Opinion
No. 35332.
April 19, 1943.
1. SUBROGATION.
A mortgagee who, without being obligated to do so, discharges a superior lien on the mortgaged property in order to protect the lien of his mortgage may be subrogated to the right to enforce the lien discharged if necessary for the doing of complete justice between him and his mortgagor.
2. TAXATION.
Where deed of trust authorized grantee to pay taxes against property and provided that the amount thereof should then become a part of the indebtedness secured by the deed of trust, no necessity existed for subrogating grantee to the tax liens to the extent of taxes paid by grantee.
3. EQUITY.
Where deed of trust gave grantee the right to pay taxes against the property upon grantor's failure to do so and provided that the amount thereof should become a part of indebtedness secured by the deed of trust, and grantee permitted her right to resort to the mortgage lien for taxes paid to become barred by limitations, equity would not relieve grantee by granting her the right of "subrogation" to the liens of the taxing authorities.
4. EQUITY.
Overruling general demurrer to complaint seeking to have complaint subrogated to the liens of taxing authorities as against property covered by deed of trust, to the extent of taxes paid by complainant, was not error even though complainant had no right of subrogation, where there still remained for trial the claim for personal decree against defendant for taxes paid.
APPEAL from chancery court of Bolivar county, HON. R.E. JACKSON, Chancellor.
W.D. Jones and John T. Smith, both of Cleveland, for appellant.
A deed of trust becomes barred by the statute of limitations when the note secured thereby becomes barred, and, upon the completion of the period of time required for such bar, the deed of trust and all incidents thereto are barred, including the right to foreclose for additional advances made under the terms of such deed of trust.
McDaniel v. Short, 127 Miss. 520, 90 So. 186; Proctor v. Hart, 72 Miss. 288, 16 So. 595; Code of 1930, Secs. 2290, 2313; Jones on Mortgages (6 Ed.), p. 297, Sec. 358.
The rule that where a mortgagee payes taxes on mortgaged property to preserve the title from forfeiture to the state or a tax purchaser, the mortgagee will be subrogated to the lien of the state or municipality, although the lien for the protection of which the mortgagee paid the taxes turns out to be invalid, does not apply to one who had a valid lien for the payment of such taxes and, by negligence, permitted such lien to become barred, because the chancery court will grant no relief to a party whose complaint is based on his own negligence.
Federal Land Bank of New Orleans v. Newsom, 175 Miss. 114, 161 So. 864; Gum Carbo Co. v. New Orleans German Gazette, 90 Miss. 177, 43 So. 82.
Hugh F. Causey, of Cleveland, for appellee.
Appellee became subrogated to the rights and liens of the town and county.
Grenada Bank v. Young, 139 Miss. 448, 104 So. 166; Federal Land Bank of New Orleans v. Newsom et al., 175 Miss. 134, 166 So. 346; Atlantic Life Ins. Co. v. Klotz, 182 Miss. 243, 181 So. 519; Reid v. Yazoo M.V.R. Co., 74 Miss. 769, 21 So. 745; Ingersoll v. Jeffords, 55 Miss. 37; Robertson v. Sullivan, 102 Miss. 581, 59 So. 846.
The statute of limitations does not bar a claim held by subrogee for taxes paid by him, because the statute does not bar a claim held by the state or other public authority and such rights inure to the subrogee.
Griffing v. Pintard, 25 Miss. 173; Town of Crenshaw v. Panola County, 115 Miss. 891, 76 So. 741; Nugent Pullen v. Robertson, 126 Miss. 419, 88 So. 895; Robertson v. Weston Lbr. Co., 124 Miss. 606, 87 So. 120; Josselyn v. Stone, 28 Miss. 753; Partee v. Mathews, 53 Miss. 140, 144; Watts v. Eufaula Nat. Bank, 76 Ala. 474; McClure v. Johnson, 10 Okla. 668, 65 P. 103; Dodd v. Wilson, 4 Del. Ch. 399; Cathcart v. Bryant, 28 Wn. 31, 68 P. 171; Northwestern Nat. Bank v. Great Falls, etc., 23 Mont. 1, 57 P. 440; U.S.F. G. Co. v. Union Bank Trust Co., 143 C.C.A. 30, 228 F. 448, 453; American Bonding Co. v. National, etc., Bank, 97 Md. 598, 55 A. 395; Catlin v. Mills, 247 P. 1013, 47 A.L.R. 545, 547; Childs v. Smith, 51 Wn. 457, 99 P. 304, 130 Am. St. Rep. 1107; Constitution of 1890, Sec. 104; 25 R.C.L. 1394, Sec. 77.
