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should not be heard to urge against the mortgagee the invalidity of the apparent tax thus paid. Search of the authorities lends support to such contention. A mortgagee authorized by the mortgage to pay taxes is not obliged to determine at his peril the validity of an apparent tax regularly appearing upon the proper tax records as a tax, lien, and cloud upon the title of the mortgage security, when such property was, at all times, legally subject to taxation, and where, had the proceedings been regular, the tax would have been unassailable. To hold otherwise would make every mortgagee hazard his money against the validity of the tax, while permitting the mortgagor to allow his supposed taxes to become delinquent, and thus indirectly shift upon the mortgagee the burden of suffering a lien or cloud to remain upon his mortgage security, or determine by suit at his own expense the validity of the tax any time the mortgagor thus sees fit to assert against him its invalidity. Had the mortgagee al lowed this property to have gone to tax sale six months later and then obtained a certificate on sale of the property, it would have been protected even though, as here, the taxes had been, under direct attack, void, because defendants would not have been heard to question the tax without a tender of the amount equitably due. Noble v. McIntosh, 23 N. D. 59, 135 N. W. 663; Tee v. Noble, 23 N. D. 225, 135 N. W. 769. Merely because the mortgagee elected to pay the tax instead of allowing the penalties to increase should not place it in equity in a worse position than it would have been as a purchaser at a sale for said tax. More especially is this true as here it appears that neither the mortgagors nor the mortgagee knew of the irregularities or defect in the assessment. The mortgagors intended to pay this tax. They did not even notify the mortgagee of their reasons for defaulting in its payment. Had they done so and the mortgagee have consented thereto, a different situation would be presented. The same would hold true had the mortgagors promptly tendered the amount of the tax and penalties paid back to the mortgagee before exercise by it of its power of sale under said mortgage because of such default. It is true that the position of the plaintiff bank as to acceleration of unearned interest by means of this foreclosure seems to be harsh. But this is a case where equity must follow the law, and the basis for the law is in the contract, the mortgage. To hold otherwise would announce a rule of property that might play havoc with settled property rights.

In support of the foregoing conclusions are the following authorities: Southard v.

Dorrington, 10 Neb. 119, 4 N. W. 935; American Nat. Bank v. Northwestern Mut. L. Ins. Co. 32 C. C. A. 275, 60 U. S. App. 693, 89 Fed. 610; Williams v. Hilton, 35 Me. 547, 58 Am. Dec. 729; Bates v. People's Sav. & L. Asso. 42 Ohio St. 673; Weinreich v. Hensley, 121 Cal. 647, 54 Pac. 254; Windett v. Union Mut. L. Ins. Co. 144 U. S. 581, 36 L. ed. 551, 12 Sup. Ct. Rep. 571. Judge Maxwell in Southard v. Dorrington announces the rule, in a case exactly parallel in facts with this, to be: "When the payment of taxes assessed on real estate is necessary to protect the security, the mortgagee may pay the same and have the amount paid added to the mortgage debt as expenses necessarily incurred in protecting the security.

But the courts look with jealousy upon the demands of the mortgagee beyond the payment of his debt, as increasing the difficulties in the way of the right to redeem. But where the land is liable to taxation, and taxes, if legally assessed, would be a legal charge upon the same, and there are no special circumstances showing the tax to be unjust or inequitable, a court of equity will not declare such tax void because some of the formalities necessary to make a tax deed valid have not been complied with. A party relying upon a tax deed relies upon his title, and must stand or fall upon that; but if he seeks to enjoin the collection of taxes, he must offer to do equity by paying, or offering to pay, what in justice he should pay; nor in such case is the mortgagee required to permit the land to be sold, when such sale would impair his security for the debt." And, further: "In an action at law for the possession of the premises under a tax deed, the answer would be sufficient in all probability, but not in a proceeding in equity to have the taxes, which appear to have been lawful in themselves, declared null and void. In such case the party must state facts showing his right to equitable relief."

