Osterberg v. Union Trust Co.

delivered the opinion of the court.

We are unable to perceive that the appellant is entitled to the relief which he seeks.'

1. The taxes for 1875 were, at the date of the decree, a subsisting lien- upon the mortgaged property, and he had not only constructive but actual notice of its existence. It is true that the title of a purchaser at a judicial sale under a degree of foreclosure takes effect by relation to the date of the mortgage, and defeats any subsequent lien or incumbrance.- A lien for taxes does not, however, stand upon the footing of an ordinary incumbrance, and is not displaced by a sale under a pre-existing judgment or decree, unless otherwise directed by statute. It attaches to the res without regard to individual ownership, and when it is enforced by sale pursuant to the statute, prescribing the mode of assessing and collecting them, the purchaser takes a valid and unimpeachable title. But if the doctrine were otherwise, and if the rule of caveat emptor had. no application to this case, we are not aware of any principle which would justify withholding from the mortgagee any of the' moneys *429derived from the sale of the mortgaged property, with a view to the application of them to satisfy such a lien. This is not a controversy between incumbrancers. It is, in effect, a proceeding by a purchaser at a- judicial sale to apply a portion of his bid to the partial discharge of an incumbrance to which, he admits that the property in his hands is’ subject. Even if the law had not imposed on, the purchaser the burden of discharging it, the terms- of sale, as announced by the master, clearly did so.

2. He has no rightful claim to any part of the earnings of the road whilst it remained in the possession of the receiver, nor is he in a position to question the orders of the court, as to the application of those earnings. The road would have been surrendered to him at an earlier date had he punctually complied with the,terms of the; sale ; but the' court, under the peculiar circumstances of the case, extended to him an indulgence in making the required payments. In thé mean time, the road remained in the custody of the receiver, and its earnings were devoted to the payment of current expenses and other meritorious claims.

3. Nor has the appellant a right to the money and government bonds which came to the hands of the receiver from Henry Curtis and Cornelius Lynde. So soon as they were relieved from the trust upon which these persons held them, they belonged in equity to the bondholders. The purchaser could acquire no right to them, as he bought only the property which the decree directed to be sold; and it did not order the sale of this' fund, nor did the master attempt to sell it. If the deed of the receiver to Osterberg is broad enough in its language to cover this fund, it is to that extent void, as he was only authorized to convey the property previously described in the decree and sold by the master at the sale.

Decree affirmed.