WHITEHEAD et al. v. FARMERS' LOAN & TRUST CO., 98 F. 10

ADAMS, District Judge, after stating the case as above, delivered the opinion of the court. The only question presented for our determination is whether the order for an interlocutory injunction was warranted by the aver-ments of the bill. Counsel for appellee, in argument and brief, disclaim any contention that there was any irregularity in the assessr ment of the property of the railroad company, and admit that the taxes for the year 1893, as well as for the year 1.894, were legally assessed, and never paid by the railroad.

The bill in no way challenges ike regularity of the sale of the railroad property to Palmer, except that there was au attempt to segregate a part of the railroad track from the entire line, as well as from the franchise of the railroad company, and to sell the same substantially as real estate is sold under execution in the state of Colorado. The bill does not aver that the amount demanded by Whitehead as due him by virtue of his ownership of the certificate of purchase and subsequent payment was in excess of the amounts paid by him, with the accumulated statutory interest.

There are no averments showing that the appellee, or any one else, prior to the institution of this suit, ever offered to refund to Whitehead the amount due him, or that the appellee was ready to pay the same to Whitehead as a condition to obtaining the relief sued for. The order for the interlocutory injunction appears to have been made without imposing any such condition upon the appellee.

The serious contention presented by counsel for the appellee is that the sale of the track of the railroad situated in Jefferson county, segregated from the balance of the line and from the franchise of the company, was not warranted by law, and this court is asked to declare such a sale void, and, as a result, thereof, to affirm the unconditional order awarding an interlocutory injunction in this case.

Counsel for appellants take issue with this main contention of the appellee, and further insist that the appellee’s bill is without equity, because unattended with any payment or offer to pay the amount of taxes conceded to have been paid by Palmer and the appellant Whitehead for the years 1893 and 1894, with the accumulated intereist thereon. In the view we have taken of this case, the last question is the only one which at the present time demands attention.

The appellee, the complainant below, being the trustee in the mortgage referred to, represents the bondholders, who, according to the averments of the bill and exhibits filed therewith, are, to all intents and purposes, the owners of the railroad property. The burden of paying the taxes upon the property, therefore, rests upon them, and the consequences of nonpayment concern them alone. In other, words, the appellee, as representative of the bondholders, to all equitable intent and purpose, stands in the shoes of the railroad company.

It was therefore the equitable duty of the appellee to attend to the payment of all taxes lawfully assessed against its property as and when due; and, notwithstanding any irregularities in subsequent proceedings looking to the enforcement of the state’s lien for such taxes, it remained the duty of the appellee to pay and satisfy all just and lawful taxes, with accrued charges, until such time as the duty should be performed.

If this duty be neglected until the state or some of its municipalities are forced to resort to the process of law to enforce its performance, it is not apparent how the equitable obligation is thereby lessened. Accordingly, it is our opinion that the appellee cannot invoke the aid of a court of equity to relieve it from the consequences of some irregularity in proceedings rendered necessary by its default, without first doing equity by paying, or offering to pay, as a condition to the relief sought, the amount which it, or those it represents, justly and fairly owe. State Railroad Tax Cases, 92 U. S. 575, 23 L.

Ed. 669; Bank v. Kimball, 103 U. S. 732, 26 L. Ed. 469; Chicago, B. & Q. R. Co. v. Board of Com’rs of Norton Co., 32 U. S. App. 227, 67 Fed. 413, 14 C. C. A. 458; Charlton v. Kelly, 24 Colo. 273, 50 Pac. 1042. The general doctrine of the foregoing cases we do not understand to be seriously questioned by counsel for appellee.

It is practically conceded, as we understand, that, if this was a proceeding against Jefferson county or any of its officers to restrain the collection of the tax, it could not be maintained without a precedent offer to pay the amount of tax justly due; but it is contended that Whitehead, the appellant, stands in a different attitude from that of the officers of the county; that he is a mere volunteer, and purchased the property, not because he had any personal interest to protect, but merely as and for an investment; that the taxes, by reason of the payments by Whitehead, have been fully paid to the county; and that neither the county nor its officers have any longer any interest in the matter, and accordingly that the injunction constitutes no interference with the collection of taxes.