And foreclosure was awarded although the taxes would have been invalid considered as a foundation for a tax deed. From Windett v. Union Mut. L. Ins. Co. supra, is the following: "The defendant argued that the plaintiff could not be allowed for the taxes, because they had been extinguished by the tax sales and deeds, and could not recover on the tax titles, because they were void, and because equity would not enforce them. But the plaintiff did not set up the tax deeds as a ground of suit, but only as evidence of clouds upon his title, arising out of the mortgagor's own neglect to pay the taxes. It is at least doubtful, upon the evidence, whether Gage did not give notice to the tenants of the tax sales; and there is no evidence whatever of any invalidity in the

taxes, the sales, or the deeds in any other respect. In this state of things the mortgagee was not bound to take the risk of contesting the tax titles, and the sums paid to extinguish those titles were reasonable expenses chargeable to the mortgagor by the terms of the mortgage."

the latter in proceedings to obtain a tax
judgment against the land under the 1897
Woods law. The same is true of Morrill
v. Lovett, 95 Me. 165, 56 L.R.A. 634, 49
Atl. 666, cited by respondents, where bill in
equity was brought to remove a cloud upon
real estate erroneously assessed as owned
by a dead person, and where the law under
which the assessment was made created a
personal liability secured by lien on the
specific real estate. Clark v. Coolidge, 8
Kan. 189, was
on a special assessment.

The California supreme court in Weinreich v. Hensley, 121 Cal. 647, at page 657, 54 Pac. 254, has this to say in a parallel case: "Whether the form of the assessment was such as would have defeated an action for its collection, or would have conferred While somewhat parallel the facts are conno title upon the purchaser at a sale undersiderably different, and the reasoning is una judgment for its foreclosure, is not the satisfactory. That decision seemed to have test of the plaintiff's right to recover the turned upon estoppel arising from the conamount paid for its discharge. The assess-duct of the parties. Likewise, Vermont ment created at least an apparent cloud upon the title to the mortgaged premises, and to the extent of such cloud impaired the sufficiency of the security."

Loan & T. Co. v. Tetzlaff, 6 Idaho, 105, 53 Pac. 104, involving right of foreclosure of usurious mortgage, is not authority; nor is Herriott v. Potter, 115 Iowa, 648, 89 N. W. 91, involving an inheritance tax.

Our conclusion is that the mortgagee had the right to pay this tax as a tax after its delinquency and without actual notice of its invalidity, though the assessment was fatally defective; that in so doing it discharged the land from a taxation liability, and to that extent relieved and preserved the security therefrom; that though the assessment might be held void for indefinite

Foreclosure was allowed for assessments concededly void, where the mortgagee had paid the same in good faith and without actual notice of the invalidity. In the instant case, as is said in Bates v. People's Sav. & L. Asso. 42 Ohio St. 655, this property was taxable for the year in question whether legally taxed or not; and the payment by the mortgagee paid a tax, inasmuch as it relieved taxable property from a liability for a valid tax to which the prop-ness of description of property in an action. erty could and presumptively would have been subjected subsequently on the state discovering the invalidity of assessment for this particular year. In fact, then, this mortgagee has paid what the state must treat as its tax, and to that extent relieved the mortgagors from a tax burden.

Had

the mortgagors paid this void assessment, they would have discharged a tax liability against them. The act of the mortgagee by their authorization under the mortgage clause likewise inures to their benefit, and is to be treated as their own act in such respect. They should not be heard to deny the legality of such payment any more than as though they themselves had paid the purported tax and later in other proceedings should attempt to collaterally repudiate both their act and the tax.

We have examined all the cases cited to the contrary, and some distinction on facts is found in all of them not present in this case. For instance, in Scott v. Society of Russian Israelites, 59 Neb. 571, 81 N. W. 624, it appears that the property upon which the mortgagee paid taxes was not subject to general taxation, it being held for religious and charitable use. Leavitt v. Bell, 55 Neb. 57, 75 N. W. 524, and Wells County v. McHenry, 7 N. D. 246, 74 N. W. 241, were direct attacks upon the tax itself, the former in an action to foreclose a tax lien,

wherein the validity of the tax could be raised, it would be inequitable to permit the mortgagors here to assert that the tax is invalid in this action; that defendants were in default under the terms of the mortgages, and plaintiff mortgagee is entitled to a judgment of foreclosure accordingly.

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plies to an unmarried man having illicit intercourse with a married woman, although another statute expressly provides punishment of an unmarried woman having illicit intercourse with a married man.

Bishop, Statutory Crimes, 656; 2 Greenl. Ev. § 48; Com. v. Call, 21 Pick. 509, 32 Am. Dec. 284; Com. v. Lafferty, 6 Gratt. 672; Cook v. State, 11 Ga. 53, 56 Am. Dec. 410; Smitherman v. State, 27 Ala. 23; Buchanan v. State, 55 Ala. 154; Respublica v. Roberts, 1 Yeates, 6; Hull v. Hull, 2 XCEPTIONS by respondent to rulings Strobh. Eq. 174; Hunter v. United States,

(January 23, 1915.)

