This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
Building & Loan Ass'n v. Waters, 50 S. C. 459, 27 S. E. 948. That the mortgagor's wife may purchase, see Wood v. Armour, 88 Wis. 488, 43 Am. St. Rep. 918, 60 N. W. 791.
9. Stears v. Hollenbeck, 38 Iowa, 550; Gibson v. Gilman, 71 Kan. 320, 80 Pac. 587; Phinney v. Day, 76 Me. 83; Brown v. Avery, 119 Mich. 384, 78 N. W. 331; Mac-Ewen v. Beard, 58 Minn. 176, 59 N. W. 942; United States Fidelity & Guaranty Co. v. Marks, 37 Nev. 306, 142 Pac. 524; Fallass v. Pierce, 30 Wis. 443. But that the transferee may purchase, if he did not assume the mortgage debt, see Zuege v. Nebraska Mortgage Co., 92 Kan. 272, 52 L. R. A. (N. S.) 877, Ann. Cas. 1916B 865, 140 Pac. 855. In State Mut. Building & Loan Ass'n of New Jersey v. Millville Improvement Co., 74 N. J. Eq. 721, 70 Atl. 300, 76 N. J. Eq. 336, 75 Atl. 1101, it was apparently decided that if a transferee of the mortgaged land had previously purchased at tax sale with the expectation of also purchasing from the mortgagor, he could not set up the tax title so acquired. The cases bearing on the right of the land owner to purchase at tax the title so acquired as against the senior mortgagee.10 In perhaps the majority of the jurisdictions in which the question has come up for decision, it has been decided that a mortgagee, having the right to pay the taxes on the land and to assert a claim for reimbursement, must take this method of protecting his interest in the land against the claim for taxes, and cannot, by purchasing the land at a sale for non payment of taxes, acquire a paramount title which he can assert as against the mortgagor.11-12 The courts do not clearly explain the grounds upon which this view is based, and not infrequently say little more than that since the mortgagor and mortgagee have a common interest in the payment of the taxes and in the protection of the property against tax titles, it is inequitable for one to acquire such a title and to assert it against the other, without, however, explaining why it is inequitable for the mortgagee, who owes no duty to the mortgagor to pay the taxes, thus to take advantage of the mortgagor's default in this regard. Occasionally the courts speak as if there were some sort of trust relation between the parties, which, however, is not the case.13 The more satisfactory ground upon which sale, as against the mortgagee, are conveniently collected in 52 L. R. A. (N. S.) 877.
10. Goodrich v. Kimberly, 48 Conn. 395; Eck v. Swennumson 73 Iowa, 423, 5 Am. St. Rep. 690, 35 N. W. 503; Frank v. Arnold, 73 Iowa, 370, 35 N. W. 453; Norton v. Metropolitan Life Ins. Co., 74 Minn. 484, 77 N. W. 298, 539.
11-12. Ross v. Frick Co., 73 Ark. 45, 83 S. W. 343; Middletown Sav. Bank v. Bacharach, 46 Conn. 513; Stinson v. Connecticut Mut. Life Ins. Co., 174 111. 125, 66 Am. St. Rep. 262, 51 N. E. 193; Fair v. Brown, 40 Iowa, 298; Eck v. Swennumson, 73 Iowa, 423, 5 Am. St.
Rep. 690, 35 N. W. 503;; Cone v. Wood, 108 Iowa, 260, 75 Am. St. Rep. 223, 79 N. W. 86 (purchase by mortgagee of co-owner); Maxfield v. Willey, 46 Mich. 252, 9 N. W. 271; Porter v. Corbin, 124 Mich. 201, 82 N. W. 818; Woodbury v. Swan, 59 N. H. 22; Hall v. Westcott, 15 R. I. 373, 5 Atl. 629; First Nat. Bank of Rapid City v. McCarthy, 18 S. D. 218, 100 N. W. 14; Shepard v. Vincent, 38 Wash. 493, 80 Pac. 777; Beckwith v. Seborn, 31 W. Va. 1, 5 S. E. 453; Burchard v. Roberts, 70 Wis. Ill, 5 Am. St. Rep. 148, 35 N. W. 286.
13. Ante, Sec. 611.
In states in which the mortgagee is not allowed, as against the mortgagor, to acquire title at a sale for taxes, a mortgagee would seem to be under the same disability as against a subsequent mortgagee.18
14. See Farmer v. Ward, 75 N. J. Eq. 33, 71 Atl. 401.
15. Spratt v. Price, 18 Fla. 289; Waterson v. Devoe, 18 Kan. 223; McLaughlin v. Acorn, 58 Kan. 514, 50 Pac. 441; Moore v. Boagni, 111 La. 490, 35 So. 716; Williams v. Townsend, 31 N. Y. 411; Smith v. Reher, 1 Grant (Pa.) 217; Price v. Salisbury, 41 Okla. 416, L. R. A. 1917B, 520, 138 Pac. 1024; Allen v. Dayton Hotel Co., 95 Tenn. 480, 32 S. W. 962.
16. See Schenck v. Kelley, 88 Ind. 444; Waterson v. Devoe, 18 Kan. 223; McLaughlin v. Acom, 58 Kan. 514, 50 Pac. 441; Brown v.
Simons, 44 N. H. 475; Ten Eyck v. Craig, 62 N. Y. 406 (dictum); Davis v. Hall, 52 Md. 673. In Miller v. Ziegler, 31 Kan. 417, 2 Pac. 601, the inability of the mortgagee to purchase at tax sale was based not only on his possession, but on the fact that his mortgage was in form an absolute deed, and that he claimed to be the owner, thus leading others to think that his purchase was merely a redemption from taxes.
17. Dusenberry v. Bidwell, 86 Kan. 666, 121 Pac. 1098.
18. See Davis v. Evans, 174 Mo. 307, 73 S. W. 512; Woodbury v.
One who is himself disabled to purchase the mortgaged property at tax sale can obviously not procure another to make the purchase in his behalf.19 But it has been held that one precluded from purchasing at tax sale may, in the absence of fraud or collusion, immediately purchase from one who had purchased at the tax sale, and obtained a tax deed.20