We are unable to appreciate the force of this distinction. The state of Colorado has provided a legislative scheme, not only for assessing taxes, but for securing their prompt payment.

As a part of this scheme, purchasers at delinquent tax sales, in the event of redemption by the owner, are allowed to demand, as a condition to the exercise of that right, not only the amount paid by them at the sale, but also 1he amount of subsequently accruing' taxes paid by them, with liberal interest on the money so employed until the right of redemption is exercised, and, in the event of no redemption by the owner, are entitled, after a lapse of time fixed by the statute, to a conveyance by the county treasurer of the lands which were purchased by them at the tax sale. Sections 3900, 8905, Mills’ Ann. St.

Colo. If the officers of the state, or any municipal subdivision of the state, cannot be interfered with in the performance of their duty by the owner, until he shall do equity by paying the'taxes justly due, it is, in our opinion, equally true and important that the purchasers who come to the aid of the state in the performance of its functions should not be interfered with without a like offer to do equity.

If the sale to such purchaser is irregular, or if, for any reason other than that the land was not subject to taxation, it is ineffectual to carry title, it is not reasonable that such purchaser should he deprived of equitable protection a,nv more than the officers of the county who take the first step towards collecting the revenue. The efficiency of the whole scheme must be maintained, or it fails to accomplish its purpose.

If it were understood that a purchaser at a sale of lands for delinquent taxes is a mere volunteer, and not entitled to the protection of equitable principles in case of the invalidity of the sale because of some mere irregularity attending it, there would probably be few purchasers, and, as a result, the machinery of the state for securing its revenue would be seriously crippled. We see no reason why a rule should be applied to tbis case different from that applicable to one which might have been brought against the officers of the county in an earlier stage of the process of collecting its revenue.

The following authorities sustain this conclusion: Willson v. Brown, 82 Ind. 471; Morrison v. Jacoby, 114 Ind. 84, 14 N. E. 546, and 15 N. E. 806; City of Logansport v. Case, 124 Ind. 254, 24 N. E. 88; Charlton v. Kelly, supra. It is further contended by counsel for appellee that the fact that the property of the railroad company is in the custody of the court, through its receiver, is of itself sufficient to secure an interlocutory injunction; and ibis, for the reason that the execution of the deed by the county treasurer would constitute, an unwarrantable interference with property in custodia legis.

Counsel rely in support of this contention upon the cases of Clark v. McGhee, 31 C. C. A. 321, 87 Fed. 789. and In re Tyler, 149 U. S. 164, 13 Sup. Ct. 785, 37 L. Ed. 689. In the first of these cases it appears that, after the receiver bad taken possession of property, an assessment for taxes unassessed for previous years was made by the state authorities. The validity of this assessment was disputed by the receiver, and the court very properly held that, until its validity could he tried and determined, the hands of the executive officers of the state should be stayed.

In the other case it appears that the state officers levied for the satisfaction of taxes upon 14 cars of the railroad then in actual use for conducting the business by the receiver in charge. The receiver brought his bid for an injunction, alleging the illegality of a part of the assessment, the payment of all taxes admitted to be due, and the injury to the business of the railroad occasioned by the seizure of cars necessary for, and actually used in, carrying on the business of the receiver.

The allegations of the bill in that case show a physical invasion of the custody of the receiver, — an actual and forcible seizure of the property in his hands. In addition to this, there was a real controversy with respect to the liability of the property for the payment of the taxes involved. Neither of these facts exists in the case now under consideration. Here there was no seizure of any property, and no interference, or threatened interference, with the receiver’s possession or custody, but only an attempt to perfect an incipient title by taking the required statutory steps to that end.

If a deed should be executed by the treasurer to Whitehead, and he should attempt to take possession of the property conveyed to him, the court in charge of the receiver will undoubtedly be able to protect his possession, when disturbed or threatened to be disturbed, with due consideration to the rights of all parties interested in the same. In this way the court can assert its lawful right to exclusive custody and control, and the state will not be embarrassed by any unwarranted interference with its own process for collecting its revenue.

The interlocutory injunction was, in our opinion, improperly granted, and the order awarding the same is hereby vacated and annulled.