Bourquin v. Bourquin , 120 Ga. 115 ( 1904 )

Lamar, J.

The trustee Bourquin failed to pay the taxes. The land was bought at tax sale by Kaufman. Immediately after the expiration of the redemption year Kaufman conveyed to Bourquin in his individual capacity: The latter and his representative now insist that as Kaufman was an innocent purchaser, he acquired a valid title to the trust property at tax sale, and could convey as good a title to Bourquin as he could have made to any one else. A fiduciary is bound to exercise the diligence of a prudent man in protecting the property committed to his care. He is liable for negligence or bad faith in permitting its total destruction by a sheriff’s sale, on the same principle that he is responsible for its partial destruction by waste or mismanagement. Civil Code, §§3170, 3200. If the property is incumbered by a lien, he can not sit idly by and allow the estate to be sacrificed, but is bound to the exercise of diligence to prevent an improper foreclosure, or an improper or disadvantageous.sale. The trustee here could have advanced the taxes, and would have been entitled to a lien for his reimbursement. Or if, as claimed, he had no individual or trust funds which could have been applied to that purpose, and if in the exercise of proper efforts he had been unable to borrow or to make other arrangements to pay or carry the taxes (Printup v. Trammell, 25 Ga. 240; Thompson v. Thompson, 77 Ga. 699 (4); Harrison v. Mock, 16 Ala. 616; Fishbeck v. Gross, 112 Ill. 208 (3); King v. Cushman, 41 Ill. 31 (4); Freeman v. Tompkins, 1 Strobh. Eq. (S. C.) 53; Burr v. McEwen, 1 Baldwin, 154, 162), no reason appears why he could not have applied to the chancellor for an order to sell a portion of the lot, or to mortgage the entire property so as to save at léast a part of the corpus for the beneficiary. Civil Code, §§ 4863, 3172. And if in spite of all his efforts it had been brought to the block, he was bound, to have made like diligent efforts to redeem within the year. Good faith was his duty, and that alone is his protection. Rogers v. Dickey, 117 Ga. 821. He could not buy at his own lawful sale. For a stronger reason he could not buy at a sale brqught about by his own unlawful conduct. He can not make a personal profit in dealing with the trust property either by act of omission or of commission. Civil Code, §§ 3010, 3183.

One who is under the obligation to pay taxes can not directly or indirectly purchase at a sale caused by his own default. Such attempted purchase will be treated as payment. Pol. Code, § 904. When, therefore, Bourquin individually took a deed to the trust property from Kaufman, he unintentionally corrected the wrong of which he had previously been guilty, and the original status was restored; and whether this deed is treated as a redemption before the expiration of the twelve months, or as an independent purchase after the redemption year, the title to the land wrongfully allowed to be sold for taxes was thereafter held by him under tire trust as it existed prior to his breach of duty. “It would be a gross fraud -in him to suffer the land to be sold for these very taxes he was bound to pay, lie by until the day of redemption was gone, buy in at the price of redemption the title of the purchaser, and then set up that title against that which he had undertaken to guard.” Coxe v. Walcott, 27 Pa. St. 159; Dubois v. Campau, 21 Mich. 370. Nor would the result be changed, by the fact that in addition to the bid and ten per cent, he paid Kaufman $30, the amount of other tax liens against the estate. In both cases he holds the redeemed property in trust for his son Polignac, but with a right to reimbursement for all sums expended in the protection of the property. If there was no collusion in the bidding or redemption, and if Kaufman was an innocent purchaser, this makes no difference. The principle that one without notice can convey to one with notice (Civil Code, § 3938) is subject to an exception where the transfer is back to him who was guilty of the actual or constructive fraud in first transferring, or in permitting the property to be transferred to an innocent purchaser. When the title revests in the wrong-doer, the original equity will reattach to it in his hands. It has been so held in reference to the transfer of negotiable papers, and the same exception applies' in regard to real property. Kennedy v. Daly, Sch. & Lef. 379 ; Clark v. McNeal, 114 N. Y. 287. See Andrews v. Robertson, 54 L. R. A. 673, and note. Compare Civil Code, § 3184. Were this not the rule, nothing would' be easier than for a trustee to take' advantage of his own wrong. It would only be necessary for him to make or permit a wrongful sale, in his individual capacity buy from the innocent purchaser, and then rely on the conveyance back as a shield with which to protect himself when sued for the very property which in the first instance through a breach of duty he allowed to he sold. /

