ARK.] FIRST NATIONAL BANK OF CORNING V. POLK. 643 ' FIRST NATIONAL BAI■TK OF CORNING V. POLK. Opinion delivered June 21, 1926. 1. i. TAXATIONLIEN . OF' AGENT . PAYING . TixEs. -Crawford &' Mosses' :Dig.;:§ 10053, 'does not sUbrogate 'an agent paying 'taxes':on lands td the lien„ Of the State, but only gives. a lien to the agent against .• • t • he : owne . r. 3 ,TAXATIQN—AGENT'S LIEN—pRIORITY OF MORTGAGE.—The lien :of ,a Mortgagee, executed by the owners of land aier the taxes thereon ' had beefi , p aid by an . g• 6: 1i 'at the oWner's request, is iiiperior, to 'agent's 'lien provided • by Ciawford & MOses' Dig., §1.0053. • - 3. APiTAL AND ERROR—CONCLUEIVENESS OF CHANCELLOR'S FINDING:— A finding of fact of the chancellor 'not clearly 'against tfie pre-:•: ponderance of • tbe testimony will be* sustained on. appeal.' • Ainieal from Clay Chancery Court, Eastern District ; J. M. Futrell, Chancellor ; *affirmed. ' • Beloit Taylor and 'W. E.' Spence,* for appellarit. G. B.' oli/ber, Jr., for appellee. • litAIPHREYS, J. This is an apPeal . froni a decree 'cif the chancerY-: court of Clay County, Eastern Dietria,Ais-mig sing the Cross-bill of appellant for the want of 'equity, filed iri, a second foreclosure : proceeding instituted' 'by appellee- against J.' N.. Moore and othOrs Iii the firS1 fbreclosUre p* roceeding,. aPpellee made appellant' a p*.ditST. beCauSe J: N. Moore had eXecnted Mortgage to apPel-, lant upon the lands mentioned in the mOrtgage; which he had. theretofore exeCuted to appellee, except the north half of the northeast quarter 'of section 8, tOvhiship 21: north; range 0 east: In the first foreclOsnie proceeding apPellant praYed for 0, foreclosure of:its mortgage After 'bah' appellant. 'and appellee had obtained' foreclosure deCrees, it Was ascertained that the landdeseribed above, Which was embraced in appellee 'S mortgage, had been sold for the taxes in 1919 to M/V. Diboeld, whO Wa's in posseisidn of same, claiming to be the owner thereof. J. N. Moore the mortgagor, instituted a separate ,stiit againstM. V. Diboeld to cancel the tax title. The instant or second- foreclosure proceeding was brought for the, purpose of collecting a part of the noteS which Were net due at the time the 'decrees were entered in the first fore-
544 FIRST NATIONAL BANK OF CORNING V. POLK. [171 closure proceeding. Appellant sought in its cross-bill to obtain a paramount lien for the taxes paid by it at the request of J. N. Moore upon a part of the land covered by appellee's mortgage and to obtain one-half of the eighty-acre tract of land which M. V. Diboeld claimed under a tax purchase, or one-half the proceeds which might be derived therefrom when sold under the foreclosure proceeding. Appellant alleged in its cross-bill that appel-lee's mortgage was dated January 1, 1920, and that the taxes upon the lands described therein for the'year 1919 had not been paid, and that it paid taxes to the amount of $411 for said year, at the request of J. N. Moore, upon certain lands embraced in appellee's mortgage but not embraced in its own mortgage. It also alleged that it entered into a contract with appellee to enaploy an attor: ney to assist his attorney in the prosecution of the suit instituted by J. N. Moore to cancel ' the tax title to the eighty-acre tract of land aforesaid hela by M. V. Diboeld, in•consideration that, if successful, they should divide said eighty-acre tract, Or the proceeds therefrom, equally between them. These allegations in the cross-bill were controverted by appellee. 'These issues were submitted on testimony introduced by the respective parties, which resulted in a decree to the effect that, appellant should take nothing on its cross-bill. . Ajapellant's first ontention for a reversal of .the decree is that the trial court erred in dismissing:its claim for taxes. It relies for a prior and paramount lien to the mortgage lien of appellee for the taxes paid by it upon § 10053 of Crawford & Moses' bigest, which is as follows : "Every 'attorney, agent, guardian, executor or administrator seized or having , care of lands as aforesaid, who shall be put to any trouble or expense in listing or paging the taxes on such lands, shall be allowed a reasonable compensation for the time spent, the -expenses incurred and the money advanced as aforesaid, which shall ibe deemed in all courts as a just charge against the person for whose benefit . the same shall have been advanced, and the same shall be preferred to all other
