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should not be heard to urge against the Dorrington, 10 Neb. 119, 4 N. W. 935; mortgagee the invalidity of the apparent American Nat. Bank v. Northwestern Mut. tax thus paid. Search of the authorities L. Ins. Co. 32 C. C. A. 275, 60 U. S. App. lends support to such contention. A mort. 693, 89 Fed. 610; Williams v. Hilton, 35 gagee authorized by the mortgage to pay Me. 547, 58 Am. Dec. 729; Bates v. People's taxes is not obliged to determine at his peril Sav. & L. Asso. 42 Ohio St. 673; Weinreich the validity of an apparent tax regularly v. Hensley, 121 Cal. 647, 54 Pac. 254; Winappearing upon the proper tax records as dett v. Union Mut. L. Ins. Co. 144 U. S. 581, a tax, lien, and cloud upon the title of the 36 L. ed. 551, 12 Sup. Ct. Rep. 571. Judge mortgage security, when such property was, Maxwell in Southard v. Dorrington announat all times, legally subject to taxation, ces the rule, in a case exactly parailel in and where, had the proceedings been regu- facts with this, to be: “When the payment lar, the tax would have been unassailable. of taxes assessed on real estate is necessary To hold otherwise would make every mort- to protect the security, the mortgagee may gagee hazard his money against the validi. pay the same and have the amount paid ty of the tax, while permitting the mort- added to the mortgage debt as expenses nec. gagor to allow his supposed taxes to become essarily incurred in protecting the security. delinquent, and thus indirectly shift upon

But the courts look with jealousy the mortgagee the burden of suffering a upon the demands of the mortgagee beyond lien or cloud to remain upon his morty: ge the payment of his debt, as increasing the security, or determine by suit at his own difficulties in the way of the right to reexpense the validity of the tax any time the deem. But where the land is liable to taxmortgagor thus sees fit to assert againstation, and taxes, if legally assessed, would him its invalidity. Had the mortgagee al. be a legal charge upon the same, and there lowed this property to have gone to 'tax are no special circumstances showing the sale six months later and then obtained a tax to be unjust or inequitable, a court of certificate on sale of the property, it would equity will not declare such tax void because have been protected even though, as here, some of the formalities necessary to make the taxes had been, under direct attack, void, a tax deed valid have not been complied because defendants would not have been with. A party relying upon a tax deed reheard to question the tax without a tender lies upon his title, and must stand or fall of the amount equitably due. Noble v. Mc- upon that; but if he seeks to enjoin the colIntosh, 23 N. D. 59, 135 N. W. 663; Tee v. lection of taxes, he must offer to do equity Noble, 23 N. D. 225, 135 N. W. 769. Mere. by paying, or offering to pay, what in jusly because the mortgagee elected to pay tice he should pay; nor in such case is the the tax instead of allowing the penalties mortgagee required to permit the land to be to increase should not place it in equity in sold, when such sale would impair his sea worse position than it would have been curity for the debt.” And, further: "In as a purchaser at sale for said tax. More an action at law for the possession of the especially is this true as here it appears premises under a tax deed, the answer would that neither the mortgagors nor the mort. be sufficient in all probability, but not in gagee knew of the irregularities or defect a proceeding in equity to have the taxes, in the assessment. The mortgagors intend which appear to have been lawful in themed to pay this tax. They did not even noti- selves, declared null and void. In such case fy the mortgagee of their reasons for de the party must state facts showing his right faulting in its payment. Had they done to equitable relief.” so and the mortgagee have consented there. And foreclosure was awarded although the to, a different situation would be presented. taxes would have been invalid considered The same would hold true had the mort. as a foundation for a tax deed. From Wingagors promptly tendered the amount of the dett v. Union Mut. L. Ins. Co. supra, is the tax and penalties paid back to the mortga- following: “The defendant argued that the gee before exercise by it of its power of sale plaintiff could not be allowed for the taxes, under said mortgage because of such de because they had been extinguished by the fault. It is true that the position of the tax sales and deeds, and could not recover plaintiff bank as to acceleration of unearned on the tax titles, because they were void, interest by means of this foreclosure seems and because equity would not enforce them. to be harsh. But this is a case where equity | But the plaintiff did not set up the tax deeds must follow the law, and the basis for the as a ground of suit, but only as evidence of law is in the contract, the mortgage. To clouds upon his title, arising out of the hold otherwise would announce a rule of mortgagor's own neglect to pay the taxes. property that might play havoc with settled | It is at least doubtful, upon the evidence, property rights.