E of the Caledonia County Court made 1 Pinney (Wis.) 91, 39 Am. Dec. 277.

during the trial of an information charging respondent with adultery, which resulted in his conviction. Overruled.

The facts are stated in the opinion. Mr. Joseph Fairbanks, for respondent: Under § 5881 of the Public Statutes, an unmarried man who has illicit intercourse with a married woman does not commit adultery.

court in STATE V. BIGELOW explained this lack of harmony by the statement that "In the jurisdictions holding that a single man is not guilty of adultery for sexual intercourse with a married woman, there is either, as was held in Respublica v. Roberts, 1 Yeates, 6, a compelling uniform practice, or some peculiar language of the statute, or, what is more often the case, they adopt the ecclesiastical, and not the common-law, definition of adultery. In those jurisdictions which adhere to the commonlaw definition, it is held that a single man is guilty of adultery, even in the absence of any express declaration in the statute." Accepting the court's statement as the true explanation of the diversity of opinion, the question arises: Was it necessary for the courts to choose between the commonlaw and the ecclesiastical-law theories? The court in STATE V. BIGELOW did not consider itself obliged to do so, for the reason that "the amendment recognized the true theory, and extended our statute so as to include what would be adultery by ecclesiastical law, but in no way restricted the common-law definition of the term." This, of course, adopts the common-law definition, and adds the substance of the ecclesiastical-law definition because of the peculiar wording of the statute. This basis of the holding of necessity makes it one for limited application. But a theory has been advanced, based upon broader grounds, which leads to the same conclusion as was reached by the court in STATE V. BIGELOW. Thus, in State v. Holland, 162 Mo. App. 678, 145 S. W. 522, it was held that "it is true that the common law of England was adopted by our statute, and by that law a married woman was necessary to the crime of adultery. But the canon law changed this by substituting a more unrestricted definition, and as thus changed it was brought to this country by the colonists. 'Adultery, according to the definition thus established, is sexual connection between a man and a woman, one of whom is lawfully married to a third person; and the offense is the same whether the married person in the adulterous connection is a man or a

Mr. N. A. Norton for the State.

Taylor, J., delivered the opinion of the court:

This is an information for adultery. The respondent pleaded guilty, and thereupon moved in arrest of judgment on the ground that no offense is charged in the information. The motion was overruled, to

ac

woman. The Roman law being in this respect superseded, this definition was cepted by every Christian state at the time of the colonization of America, and is, no doubt, part of the common law brought with them by the colonists of all Christian nationalities. That it corresponds with a sound judicial philosophy is illustrated by the fact that it is incorporated in the codes of the principal continental European states.' 2 Whart. Crim. Law, 10th ed. § 1719. By the common law of England adultery was not punishable as a crime. It has been made punishable in most of the American states, not as a common-law offense, for, as just said, it was not an offense under that law, but in response to the moral sense, which finds expression in the canon law. It is in that sense that it is made punishable by our statute, and in that sense ought the word to be defined and interpreted. An examination of the cases in this state leaves the question somewhat embarrassed. Thus, in slander it has been ruled that an unmarried woman cannot commit adultery. Adams v. Hannon, 3 Mo. 222; Christal v. Craig, 80 Mo. 367. But in criminal actions under this statute, it has not been deemed essential to a successful prosecution that the woman should have been married. In State v. Crowner, 56 Mo. 147, the information was against both the man and woman, and did not charge the woman to be married, nor did the proof show it. The contrary is to be inferred. In State v. Chandler, 132 Mo. 155, 53 Am. St. Rep. 483, 33 S. W. 797, the offense is defined at pages 160, 161 of the report, without including a necessity that the female must be a married woman. And so it was in State v. Bess, 20 Mo. 419, where the prosecution was against both parties. In State v. Coffee, 75 Mo. App. 88, a conviction of both parties was sustained by the St. Louis court of appeals, though the woman was unmarried. It is thus seen that, under the rulings on this statute, an unmarried woman may be guilty of adultery if her illicit intercourse is with a married man. The statute means that if either party to the intercourse be married,

which the respondent excepted. There was judgment and sentence, the execution of which was stayed, and the cause passed to this court.

