Canadian & American Mortgage & Trust Co. v. Boas

Majority

p. 419

[S. F. No. 2015.

Department Two.

May 28, 1902.]

THE CANADIAN AND AMERICAN MORTGAGE AND TRUST COMPANY, Appellant, v. JUDAH BOAS, Respondent.

Headnote

Mortgages—Foreclosure—Title in Prior Mortgagee—Sale for Taxes on Second Mortgage—Redemption—Action for Reimbursement.— A prior mortgagee, who acquired title under foreclosure of Ms mortgage in which a second mortgagee was a party, and thereafter- re

p. 420

deemed from a sale for taxes upon the second mortgage, has no privity of contract with the second mortgagee, and no statutory right, which can sustain an action for reimbursement for the payment of such taxes against the second mortgagee.

Id.—Loss ot Title by Second Mortgagee—Money not Paid for His Use—Cloud upon Title.—The money paid by the first mortgagee in redeeming from the tax sale under 'the second mortgage was not paid for the benefit of the second mortgagee, whose entire interest in the property had been first taken by the state for taxes, and afterwards entirely swept away by the judgment, sale, and deed under foreclosure. The first mortgagee was in no different position from that of any other purchaser of land who finds his title clouded.

APPEAL from a judgment of the Superior Court of the City and County of San Francisco. J. C. B. Hebbard, Judge.

The facts are stated in the opinion of the court.

Vincent Neale, for Appellant.

Lucius L. Solomons, for Respondent.

This is an appeal by plaintiff from a judgment in favor of defendant. The appeal is upon the judgment-roll alone.

The facts found by the court are these: Appellant was a first mortgagee of the described premises, and respondent was the assignee of a junior mortgage. Appellant brought an action to foreclose his mortgage, making respondent a party defendant, and obtained a judgment foreclosing all respondent’s interest in the premises, and decreeing a sale thereof. Appellant bought the property at the sale, having bid the full amount of his judgment, and after the expiration of the period of redemption obtained a deed of conveyance. In the mean time, however, respondent not having paid the taxes assessed on his said second mortgage, his interest in the latter was sold for the taxes and bought in by the state. The appellant, after his deed made pursuant to the foreclosure, paid to the state the amount for which respondent’s mortgage interest had been sold for taxes, together with costs, percentages, etc., under section 3817 of the Political Code, and then brought this action to recover said amount from respondent.

We see no ground upon which the action could be main

p. 421

tained. There was no contractual relation whatever between appellant and respondent with respect to the money sued for. It is not within any of the provisions of our constitution or statutory law touching the right of a mortgagee, when foreclosing his mortgage, to add to the amount of his foreclosure judgment any moneys which he had paid for taxes on the property which his mortgagor ought to have paid, and which the law expressly allows him to include in his judgment. The judgment and lien created by the tax on respondent’s second mortgage interest had been satisfied and removed by the sale to the state. (Pol. Code, sec. 3716.) The money paid by the appellant to the state was not for the benefit of respondent, whose entire interest in the property had been first taken by the state for taxes, and afterwards had again been entirely swept away by the judgment of foreclosure. The appellant is in no different position from that of any other purchaser of land who finds his title clouded.

The judgment appealed from is affirmed.

Henshaw, J., and Temple, J., concurred.