whether Gage did not give notice to the In support of the foregoing conclusions tenants of the tax sales; and there is no are the following authorities: Southard v.' evidence whatever of any invalidity in the



taxes, the sales, or the deeds in any other, the latter in proceedings to obtain a tax respect. In this state of things the mort judgment against the land under the 1897 gagee was not bound to take the risk of con- | Woods law. The same is true of Morrill testing the tax titles, and the sums paid to v. Lovett, 95 Me. 165, 56 L.R.A. 634, 49 extinguish those titles were reasonable ex. | Atl. 666, cited by respondents, where bill in penses chargeable the mortgagor by the equity was brought to remove a cloud upon terms of the mortgage.”

real estate erroneously assessed as owned The California supreme court in Wein- by a dead person, and where the law under reich v. Hensley, 121 Cal. 647, at page 657, which the assessment was made created a 54 Pac. 254, has this to say in a parallel personal liability secured by lien on the

"Whether the form of the assessment specific real estate. Clark v. Coolidge, 8 was such as would have defeated an action Kan. 189, was a special assessment. for its collection, or would have conferred while somewhat parallel the facts are conno title upon the purchaser at a sale under siderably 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. assess- duct of the parties. Likewise, Vermont ment created at least an apparent cloud up-Loan & T. Co. v. Tetzlaff, 6 Idaho, 105, 53 on the title to the mortgaged premises, and Pac. 104, involving right of foreclosure of to the extent of such cloud impaired the usurious mortgage, is not authority; nor sufficiency of the security.”

is Herriott v. Potter, 115 Iowa, 648, 89 N. Foreclosure was allowed for assessments W. 91, involving an inheritance tax. concededly void, where the mortgagee had Our conclusion is that the mortgagee had paid the same in good faith and without the right to pay this tax as a tax after its actual notice of the invalidity. In the in- delinquency and without actual notice of stant case, as is said in Bates v. People's its invalidity, though the assessment was Sav. & L. Asso. 42 Ohio St. 655, this prop- fatally defective; that in so doing it diserty was taxable for the year in question charged the land from a taxation liability, whether legally taxed or not; and the pay and to that extent relieved and preserved ment by the mortgagee paid a tax, inas- the security therefrom; that though the asmuch as it relieved taxable property from sessment might be held void for indefinitea liability for a valid tax to which the propness of description of property in an action erty could and presumptively would have wherein the validity of the tax could be been subjected subsequently on the state dis- raised, it would be inequitable to permit the covering the invalidity of assessment for mortgagors here to assert that the tax is this particular year. In fact, then, this invalid in this action; that defendants were mortgagee has paid what the state must in default under the terms of the mortgages, treat as its tax, and to that extent relieved and plaintiff mortgagee is entitled to a the mortgagors from a tax burden. Had judgment of foreclosure accordingly. 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

VERMONT SUPREME COURT. clause likewise inures to their benefit, and

STATE OF VERMONT is to be treated as their own act in such respect. They should not be heard to deny the

BERT BIGELOW. legality of such payment any more than as though they themselves had paid the pur

(- Vt. ,

92 Atl. 978.) ported tax and later in other proceedings should attempt to collaterally repudiate Adultery intercourse between unmarboth their act and the tax.

ried man and married woman. We have examined all the cases cited to A statute providing for the punishment the contrary, and some distinction on facts of adultery without defining the offense apis found in all of them not present in this

Note. Effect of fact that but one of For instance, in Scott v. Society of the parties is married upon the ofRussian Israelites, 59 Neb, 571, 81 N. W. fense of adulterywithin the penal 624, it appears that the property upon which statutes. the mortgagee paid taxes was not subject to general taxation, it being held for re- This note supplements the note to Bashligious and charitable use. Leavitt v. Bell,

ford v. Wells, 18 L.R.A.(N.S.) 580, on the 55 Neb. 57, 75 N. W. 524, and Wells County | note will show that there is a division of

same subject. A reference to the earlier v. McHenry, 7 N. D. 246, 74 N. W. 241, opinion among the courts as to the effect were direct attacks upon the tax itself, the of one of the parties being unmarried at former in an action to foreclose a tax lien, the time the offense was committed. The



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plies to an unmarried man having illicit Bishop, Statutory Crimes, 656; 2 Greenl. intercourse with a married woman, al- Ev. § 48; Com. v. Call, 21 Pick. 509, 32 though another statute expressly provides Am. Dec. 284; Com. v. Lafferty, 6 Gratt. punishment of an unmarried woman hav- 672; Cook v. State, 11 Ga. 53, 56 Am. Dec. ing illicit intercourse with a married man.