The information charges, with proper allegations of time and place, that the respondent, a single man, carnally knew one a married woman, then and there having a lawful husband living, naming him, and not then and there being the wife of the respondent, and that he did then and there commit the crime of adultery with the said The contention of the respondent is that a single man who has illicit sexual intercourse with a married woman is not guilty of adultery, in the absence of a statute to that effect.

both are guilty of adultery. No one would deny that proof by a complaining wife in an action for divorce, that her husband had had carnal connection with an unmarried woman, would sustain her charge of adultery. There is no reason to suppose that the legislature meant to make any different definition of the act in a criminal prosecution. Com. v. Call, 21 Pick. 509, 32 Am. Dec. 284. One is a public scandal and the other private; but each, in result, tending to the disorder and demoralization of society."

So, it may be said that some courts have adopted the common-law definition, others the ecclesiastical-law definition, and still others have combined the two definitions, which in effect makes both parties guilty if either or both were married to a third person at the time the offense was committed. In Rich v. State, 1 Ala. App. 243, 55 So. 1022, it was held that "the term 'adultery' as used in our statutes means illicit in tercourse between two persons of different sexes, one of whom is married to another person." But see statement by the court in Buchanan v. State, 55 Ala. 154, as cited in the earlier note, which statement. would qualify the above definition, or rather limit its application to the married person, the unmarried one being guilty of fornication.

In Zackery v. State, 6 Ga. App. 104, 64 S. E. 281, it was held that "to constitute the crime of adultery in this state, both parties to the criminal act must be married persons at the time of its commission." This holding is broader than was necessary to dispose of the case, for apparently the man was the defendant, and it seems to have been his marriage that was in question. See Kendrick v. State, 100 Ga. 360, 28 S. E. 120, as cited in the earlier note, for wording of the statute and a holding such as would have sufficed to dispose of the case in Zackery v. State.

In People v. Martin, 180 Ill. App. 578, it was held that "adultery is sexual intercourse of a married person with a person other than the offender's husband or wife," and that a married man commits the crime by having intercourse with an unmarried

This claim finds support among some text writers and in the decisions of a few states cited in respondent's brief. See Bishop, Stat. Crimes, §§ 655-657; 2 Greenl. Ev. § 48; Respublica v. Roberts, 1 Yeates, 6; Com. v. Lafferty, 6 Grått. 672; Hunter v. United States, 1 Pinney (Wis.) 91, 39 Am. Dec. 277. While reference to the question has been made in our decisions, it raised in this state. The question turns appears never before to have been squarely upon the definition of the term "adultery," as used in Pub. State. § 5881, upon which this prosecution is based. This statute does not define the offense, but punishes what was known as adultery under the common law, referring to it by name; so we must look to that source for its definition. State woman. This is in harmony with the holding in Lyman v. People, 198 Ill. 544, 64 N. E. 974, as cited in the earlier note.

An unmarried woman cannot commit the crime of adultery within the meaning of a criminal statute that does not define the term. Re Cooper, 162 Cal. 81, 121 Pac. 318 (another statute defined the term for divorce purposes, but apparently this conclusion would have been reached independently of the statutory definition).

In State v. Chafin, 80 Kan. 653, 103 Pac. 143, it is held that adultery cannot be committed by an unmarried person. An unmarried man was charged with the crime of adultery with a married woman. The court refers to its holding in Bashford v. Wells, and the note thereto in 18 L.R.A. (N. S.) 580; and in State v. Ling, 91 Kan. 647, 138 Pac. 582, the holdings in both former cases were approved and made the basis of a holding that an indictment for adultery may be brought against one person without joining the other party as a defendant.

In California the Code defines adultery as "the voluntary sexual intercourse of a married person with a person other than the offender's husband or wife." Under this section an unmarried person cannot commit the crime of adultery. Ex parte Sullivan, 17 Cal. App. 278, 119 Pac. 526. This is the same statute to which the court referred in Ex parte Cooper, supra, and the court here regarded it as defining the crime for the purposes of the criminal statute.

In Oregon the statute defines the crime in such language that a married man may be convicted of adultery with an unmarried woman. State v. Case, 61 Or. 265, 122 Pac. 304. Likewise, an unmarried man with a married woman. State v. Ayles, Or. 145 Pac. 19. And Utah also has a similar statute, i. e., one that makes both parties liable to be convicted if either is married to a third person. State v. Greene, 38 Utah, 389, 115 Pac. 181.

As to construction and effect of statute

requiring prosecution to be upon complaint of husband or wife, see note to State v. Wesil, 19 L.R.A. (N.S.) 786. J. W. M.

v. Clark, 83 Vt. 305, 308, 75 Atl. 534, Ann., on the part of the man is material. Cas. 1912A, 261.

