#### Hitchcock vs. Merrick.

A covenant in a mortgage for the payment by the mortgagor of all taxes that may be assessed upon the premises therein described, cannot be enforced after the mortgage debt is discharged. So *7iddf*where the mortgagee purchased the premises at the foreclosure sale for less than the amount of the judgment, and the deficiency was paid by the mortgagor, and the mortgagee was afterwards obliged to redeem the premises, which had been sold for certain taxes assessed upon them between the execution of the mortgage and the foreclosure sale.

APPEAL from the County Court of *Milwaukee*County.

In 1857, the defendant, Merrick, executed a mortgage to one William R Hitchcock, to secure the payment of $11,359.80 in three years, with interest. Said mortgage contained a covenant by the mortgagor to pay “all taxes and assessments of every nature that might be assessed upon the premises described therein, previous to the day appointed, in pursuance of any law of this state, for the sale of land for taxes.” Before the mortgage debt became due, the mortgagee died, and the plaintiff, *Thomas*Hitchcock, as one of his legatees, became the lawful owner and holder of the mortgage and of the bond to which it was collateral. On the 16th of July, 1860, there remained due and unpaid upon said bond and mortgage the whole of the principal and a considerable amount of interest; and the plaintiff commenced an action in the circuit court of said county to foreclose the mortgage, and on the 18th of February, 1861, judgment of foreclosure and sale was rendered in said action for $13,631.55 due on the bond, and $144.42 costs &c. Upon an appeal to the supreme court the judgment was affirmed, except as to the amount of costs, which was reduced to $96.62. At the foreclosure sale, on the 8th of November, 1862, the plaintiff purchased the premises, and continued to own and possess the same at the commencement of this action. The complaint herein, after alleging in substance the above facts, avers further that certain taxes and assessments for the years 1857,1858, 1859,1860 and 1861, were, after the execution of said mortgage, assessed and levied upon the mortgaged prem*358ises, which the defendant failed to pay previous to the day appointed by law for the sale of said premises for the non-payment of such taxes, and that the several lots comprised in said mortgaged premises were respectively sold for such taxes. The times at which and the amount for which such sales were made, are specified at length in the complaint. It is further alleged that the defendant never Redeemed said lots, or any of them, from such sales; that on the 20th of December, 1862, all of the certificates of such tax sales were outstanding and unredeemed, and the plaintiff was obliged to purchase and did purchase them in order to protect his title; that the amount necessarily paid by him for that purpose was $1660.90and that he has demanded repayment of that sum from the defendant, who refuses to pay the same. The plaintiff therefore demands judgment against the defendant for the sum last mentioned, with interest &c.

The defendant demurred to the complaint, as not stating a cause of action; -and the demurrer was overruled. The defendant then answered, alleging that before the commencement of the action the entire debt secured by the bond and mortgage mentioned in the complaint had been fully satisfied; that plaintiff purchased the mortgaged property at the foreclosure sale for $15,300, leaving a balance of $98.04 only, due on the judgment, which the defendant afterwards, before the commencement of the action, paid to the plaintiff; that there was no consideration for the covenant to pay taxes and assessments set out in the complaint, except the loan of the sum of money which the bond and mortgage were given to secure, and that said covenant was merely incidental and collateral to said bond, and when the money so secured was paid, said covenant was thereby satisfied and discharged. The answer further denies that any taxes or assessments legally levied upon the mortgaged premises for the years mentioned in the complaint, remained unpaid at the times fixed by law for the sale of lands for delinquent taxes of those years respectively.

*359On tbe trial, tbe plaintiff offered evidence to sustain tbe allegations of tbe complaint in regard to tbe non-payment by tbe defendant of taxes and assessments levied upon tbe mortgaged premises, tbe sales of tbe land for sucb delinquent taxes and assessments, and tbe redemption of tbe land by plaintiff by payment of tbe amount due on tbe tax certificates. He also read in evidence tbe judgment of foreclosure and sale against tbe defendant and others, mentioned in tbe complaint in this action, tbe sheriff’s report of tbe sale, tbe order confirming tbe report, and tbe personal judgment for. a deficiency of $98.04; and admitted that said judgment for deficiency was paid by tbe plaintiff before tbe commencement of this action. Tbe defendant asked tbe court to instruct the jury that they must find for tbe defendant, but this instruction was refused. Other instructions were asked by tbe defendant and refused, which need not be stated here. Tbe jury found for tbe plaintiff for tbe amount claimed by him, except tbe taxes of 1857. A motion by tbe defendant for a new trial was denied, and judgment entered upon tbe verdict, from which the defendant appealed.