410; Smitherman v. State, 27 Ala. 23; (January 23, 1915.)

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,

E .


quring the trial of an information charging Mr. N. A. Norton for the State.
respondent with adultery, which resulted
in his conviction. Overruled.

Taylor, J., delivered the opinion of the
The facts are stated in the opinion. court:
Mr. Joseph Fairbanks, for respondent: This is an information for adultery.

Under § 5881 of the Public Statutes, an The respondent pleaded guilty, and thereunmarried man who has illicit intercourse upon moved in arrest of judgment on the with a married woman does not commit ground that no offense charged in the adultery.

information. The motion was overruled, to court in STATE v. BIGELOW explained this woman. The Roman law being in this relack of harmony by the statement that spect superseded, this definition was “In the jurisdictions holding that a single cepted by every Christian state at the man is not guilty of adultery for sexual time of the colonization of America, and intercourse with a married woman, there is is, no doubt, part of the common law either, as was held in Respublica v. Roberts, brought with them by the colonists of all 1 Yeates, 6, a compelling uniform prac- Christian nationalities. That it corresponds tice, or some peculiar language of the stat. with a sound judicial philosophy is illusute, or, what is more often the case, they trated by the fact that it is incorporated adopt the ecclesiastical, and not the com- in the codes of the principal continental mon-law, definition of adultery. In those European states.' 2 Whart. Crim. Law, jurisdictions which adhere to the common. 10th ed. § 1719. By the common law of law definition, it is held that a single man England adultery was not punishable as a is guilty of adultery, even in the absence crime. It has been made punishable in of any express declaration in the statute." most of the American states, not as a com

Accepting the court's statement as the mon-law offense, for, as just said, it was true explanation of the diversity of opinion, not an offense under that law, but in rethe question arises: Was it necessary for sponse to the moral sense, which finds exthe courts to choose between the common- pression in the canon law. It is in that law and the ecclesiastical-law theories ? sense that it is made punishable by our The court in STATE v. BIGELOW did not statute, and in that sense ought the word consider itself obliged to do so, for the rea- to be defined and interpreted. An examison that "the amendment recognized the nation of the cases in this state leaves the true theory, and extended our statute so as question somewhat embarrassed. Thus, in to include what would be adultery by ec- slander it has been ruled that an unmarclesiastical law, but in no way restricted ried woman cannot commit adultery. Adams the common-law definition of the term.” v. Hannon, 3 Mo. 222; Christal v. Craig, This, of course, adopts the common-law 80 Mo. 367. But in criminal actions under definition, and adds the substance of the this statute, it has not been deemed esecclesiastical-law definition because of the sential to a successful prosecution that the peculiar wording of the statute. This basis woman should have been married. In State of the holding of necessity makes it one v. Crowner, 56 Mo. 147, the information for limited application. But a theory has was against both the man and woman, and been advanced, based upon broader grounds, did not charge the woman to be married, which leads to the same conclusion as was nor did the proof_show it. The contrary reached by the court in STATE v. BIGELOW. is to be inferred. In State v. Chandler, 132 Thus, in State v. Holland, 162 Mo. App. Mo. 155, 53 Am. St. Rep. 483, 33 S. W. 797, 678, 145 S. W. 522, it was held that "it is the offense is defined at pages 160, 161 of true that the common law of England was the report, without including a necessity adopted by our statute, and by that law that the female must be a married woman. a married woman was necessary to the And so it was in State v. Bess, 20 Mo. 419, crime of adultery. But the canon law where the prosecution was against both changed this by substituting a more unre- parties. In State v. Coffee, 75 Mo. App. 88, stricted definition, and as thus changed it a conviction of both parties was sustained was brought to this country by the colonists. by the St. Louis court of appeals, though ‘Adultery, according to the definition thus the woman was unmarried. It is thus seen established, is sexual connection betwe a that, under the rulings on this statute, man and a woman, one of whom is lawfully an unmarried woman may be guilty of married to a third person ; and the offense adultery if her illicit intercourse is with a is the same whether the married person in married man. The statute means that if the adulterous connection is a man or a ' either party to the intercourse be married, which the respondent excepted. There was , This claim finds support among some text judgment and sentence, the execution of writers and in the decisions of a few

See which was stayed, and the cause passed to states cited in respondent's brief. this court.

