The respondents insist that as there is no bill of exceptions the judgment of the circuit court must be affirmed, and refer us to Merwin v. O'Day, 9 Wis., 156, and New York authorities. Section 15, ch. 264, Laws of 1860, provides that it shall be necessary to cause a bill of exceptions to be made part of the record only when the alleged errors, without the bill, would not appear upon the face of the record. The finding of the court is a part of the record, and also the judgment ; and if the facts found do not warrant the judgment, the error is apparent without a bill of exceptions.
Are the tax deeds to Lewis valid ? If he held the tax certificate for the taxes of 1858, at the time he purchased the equity of redemption at the foreclosure sale, what was the effect of such sale, and of the deed to him od the certificate ? It is plain that if any other person had purchased at such sale, he would have acquired all the title and interest of Lewis in the premises, and taken them discharged of any tax certificate Lewis then held. We think the same effect as to extinguishing *354tbe tax certificate must be given to tbe sale and deed to bim. If be purchased tbe certificate after tbe sale, sucb purchase was prima facia equivalent to a redemption from tbe tax sale; for when be purchased tbe equity, be purchased it subject to tbe tax liens and tbe first mortgage, and tbe premises became tbe primary fund out of which sucb liens were to be paid. As tbe owner of tbe equity, be could redeem from tbe tax sale; and tbe right of possession, and, we must presume, possession followed bis purchase of it. One who enters into possession of lands, under title, and enjoys tbe profits thereof, is under obligations to discharge tbe burdens which tbe law imposes upon tbe property for tbe support of government; and that, according to Lacey v. Davis, 4 Mich., 150, whether those burdens already existed as liens when be came into possession, or are thereafter created. This, it is said, is incident to every possession under title or color of title. To tbe same effect is Chambers v. Wilson, 2 Watts’ R., 495. As a general rule, tbe law does not permit one interested in land with others, all deriving their title from a common source, to acquire an absolute title to tbe land by tax deed, and thus cut off those interested with bim. This rule has been applied to tenants in common, mortgagor and mortgagee, so as to prevent tbe former acquiring tax title to tbe injury of tbe latter; and by parity of reasoning, we think, should be extended to tbe bolder of tbe equity standing in tbe place of tbe mortgagor. See Fuller v. Hodgdon, 25 Me., 243; 23 id., 46; Blackwell on Tax Tit., 470; 1 Aik., 306; 14 Vt., 532; 11 Ill., 322, 367; Platt v. St. Clair’s heirs, 6 Ohio, 93. It would be a fraud on tbe first mortgagee to permit Lewis, being in possession of tbe premises as tbe owner of tbe equity of tbe mortgagor — in possession of tbe premises which are tbe primary fund to pay tbe tax liens — through a tax deed made to bim while so in possession, to cut off tbe rights of tbe first mortgagee. If Lewis purchased tbe tax certificate for tbe taxes of 1858 after tbe foreclosure sale, and it was clearly bis intention when be purchased it, and justice required that it *355should be kept alive as a lieu superior to that of the first mortgage, a court of equity might perhaps so treat it on the foreclosure of the first mortgage; but he ought not to be allowed so to use it as by virtue of the tax laws to extinguish the rights of the mortgagee. If Lewis has no valid title under the deed for the taxes of 1858, it is clear that he has none under the subsequent deeds.
The judgment of the circuit court must therefore be reversed.