I concur, on the following ground, in the result reached by the majority of the court. The present petition seeks to establish, in equity, the priority of the mortgagee's claim for taxes. This court in the Willits case, supra, recognized the propriety of the application of the principle of subrogation in such instance when "no circumstances appear to render the same oppressive or inequitable." However, in my opinion, the facts and circumstances appearing herein do render the application of that principle in this proceeding inequitable. This point is discussed in the latter portion of the majority opinion.
In addition to the matters therein referred to on this issue, it may be noted that the mortgagee made no attempt to foreclose its mortgage until 1935, although such mortgage had been in default since 1930. Even though it was a fact that the corporation which owned the property went into receivership in 1931, and the mortgagee was then, by an injunction in general terms, prevented from foreclosing its mortgage, undoubtedly on its motion such injunction would, after a reasonable interval, have been vacated by the court, as eventually happened. See Inre S.H. Greene Sons Corp., 131 A. 547 (R.I.). The evidence herein, however, clearly shows that the mortgagee, while it did not specifically surrender any right, nevertheless apparently was willing to delay action in connection with its mortgage in the hope that business conditions and the real estate market would improve.
In the meantime, the mortgagee, which was kept informed of conditions surrounding the property involved, for several years paid the taxes in question, which were in excess of $1000 each year, without taking any positive action looking toward reimbursement. Under such circumstances, when the foreclosure finally took place after the expiration of several *Page 481 years, the total sum of such taxes with interest exceeded the entire amount of the assets of the insolvent corporation in the hands of its receiver. In view of the manner in which this situation was brought about, and because of the other reasons advanced on this point in the majority opinion, in my judgment the granting of the mortgagee's petition for priority as to its tax claim is inequitable.
Having concurred in the dissent filed in the law case, heard herewith, I am of the opinion that the mortgagee has established its claim for taxes against the insolvent corporation in question. However, such mortgagee, in my opinion, should be treated as a general creditor only of such corporation, and, under the circumstances appearing herein, is not entitled to any priority as far as such claim is concerned.