Bishop, Stat. Crimes, SS 655-657; 2 Greenl. The information charges, with proper al- Ev. § 48; Respublica v. Roberts, 1 Yeates, legations of time and place, that the re

6; Com. v. Lafferty, 6 Grátt. 672; Hunter spondent, a single man, carnally knew one

v. United States, 1 Pinney (Wis.) 91, 39

Am. Dec. 277. While reference to the ques, a married woman, then and there

tion has been made in our decisions, it having a lawful husband living, naming him, and not then and there being the wife appears never before to have been squarely

raised in this state. The question turns of the respondent, and that he did then upon the definition of the term “adultery," and there commit the crime of adultery

as used in Pub. State. § 5881, upon which with the said - The contention of this prosecution is based. This statute does the respondent is that a single man who not define the offense, but punishes what has illicit sexual intercourse with a mar- was known as adultery under the common ried woman is not guilty of adultery, in law, referring to it by name; so we must the absence of a statute to that effect. ' look to that source for its definition. State both are guilty of adultery. No one would | woman. This is in harmony with the holddeny that proof by a complaining wife in ing in Lyman v. People, 198 Ill. 544, 64 N. an action for divorce, that her husband had E. 974, as cited in the earlier note. had carnal connection with an unmarried An unmarried woman cannot commit the woman, would sustain her charge of adul. crime of adultery within the meaning of tery. There is no reason to suppose that a criminal statute that does not define the the legislature meant to make any different term. Re Cooper, 162 Cal. 81, 121 Pac. 318 definition of the act in a criminal prosecu-(another statute defined the term for divorce tion. Com. v. Call, 21 Pick. 509, 32 Am. purposes, but apparently this conclusion Dec. 284. One is a public scandal and the would have been reached independently of other private; but each, in result, tending the statutory definition). to the disorder and demoralization of so- In State v. Chafin, 80 Kan. 653, 103 Pac. ciety.”

143, it is held that adultery cannot be comSo, it may be said that some courts have mitted by an unmarried person. An unadopted the common-law definition, others married man was charged with the crime of the ecclesiastical-law definition, and still adultery with a married

The others have combined the two definitions, court refers to its holding in Bashford v. which in effect makes both parties guilty if Wells, and the note thereto in 18 L.R.A. either or both were married to a third per- (N. S.) 580; and in State v. Ling, 91 Kan. son at the time the offense was committed. 647, 138 Pac. 582, the holdings in both

In Rich v. State, 1 Ala. App. 243, 55 So. former cases were approved and made the 1022, it was held that “the term 'adultery' basis of a holding that an indictment for as used in our statutes means illicit in adultery may be brought against one pertercourse between two persons of different son without joining the other party as a sexes, one of whom is married to another defendant. person.” But see statement by the court in In California the Code defines adultery Buchanan v. State, 55 Ala. 154, as cited in as “the voluntary sexual intercourse of a the earlier note, which statement. would married person with a person other than the qualify the above definition, or rather limit offender's husband or wife.” Under this its application to the married person, the section an unmarried person cannot commit unmarried one being guilty of fornication. the crime of adultery. Ex parte Sullivan,

In Zackery v. State, 6 Ga. App. 104, 64 17 Cal. App. 278, 119 Pac. 526. This is S. E. 281, it was held that "to constitute the same statute to which the court referred the crime of adultery in this state, both in Ex parte Cooper, supra, and the court parties to the criminal act must be married here regarded it as defining the crime persons at the time of its commission.” for the purposes of the criminal statute. This holding is broader than was necessary In Oregon the statute defines the crime in to dispose of the case, for apparently the such language that a married man may be

was the defendant, and it seems to convicted of adultery with an unmarried have been his marriage that was in question. woman. State v. Case, 61 Or. 265, 122 Pac. See Kendrick v. State, 100 Ga. 360, 28 S. E. 304. Likewise, an unmarried man with 120, as cited in the earlier note, for wording a married woman. State v. Ayles,