Pending suit there was a second tax sale ; but we find it unnecessary to pass on the question as to whether, since the adoption of the Code of 1895, §.778, trust property or property belonging to Polignac Bourquin could lawfully be sold under an execution against Gugie Bourquin as an individual, if aided by parol evidence that the execution was intended to represent taxes on that' lot. Kile v. Fleming, 78 Ga. 5; McLendon v. Horton, 95 Ga. 60; Burns v. Lewis, 86 Ga. 599. Nor is it necessary to consider whether, in view of its recitals, it might be treated as an execution in rem ; nor to determine whether the sale was void because the levy was excessive. For whether the sale was valid or not, the tender by Polignac Bourquin of the bid and ten per cent, defeated whatever interest Guillemain Bourquin acquired by virtue of the tax sale. Where a creditor refuses to accept a proper tender, the claim is not extinguished, nor is the debtor harmed by the refusal. He still has his money. He may lend it or use it in business. If, however, he wishes to stop the running of interest, or to prevent the accrual of costs, he must keep the tender good. Civil Code, §3728. But where the creditor has collateral, mortgage, or other form of security upon the property of the debtor, the failure to accept a legal tender discharges the lien which was intended to secure payment. When it has accomplished its purpose it ought not longer to be effective against him who has done all required by the law or the contract to cancel the mortgage or to regain possession of the pledge. The debtor offers the money*for the two-fold purpose of paying his debt and redeeming his property. The creditor may indeed decline to receive what is due, but he can not couple with his declination a refusal to cancel the lien or surrender that which thereafter belongs to the debtor free from the incumbrance. The debtor may wish to use the property pledged. He may wish to sell that which is incumbered, and by the act of the creditor in refusing proper tender he is prevented from having and using his own. It is evident that to allow such results would often work manifest hardship; and hence the rule, recognized by most of the authorities, is that upon the proper tender being made, while the original debt may continue, the lienor is entitled to a satisfaction of the lien or to be restored to possession of the property. One of the ways for enforcing this right is the provision that the refusal of a proper tender discharges' the lien. The debt continues, “ but the tender is equivalent to payment as to all things which are incidental or accessorial to the debt. The creditor by refusing to accept does not forfeit his right to the thing tendered [money], but he does lose all collateral benefits or securities." Tiffany v. St. John, 5 N. Y. 314; McCalla v. Clark, 55 Ga. 53. The same principle is applicable to a bender made by the owner for the purpose of redeeming from a tax sale, under the Political Code, § 909. Thereafter the purchaser’s incohate, qualified, or defeasible estate terminates. Lamar v. Sheppard, 84 Ga. 561 (2). Burden v. Bean (Ark.), 12 S. W. 241; Legro v. Lord, 10 Me. 161; Poindexter v. Greenhow, 114 U. S. 270 (3).

Here, therefore, when Polignac tendered to Guillemain the amount of the latter’s bid and ten per cent, added thereto, the plaintiff was entitled to possession of the land. The defeasible title of the purchaser was at an end, and, whatever might be his rights as to the amount of the bid and penalty, he could no longer rely on the sheriff’s deed as against him who offered to redeem and made the tender required by law. The two tax deeds having been nullified, in the one case by the conveyance from Kaufman to the trustee, and in the other by the offer of the plaintiff to pay the redemption money within the time allowed by law, the defendant was without title, the plaintiff had made out a perfect paper title, and the verdict in his favor was demanded by the evidence.

The verdict against the defendant for mesne profits shows on its face.that it included rent for the period that the land was in the hands of the receiver. Presumably he collected whatever rents accrued during that term. At any rate there is nothing to suggest that the defendant was in possession. A new trial must therefore be granted on the ground of the motion assigning error as to the improper allowance for mesne profits. But" as there

have already been six trials of this case and there should be an end of litigation, we direct that the issue on the next trial be confined exclusively to a consideration of the question of mesne profits and the claim of set-off by the defendant.

Judgment Affirmed in part, and reversed in part, with direction.

All the Justices concur.