary duty is upon the mortgagor; but if he makes default either of the mortgagees may pay, and one of the two must do so or the land will be sold and his lien extinguished. But in such cases, where each has the same right, payment by one is allowed to increase the amount of his encumbrance, for in no other way could he have security for its repayment by the mortgagor, who ought to protect the security he has given.
"When therefore each mortgagee has the same interest in making payment of the tax, and the same right to do so, and the same means of compelling repayment, it may well be held that a purchase by one shall not be suffered to cut off the right of the other, because it is based as much upon his own default as upon that of the party whose lien he seeks to extinguish. It is as just and as politic here as it is in the case of tenants in common, to hold that the purchase is only a payment of the tax."
This is a classic statement of the reasons for holding that one *Page 173 mortgagee may not acquire and assert title under a tax deed as against another mortgagee. See also Lane v. Wright,121 Iowa, 376, 100 Am. St. Rep. 362, 96 N.W. 902; Norton v. Metropolitan L. Ins. Co. 74 Minn. 484, 77 N.W. 298, 539; Jones, Mortg. 7th ed. § 714; Cooley, Taxn., § 1440; 19 R.C.L. 398; notes in 11 Ann. Cas. p. 759 and in L.R.A. 1917D, 522. But we need not look beyond the decisions of our own court for precedent in this direction. This court in the case of Finlayson v. Peterson, 11 N.D. 45,89 N.W. 855, speaking through Judge Wallin said with respect to a contest between a mortgagor and a mortgagee who claimed under a tax deed procured while he was a mortgagee:
"But aside from this fact (that the tax deeds were defective), the deeds cannot stand as a conveyance in favor of the defendant and against the plaintiff, because when they were obtained by Gurd he was in the relation of a mortgagee, and, as such, was given permission by the terms of the mortgage to pay taxes on the land, and add the amount so paid out to the mortgage debt. It is well established that a mortgagee under such circumstances, is estopped to acquire title as against the mortgagor. Under such a state of facts, a trust relation arises, in which the mortgagee or his grantee becomes a trustee, and as such is not only debarred from acquiring title himself as against the trustor, but is under an obligation to pay the taxes, as a means of protecting the trust property as against a hostile title . . ." (citing authorities).
We had occasion to consider the rule there adopted and its application in the late case of Williams v. Campion, 53 N.D. 456,206 N.W. 703. We there said:
"The first question to consider is this: Where one executes a note secured by mortgage, the mortgage containing a clause permitting the mortgagee to pay the taxes and add the amount to the mortgage debt, and the premises are subsequently sold to one other than the mortgagee, who acquires title by tax deed, does the conveyance of this title to the mortgagee, or his assignee, defeat the right to recover the debt? Counsel rely principally upon the case of Finlayson v. Peterson, supra. In that case the mortgagee, who had acquired title through a void foreclosure, set up, in addition, a tax title. The mortgage contained a clause similar to that pleaded in the instant case. The holding on this *Page 174 point was (see page 53 of the opinion) that the tax deed could not stand as a conveyance in favor of the mortgagee, because when obtained the mortgagee had express permission by the terms of the mortgage to pay the taxes and add the amount to the mortgage debt and that, by reason of such permission, the mortgagee was `estopped to acquire title as against the mortgagor.' In the instant case it is not alleged that Moore, who acquired the tax title, occupied the position of a mortgagee, for aught that appears in the answer in the instant case Moore's title was adverse to the plaintiff's lien as well as to the defendants' title, as the tax lien was superior to both. When, therefore, the tax lien had, as alleged in the answer, ripened into a tax deed, there was a deraignment of title and both the mortgage lien and the defendants' title were extinguished. The mortgage lien being extinguished, the mortgagee, or his successor in interest, no longer stood in any relation of trust or confidence with respect to the property and was as free to bargain for its purchase as though the mortgage had never existed. There can be no basis for any contention that the tax lien clause in the mortgage obligated the mortgagee to pay taxes; it only permitted this to be done. Under the facts alleged in the answer, he did not in fact pay the taxes; he purchased a fee title. We are clearly of the opinion that the principle applied in the case of Finlayson v. Peterson, supra, has no application under these facts."
See also Safe Deposit T. Co. v. Wickhem, 9 S.D. 341, 62 Am. St. Rep. 873, 69 N.W. 14; First Nat. Bank v. McCarthy, 18 S.D. 218, 100 N.W. 14.
But the plaintiff insists that in the instant case the first mortgage held by the defendant Life Insurance Company had been foreclosed prior to the purchase of the tax certificate by the bank, and that therefore the bank was no longer a mortgagee and so was not estopped to take title through tax deed. Thus plaintiff seeks to make the distinction drawn in the cases of Williams v. Campion, and Safe Deposit T. Co. v. Wickhem, supra. We do not think, however, that the facts justify him in this contention. The first mortgage was foreclosed by sale on January 23, 1923. Within a few days thereafter the bank procured the assignment of the tax certificate from Seivert and at once took steps to procure and did procure tax deed thereunder. Both at the time of its purchase of the tax certificate and at the time that the *Page 175 deed was issued it occupied the position of a redemptioner from the foreclosure by reason of its second mortgage. It was at all times in a position to assert its rights under its mortgage until January 23, 1924, when the year of redemption would expire. During such time it was a mortgagee with all the rights of a mortgagee within the meaning of that term as used in the rule which forbids one mortgagee to procure and assert adverse title through tax deed as against another.
