WILLIAM EDE COMPANY, Appellant, v. WILLIAM B. HEYWOOD et al., Respondents, 153 Cal. 615

ANGELLOTTI, J. Plaintiff appeals upon the judgment-roll alone from the judgment in favor of the defendants. The action is to recover money alleged to have been paid by the plaintiff to the use of the defendants. The facts are as follows: On the first Monday of March, 1905, the defendant William B. Pleywood was the owner and holder of a duly recorded mortgage on certain land in San Francisco, and on that date the taxes for that year on his interest as such mortgagee became a lien on the said interest (Pol. Code, sec. 3718). This interest for purposes of taxation is an interest in the land (Const., art.

XIII, sec. 4; Pol. Code, sec. 3627). On April 19, 1905, this mortgage was fully paid and satisfaction thereof entered of record. On June 1, 1905, the land was conveyed by Louis Friedlander and Jennie Friedlander, his wife, and F. K. Houston and Mary F. Houston, his wife, the owners thereof, by their grant, bargain, and sale deed, to plaintiff. The aforesaid taxes on the mortgage interest were duly assessed and- levied. On November 1, 1905, plaintiff gave notice to said defendant that said taxes remained unpaid, and demanded that said defendant pay the same, which he then and ever since has refused to do.

On November 27, 1905, being the last day for payment before delinquency, plaintiff paid the taxes. Said defendant, although requested so to do, has ever since refused to pay to plaintiff the amount so paid. Upon these facts, the trial court concluded that plaintiff was not entitled to recover, and gave judgment for defendants.

The case before us is simply that of one who has purchased real property with the title burdened by an encumbrance done, made, or suffered by the grantor, or some-one claiming under him, seeking to. recover the sum that he has paid to discharge such encumbrance, not from his grantor or his heirs, but from a third person with whom he has not and never had any contractual relation whatever. This was _ exactly the case of McPike v. Heaton, 131 Cal. 109, [82 Am. St.

Rep. 335, 63 Pac. 179], where the plaintiffs had purchased land subject to a tax-lien, which should have been paid by the defendant to whom the property was assessed, but who was not plaintiffs’ immediate grantor and bore no contractual relation to them. It was held that the covenant against encumbrances done, made, or suffered by the grantor or any .person claiming under him, implied from the use of the word “grant” in the conveyance made by plaintiffs’ grantor (Civ. Code, sec. 1113), which included taxes (Civ.

Code, sec. 1114), did not run with the land, or pass to the assignee, and that as plaintiffs had no contractual relation tuith defendant, no recovery against him could he had. That without some contractual relation, there could be no obligation on the defendant so far as the plaintiffs were concerned. It was said: “They could have protected themselves against these taxes either by assuming their payment as a part • of the consideration for the purchase, or by suitable covenants with Jackson” (their grantor), “but they have no right of action therefor against the defendants.” In Canadian etc. Co. v.

Boas, 136 Cal. 419, [69 Pac. 18], it was held that a mortgagee who had obtained title to the property by foreclosure proceedings, could not recover of a junior mortgagee whose interest in the property had been extinguished by the foreclosure proceedings, the amount paid by it in redeeming the property from a sale to the state for taxes assessed against such junior mortgagee on such junior mortgage.

This decision was based on the proposition that there was no contractual relation whatever between the plaintiff and defendant with respect to the moneys sued for, and it was said that the plaintiff was in no different position from that of any other purchaser of land who finds his title clouded. The case of Henry v. Garden City Bank etc., 145 Cal. 54, [78 Pac. 228], was substantially the same in facts and in result. (See, also, Bock v.

Gallagher, 114 Mass. 28.) All of these cases proceed upon the theory that one who buys property from another takes it just as it is, regardless of the nature of the title, or the number or character of liens resting upon it, except in so far as he is protected by contract. Independent of contract, neither his immediate grantor nór any other person is under any obligation to make perfect the title for him, or discharge any encumbrance or lien on the property. By reason of

section 1113 of the Civil Code, certain covenants on the part of the grantor for himself and his heirs are implied from the use of the word “grant” in any conveyance by which an estate of inheritance or fee simple is to be passed, unless otherwise expressly provided in the conveyance, and the right of the grantee to reimbursement from the grantor and his heirs for money necessarily paid by him to discharge encumbrances so covenanted against, thus rests on the terms of his contract.

It is impossible to distinguish these cases from the case at bar, and under the doctrine declared thereby, the conclusion of the learned judge of the trial court was correct. Appellant relies strongly upon the case of San Gabriel Co. v. Witmer Company, 96 Cal. 623, [29 Pac. 500, 31 Pac. 588]. There can be no doubt that its contention finds support in the conclusion reached in that case, but that case, decided by a bare majority of this court, and the case of Angus v.

Plum, 121 Cal. 608, [54 Pac. 97], decided upon the authority of the former case, have been practically overruled by the later decisions already cited, so far as the same might be held applicable under the circumstances appearing in this case. As to the defendant William H. Heywood, the judgment would be right, even if the contention of appellant as to the law applicable were to be upheld. He was the original mortgagee, and the record shows that on April 24, 1904, he •duly assigned and transferred the mortgage upon which the fax was assessed to the defendant William B. Heywood.

As .he was not the owner of the mortgage interest on the first Monday of March, 1905, he, of course, was never liable for the tax. The judgment is affirmed. Lorigan, J., Ilenshaw, J., and McFarland, J., concurred.