ARK.] FIRST NATIONAL BANK OF CORNING V. POLK. 545 debts or claims, and be a lien on the real_ estate as well as the personal- estate of the- person for.:whose benefit. the same shall have 'been advanced." - - ,•1 .• . It- will.be •obierVed that the statute does not .attempt to -subrogate the-agent paying the taxes at the , request of the owner to the lien of the State, but only gives a lien to the, agent against the owner. The taxes •were Paid by - appellant at.the request of J. N. Moore on April 10;1920, which payment satisfied the. lien of the State.- •Appellee.'s nfortkage was -executed July 7, 1920, and his:lien was superior to that of appellant. The payment :of : the 'taxes by-appellant was. just as if the taxes had been paid by. J. N:-Moore, the owner of the land. Moore could not have claimed. a .lien on account of -the Payment , of the taxes paramount to the mortgage lien of .hiA own- mOrtgagee. • Appellant next contends for a-reversal of the decree upon-the ground that the court erred in:finding frOna; the evidence that appellee had, not entered, into a contract with appellant to ,divide the eighty-acre tract aforesaid, or the' proceeds thereof; equally. between -them in case the tax titre thereto was canceled. • • -• - S. P . Lindsey,.cashier of the appellant bank, testified • upon this issue,.in substance, -as follows : That appellee informed- him that he was going to bring a 'suit to cancel the- tax•title of M..V. Diboeld to the eighty-acre tract of land,- and. proposed. to divide it equally.between 'appellant and himself if. appellant :would -employ an- attorney ,to assist his -attorney in prosecuting the_ suit . to -a successfUl isste; that he accepted the proposition; and employed. F. G. Taylor to assist appellee's-attorney, G. B. Oliver;-in the prosecution of the suit, for which he paid him: a ifee of. $50. - • • ' • F. G. Taylor-testified, in substance, as follOws he was employed by appellant tb assist G. B. Oliver in a suit brought by appellee in the name of J. N. Moore-0 cancel-a tax title held by M. B. Diboeld to the eighty-acre tract of land in question, and that, pursuant to the employment, he referred G. B. Oliver to the case of Earle v. Harris, 121 Ark. 621, which, in his opinion, concln-
546 FIRST NATIONAL BANK OF CORNING V. POLK. [171 sively settled the-issue involved in the suit for the cancellation Of the tax title in favor of appellee ; that he met Mr. Oliver in consultation several times, but that he took no part in looking up the record upon which the tax title was based ; that he rendered a bill of $50 to , appellant. for this serVice, which it paid. "G. -B. Olivet was introduced- as a witness by appel-lee and te§tified, in substance, as follows : that he advised appellee to propose to appellant to employ an attorney 'to assist him in the suit to cancel the tax-title claimed by.M. V. Diboeld to the eighty-acre tract in question ; that his reason for making the suggestion was that appellee had a mortgage on all of Moore's land; including the Dibbeld tract, and that appellant had a mortgage on a part of the same land not including the Diboeld tract ; that, under these circumstances, appellant would have a right to marshal the assets and request that appellee be first requested to -exhaust the land that appellant did- not have a mortgage -on, and in that way would be directly interested in appellee 's suit to recover the eighty-acre tract of land from Diboeld ; that appellee asked him to mention the matter to appellant ; that he explained the matter to Lind-SeY, 'who afterwards informed him that he. had procured Judge Taylor to assist him in the matter ; that, later, appellee brought- him a written contract providing-that, in case the tax title -was canceled, appellee woUld divide the eighty-acre tract, or the proceeds thereof, in a fore-do-sure proceeding, with appellant ; that the written agreement was entirely different from .the proposal he made to Lindsey, so he advised appellee -not to sign it, and that appellee followed his advice ; that, after appel-lee's refusal to enter into the written contract, he did not consult Taylor with reference to -the conduct of the cancellation suit, and that he received no assistance from Taylor in the prosecution theieof. In view of the fact that appellee refused to enter into the written contract submitted by appellant to him, and the further fact that Judge Taylor knew nothing personally of the alleged contract between Lindsey and Polk,
ARK. . 547 and the conflict in the testimony. of Lindsey and Oliver, we are unable to say that the finding of the chancellor is clearly against the preponderance of the testimony bearing upon this issue. • No error appearing, the decree is affirmed.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.