*Jason*Downer, for appellant,

to the point that, *Hitchcock*having bought tbe land without warranty and taken a title equivalent to a quit-claim deed from tbe parties to the suit, subject to tbe outstanding tax liens, tbe land was tbe primary fund for tbe payment of tbe tax liens, and tbe covenant to pay taxes was extinguished, cited *Tice v. Annin,*2 Johns. Ch., 125; *Cox v.*Wheeler, 7 Paige, 248; *Halsey v. Deed,*9 id., 446; *Marsh v.*Pike, 10 id., 595 ; 2 Barb. Ch., 618 ; 2 Denio, 595 ; 10 Johns., 481. 2. Counsel also contended that tbe covenant to pay taxes was merely collateral or incidental to the mortgage lien or debt, and that tbe payment of tbe debt or extin-guishment of tbe lien before tbe mortgagee bad paid any taxes, extinguished that covenant, and also extinguished the right of tbe mortgagee as sucb to pay tbe taxes and claim tbe benefit of tbe mortgage as a lien for their repayment. 8. The coven*360ant to pay taxes does not run with the land — certainly not *after breach*(Rawle on Cov. Tit., 3d ecL, 336, and note, and authorities cited; also p. 346); and therefore *Hitchcoch*had no remedy on the covenant *aspurchaser.*

*Butler & Gottrill,*for respondent,

contended that if the action were regarded as one of covenant only, the judgment below was correct, because the covenant to pay taxes was in fact an independent covenant; it was broken while plaintiff had only the interest of a mortgagee in the land; by reason of that breach he had suffered damage to the amount that he was obliged to pay for taxes; and the damages had never been paid, and payment could be obtained only through a judgment in this action. 2. Plaintiff had a right to expect, up to the time of the sale, that defendant would pay the foreclosure judgment, and hence was justified in not advancing the taxes until after that time. 3. The principle that should govern this case is settled in *Jones v.*Gostigan, 12 Wis., 677. It is there held that the mortgagee or his assignee could maintain an action after the sale against the mortgagor for an injury to the estate, committed before the sale, which lessened its value ; and that although the commission of the injury might have been prevented by injunction. The injunction would have been issued on the ground of the contract implied by law from the relation of the parties. Here there is an express covenant against the act by which plaintiff was injured. Does it alter the case that there the mortgagee let the property be sold for its value less the amount it had been injured, and that here the’plaintiff bid in the property himself and has since been obliged to pay the taxes which the defendant covenanted to pay ? 4. The foreclosure sale is merely an involuntary conveyance of the mortgagor’s interest in the land;’and covenants relating to the land pass as much by such a conveyance as by a voluntary one. Rawle on Cov., 352, 362.

*By the Court,*

DixoN, C. J.

The counsel for the plaintiff *361correctly observed that this is a case of the first impression, and our impression is decidedly against him. We do not think that there can be an action upon the covenant of the mortgag- or to pay taxes after the extinguishment of the mortgage. On the contrary, we fully agree with the counsel opposed, that the covenant is collateral and subordinate to the debt, and that when the debt is extinguished the covenant can serve no further purpose. It is in the nature of an additional security for the payment of the debt — a provision inserted in the mortgage to guard against the lien being displaced and defeated by reason of the non-payment of the accruing taxes. Without the debt and the consequent lien of the mortgage, the mortgagee has no interest in the payment of the taxes, and whether they are paid or not he can suffer no injury. If, after the tax sales in this case, the defendant had extinguished the debt by voluntary payment to the plaintiff, no one will say that the plaintiff could then have maintained an action against the defendant upon the covenant, though the taxes were still unpaid or the mortgaged premises unredeemed. This conclusion necessarily-follows from a consideration of the essential qualities of a mortgage and of the rights of the mortgagee, as defined by all the authorities. A mortgage is regarded in the light of a chose in action — an incident attached to the debt, and which cannot be detached from its principal. Distinct from the debt, it is incapable of assignment and has no determinate value. The extinguishment of the debt extinguishes the mortgage for every available purpose. *Blunt v.*Walker, 9 Wis., 348; *Mowry v.*Wood, 12 Wis., 429 et seq., and cases there cited. As part and parcel of the mortgage, the covenant to pay taxes expires with the mortgage. It is no more capable of separation from the mortgage than the mortgage from the debt. It ceases with the debt for the better protection of which it was made, and can perform no office after the debt has been paid. Now if this is true where the mortgagor voluntarily pays the debt, we think the same must be true where the mortgagee extinguishes *362tbe debt by buying in tbe mortgaged premises at tbe foreclosure sale. Both are payments, tbe one voluntary tbe other compulsory under tbe mortgage. In either case tbe debt is satisfied, and the lien of tbe mortgage, to which tbe covenant is annexed, is extinguished. We cannot distinguish tbe effect upon tbe covenant, whether tbe debt is satisfied in one form or tbe other. Tbe mortgagee bolds no longer as such, but as purchaser, tbe functions of the mortgage being already fully performed. As purchaser be stands upon tbe same footing witb any other purchaser not previously connected witb the foreclosure proceedings, and must be supposed to have purchased witb reference to tbe value of tbe mortgaged premises subject to all valid existing incumbrances, whether for taxes or otherwise. Having it in his power, by proper steps before judgment and sale, to protect himself against tbe taxes, but choosing not to take them, but to proceed to a sale subject to tbe taxes and to bid tbe amount of tbe debt, be says, in effect, that tbe mortgaged premises are a sufficient security notwithstanding tbe taxes, and that be is content to take them subject thereto. Tbe present plaintiff having done this, we think be has debarred himself from all right, or claim under the covenant.

Tbe judgment of tbe county court must therefore be reversed, and tbe cause remanded with directions that it be dismissed.