If appellee's claim is subject to the bar of the statute of limitations, then the six-year statute applies and not the three-year statute.
Adams v. Yazoo M.V.R. Co., 71 Miss. 752, 15 So. 640; W.T. Raleigh Co. v. Fortenberry, 138 Miss. 410, 103 So. 227; Blodgett v. Pearl River County, 134 Miss. 816, 98 So. 227; Rather v. Moore, 179 Miss. 78, 173 So. 664; Milam v. Paxton, 160 Miss. 562, 134 So. 171; Sparks v. Childers, 47 S.W. 316, 318, 319; Zuelling v. Hemerlie, 60 Ohio State 27, 53 N.E. 447, 71 Am. St. Rep. 707, 709; Code of 1930, Secs. 2292, 2299.
Appellant filed a general demurrer and therein claimed that the right to collect all taxes was barred; therefore appellant cannot claim that taxes for any specific year are barred.
Robertson v. Sullivan, supra; Union Mortgage, etc., Co. v. Peters, 72 Miss. 1058, 18 So. 497; Griffith's Miss. Chancery Practice, Secs. 296, 297, 300.
The part of the debt which may be barred may be separated from the part not barred and such part not barred may be enforced.
Bell v. Clark et al., 71 Miss. 603, 14 So. 318; Herron et ux. v. Land, 151 Miss. 893, 119 So. 823.
Appellee has the right to enforce liens by suit in chancery.
McDonald v. Vinson, 56 Miss. 497; Smith et al. v. Cleveland Steam Laundry, Inc., et al., 131 Miss. 254, 95 So. 433.
Where a mortgage is invalid as a matter of law, but is good in equity, a court of equity will enforce it.
Burnet v. Boyd, 60 Miss. 627; Atkinson v. Felder, 78 Miss. 83, 29 So. 767.
The court below overruled a general demurrer to a bill of complaint and granted an appeal to settle the principles of the case. The appellee's bill of complaint alleges in substances that in November 1933 the appellant executed to her a deed of trust on real property to secure the payment of a promissory note due and payable in November 1934, which note the appellee still holds, with no payments thereon. The deed of trust, a copy of which is made an exhibit to the bill, provides that: "The undersigned further agrees to keep the taxes paid on said lands and on failure, so to do, the owners of the above indebtedness may pay the same and charge the amount as a part of the indebtedness secured hereby."
The appellee paid the taxes on this land for several years, default in the payment thereof having been made by the appellant. The bill "prays the court to state the indebtedness owing by said Sam Goosby to complainant by proper decree and decree that complainant is entitled to recover the same from said defendant, Sam Goosby, and decree that complainant be subrogated to all of the liens and rights of the Town of Shaw and Bolivar County as against said property, to the extent of such taxes so paid by complainant to the authorities of said town and county, and to enforce all of such liens and rights so decreed to complainant by a sale of said property under the orders of this court, so that complainant may recover all said sums so owing to her with legal interest thereon to the date of payment."
Counsel for the appellee admit that the note secured by this deed of trust is barred by limitation, and counsel for the appellant admit that the appellee could recover a portion of the taxes here paid by her in a court of law.
A mortgagee who, without being obligated so to do, discharges a superior lien on the mortgaged property in order to protect the lien of his mortgage may be subrogated to the right to enforce the lien discharged "if necessary for the doing of complete justice between" him and his mortgagor. But the appellee's case does not come within this rule for the reason that when she paid the taxes on this land the amount thereof automatically became "a part of the indebtedness secured" by the deed of trust executed to her by the appellant, consequently no necessity then existed for subrogating her to this tax lien. That she may have permitted her right to resort to this mortgage lien to be barred by limitations, as counsel assume, but as to which we express no opinion, resulted from her own fault from which equity will not relieve her. While the appellee's claimed right of subrogation does not here exist, the court below committed no error in overruling the appellant's general demurrer to the bill of complaint for the reason that without this claimed right of subrogation there remains for trial the appellee's claim for a personal decree against the appellant for the taxes paid by her, a part at least of which counsel for the appellant admit could be recovered by the appellee in an action at law. Atkinson v. Felder, 78 Miss. 83, 29 So. 767; Enochs-Flowers, etc., v. Bank of Forest, 172 Miss. 36, 157 So. 711, 159 So. 407.
Affirmed and remanded.