On

this question the common law furnishes no direct authority; for, as we have seen, adultery was not an indictable offense at common law. That the wrong involved the man as well as the unfaithful wife is perfectly apparent. If we recur to the source from which the common-law idea of adultery sprung, we shall see that it regarded the man and woman alike. It found its root in the Mosaic law which provided: "If a man be found lying with a woman married to an husband, then they shall both of them die, both the man that lay with the woman and the woman." Deut. xxii. 22; Lev. xx. 10.

Adultery was a private wrong at the common law as it existed at the time of its adoption by our legislature, but was an offense against the ecclesiastical law. As known to the common law, as distinguished from ecclesiastical law, adultery consisted of sexual intercourse by a man, married or single, with a married woman, not his wife. The circumstance on which adultery depended at common law was the possibility of introducing spurious issue; in other words, its tendency to adulterate the issue of an innocent husband and turn the inheritance away from his own blood to that of a stranger. 1 R. C. L. 633, and The common-law idea of adultery precases cited. At the same time the ecclesias- vailed in the Mosaic law, for by the latter tical law dealt with unlawful sexual comthe man was condemned, not because he merce as a breach of the marriage vow, and had violated his matrimonial vow, but punished only the married party for adul-"because he hath humbled his neighbor's tery, while as to the unmarried person the wife." Deut. xxii. 24. offense was fornication. Bashford v. Wells,

78 Kan. 295, 18 L.R.A.(N.S.) 580, 96 Pac. 663, 16 Ann. Cas. 310 and note. The latter view of adultery is embodied in Pub. Stat. § 5882, which declares that a married man and an unmarried woman, who commit an act which would be adultery if such woman were married, shall each be guilty of adultery. State v. Clark, supra. The adoption in 1818 of what is now Pub. Stat. § 5882 as an amendment of the statute of 1797, which made adultery an indictable offense, clearly indicates that the common-law, and not the ecclesiastical, meaning of the term, was employed in the original statute, for other wise the amendment would have been unnecessary.

Consideration of the opposing theories of adultery at common law and in the ecclestical courts makes it apparent that in the former there was no reason for distinguishing between a married and a single man, the particeps being a married woman; while in the latter the guilt inhered in the breach of the marriage vow, and so the offense could not be committed by an unmarried person, man or woman. Respondent's counsel argues that the amendment of 1818 shows that, but for the statute (now Pub. Stat. § 5882), an unmarried particeps would not be guilty of adultery in this state. The argument loses sight of the common-law theory of adultery. The amendment recognizes the true theory, and extended our statute so as to include what would be adultery by ecclesiastical law, but in no way restricted the commonlaw definition of the term.

It remains to consider whether, under the common-law definition of adultery, our statute makes both parties to the act guilty of the offense, or whether the fact of marriage

Turning to the decisions of our sister states that have made adultery an indictable offense without defining the term, we discover a well-defined line of cleavage between them. In the jurisdictions holding that a single man is not guilty of adultery for sexual intercourse with a married woman, there is either, as was held in Respublica v. Roberts, supra, a compelling uniform practice, or some peculiar language of the statute, or, what is more often the case, they adopt the ecclesiastical, and not the common-law, definition of adultery. In those jurisdictions which adhere to the common-law definition, it is held that a single man is guilty of adultery, even in the absence of any express declaration in the statute. State v. Wallace, 9 N. H. 515; Smitherman v. State, 27 Ala. 23; State v. Pearce, 2 Blackf. 318; State v. Connoway, Tappan, 58; note in 16 Ann. Cas. 314. See Hood v. State, 56 Ind. 263, 26 Am. Rep. 21; 2 Am. Crim. Rep. 165; State v. Weatherby, 43 Me. 258, 69 Am. Dec. 59; Com. v. Call, 21 Pick. 509, 32 Am. Dec. 284; State v. Lash, 16 N. J. L. 380, 32 Am. Dec. 397; 1 R. C. L. 631.

Having adopted the common-law definition of adultery, we regard it as the settled law of this state that any man, married or single, having voluntary sexual intercourse with a married woman, not his wife, is guilty of adultery under Pub. Stat. § 5881. State v. Searle, 56 Vt. 516; State v. Bisbee, 75 Vt. 293, 54 Atl. 1081, 15 Am. Crim. Rep. 460. The fact that the question has never before reached this court is a strong indication that the profession has not seriously doubted the view we now adopt. A uniform practice of more than a century, while it does not make the law, as said in Respublica v. Roberts, is strong

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