Lastly the plaintiff relies upon the statute, § 2196, to relieve it from the operation and effect of this rule. This section provides:
"Any person except county auditors, county treasurers, and each of their deputies or clerks, may become the purchaser at such sale. If the owner purchase, the sale shall have the effect to pass to him (subject to redemption as herein provided) every right, title and interest of any and every person, company or corporation, free from any claim, lien or incumbrance, as the owner so purchasing may be legally or equitably "bound to protect against such sale, or the taxes for which such sale was made; and no such sale of real estate for taxes shall be considered invalid on account of the same having been charged in any other name than that of the rightful owner; provided, that nothing herein contained shall be so construed as to prevent any officer or his deputy or clerk from becoming the purchaser at such sale of any lands of which he may be the owner, or upon which he may have a lien; provided, further, that no county auditor, county treasurer, their deputies or clerks, shall act as agent or attorney for the purchasers at such sale."
Generally, the purpose and effect of this section is to prohibit those who may be concerned as officers in the proceedings looking toward the collection of taxes through sale of the property, from purchasing at the sale. No reference is made in the statute to mortgagees of property that may be sold, though reference is made to owners thereof. This statute was enacted as § 81 of chapter 126, Sess. Laws 1897. Section 94 of the same chapter, heretofore quoted as § 2211, Comp. Laws 1913, makes provision whereby one who holds a lien by mortgage or otherwise upon real property may redeem from tax sale thereof or may pay taxes thereon, and any payment so made shall constitute an additional lien upon the property and shall be collected with, as a part of, and in the same manner as the amount secured by the original lien. *Page 176
These two sections must be considered and construed together. Thus considered and construed it is evident that the legislature did not intend in such cases to wholly abrogate the rule which forbids a person to profit through wilful failure to discharge his duty. To give the statute the construction for which the plaintiff contends would mean that anyone — owner, mortgagee, co-tenant, lessee, agent, trustee or any other person charged with the duty of paying taxes, whether such duty arose by contract, under statute, or on application of equitable principles, might profit through willful failure to discharge a duty which was his. We therefore must hold that, under the circumstances in this case, the bank when it took the assignment of the tax certificate, in effect paid the taxes and cannot assert as against the defendant any title acquired through tax deed on account thereof.
Though the bank could not acquire title adverse to the defendant by procuring the tax deed, nevertheless the bank is not without recourse for the moneys expended by it in protecting the title. This is the effect of the statute, § 2211, supra. But regardless of the statute, and on equitable grounds, the defendant ought not and will not be permitted to assert that when the bank bought the certificate it was conclusively presumed to be doing so to protect its rights and the rights of the defendant and at the same time refuse to reimburse the bank for the payment thus made by it. To enjoy the benefit arising from the payment made by the bank the defendant must be willing to assume the burden thereof and to repay the bank. This the defendant professes to be ready and willing to do. But we are also of the opinion that the plaintiff should not be denied relief altogether. Both parties seek equitable relief, and the court having assumed jurisdiction should and will consider and determine all the rights of both respecting the subject matter. Schmidt v. Johnstone, 31 N.D. 53, 153 N.W. 293. Asking equity they must do equity. If the defendant is able to realize the amount of its claim from the mortgaged property it cannot complain if any excess above that claim is applied upon the debt due the plaintiff. To that end the plaintiff should be permitted to redeem from the defendant's foreclosure. So it follows that if the plaintiff sees fit to do so he should be permitted to redeem from the defendant's foreclosure on payment of the amount for which the property was sold *Page 177 together with proper charges including taxes, if any, paid, and interest.
This being the case plaintiff, will, at his option, be permitted to redeem from the defendant's foreclosure within sixty days from the date of entry of final judgment herein, and if he does not elect to do so within such time, the defendant shall have title quieted in it to the premises in question on payment to the plaintiff of the amounts expended in the purchase of the tax certificate and in procuring deed thereunder, together with any other proper charges that may have been paid, with interest at the legal rate upon the amounts so paid.
It was stipulated in the lower court that the right to the rents and profits on account of the use and occupation of the premises in question for the years 1924 and thereafter should abide the determination of this action. The amounts of such rents and profits must therefore be taken into account in determining the sum to be paid by either party to redeem in case redemption is made.
The judgment of the district court is reversed and the case remanded with directions that judgment be entered in accordance with this opinion. It is so ordered.
BURKE, BURR, and BIRDZELL, JJ., concur.
CHRISTIANSON, J., dissents.
On Petition for Rehearing.