In his statement of the case, appellant informs us it is the desire of both parties that the appeal be decided on the main question involved, waiving all defects in pleading, findings, or otherwise.
If, after the adoption of the present Constitution, plaintiff, the mortgagee, became primarily liable for the taxes upon his interest in the property mortgaged, and such taxes were in fact paid by the defendant, mortgagor, the former would have been liable to the latter for the sum so paid in an action for money paid, laid out, and expended to and for his use and benefit, independently of any constitutional or statutory provision authorizing him to set off such sum. Waiving all defects of form, defendant was justified in claiming the sums paid by him for plaintiff’s taxes as payments upon the mortgage debt. There was no contract between the mortgagor and mortgagee by which the former agreed to pay the taxes upon the mortgaged premises, the obligation of which was impaired by the provisions of the new Constitution. It is said that to hold that the mortgagor is to be allowed the sum by him paid for taxes assessed against the mortgagee, is to relieve him from the payment of a part of the money which he agreed to pay. But a power superior to both has relieved the mortgagor of a part of the taxes he was previously bound to pay, and has imposed upon the mortgagee a tax upon property previously not taxable. The mortgagor never owed the mortgagee any money for taxes. Under the former system he owed the State the taxes assessed upon the whole valuation of the property; under the present system he owes the State primarily the tax upon the value of the property, less the mortgage debt, and the mortgagee owes the tax levied on the mortgage interest. The mortgagor having paid an amount due from the mortgagee to the third party—the State—is entitled to recover the amount so paid. (McCoppin v. McCartney, 60 Cal. 371.)
Judgment affirmed.