Or. -, of the statute and a holding such as would 145 Pac. 19. And Utah also has a similar have sufliced to dispose of the case in Zack statute, i. e., one that makes both parties

liable to be convicted if either is married to In People v. Martin, 180 II. App. 578, it a third person. State v. Greene, 38 Utah, was held that “adultery is sexual inter- 389, 115 Pac. 181. course of a married person with a person As to construction and effect of statute other than the offender's husband or wife,” requiring prosecution to be upon complaint and that a married man commits the crime of husband or wife, see note to State v. by having intercourse with an unmarried 'Wesil, 19 L.R.A. (N.S.) 786. J. W. M.


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ery v. State.



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

this question the common law furnishes no Adultery was a private wrong at the direct authority; for, as we have seen, common law as it existed at the time of its adultery was not an indictable offense at adoption by our legislature, but was common law. That the wrong involved the offense against the ecclesiastical law, As man as well as the unfaithful wife is perknown to the common law, as distinguished fectly apparent. If we recur to the source from ecclesiastical law, adultery consisted from which the common-law idea of adul. of sexual intercourse by a man, married tery sprung, we shall see that it regarded or single, with a married woman, not his the man and woman alike. It found its wile. The circumstance on which adultery root in the Mosaic law which provided : depended at common law was the possi. "If a man be found lying with a woman bility of introducing spurious issue; in oth- married to an husband, then they shall both er words, its tendency to adulterate the i of them die, both the man that lay with issue of an innocent husband and turn the the woman and the woman.” Deut. xxii. inheritance away from his own blood to | 22; Lev. xx. 10. 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 com- the 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, Turning to the decisions of our sister 78 Kan. 295, 18 L.R.A. ( N.S.) 580, 96 Pac. states that have made adultery an indict663, 16 Ann. Cas. 310 and note. The latter able offense without defining the term, we view of adultery is embodied in Pub. Stat. discover a well-defined line of cleavage be§ 5882, which declares that a married man tween them. In the jurisdictions holding and an unmarried woman, who commit an that a single man is not guilty of adultery act which would be adultery if such woman for sexual intercourse with a married were married, shall each be guilty of adul. woman, there is either, as was held in tery. State v. Clark, supra. The adoption Respublica v. Roberts, supra, a compelling in 1818 of what is now Pub. Stat. § 5882 as uniform practice, or some peculiar language an amendment of the statute of 1797, which of the statute, or, what is more often the made adultery an indictable offense, clearly case, they adopt the ecclesiastical, and not indicates that the common-law, and not the the common-law, definition of adultery. ecclesiastical, meaning of the term, was In those jurisdictions which adhere to the employed in the original statute, for other common-law definition, it is held that a wise the amendment would have been un single man is guilty of adultery, even in necessary.

the absence of any express declaration in Consideration of the opposing theories of the statute. State v. Wallace, 9 N. H. 515; adultery at common law and in the eccles. Smitherman v. State, 27 Ala. 23; State v. tical courts makes it apparent that in the Pearce, 2 Blackf. 318; State v. Connoway, former there was no reason for distinguish- Tappan, 58; note in 16 Ann. Cas. 314. ing between a married and a single man, See Hood v. State, 56 Ind. 263, 26 Am. Rep. the particeps being a married woman; 21; 2 Am. Crim. Rep. 165; State' v. while in the latter the guilt inhered in the Weatherby, 43 Me. 258, 69 Am. Dec. 59; breach of the marriage vow, and so the Com. v. Call, 21 Pick. 509, 32 Am. Dec. offense could not be committed by an un- 284; State v. Lash, 16 N. J. L. 380, 32 Am. married person, man or woman. Respond- Dec. 397; 1 R. C. L. 631. ent's counsel argues that the amendment Having adopted the common-law defiof 1818 shows that, but for the statute nition of adultery, we regard it as the set(now Pub. Stat. § 5882), an unmarried tled law of this state that any man, married particeps would not be guilty of adultery or single, having voluntary sexual interin this state. The argument loses sight course with a married woman, not his wife, of the common-law theory of adultery. is guilty of adultery under Pub. Stat. $ The amendment recognizes the true theory, 5881. State v. Searle, 56 Vt. 516; State and extended our statute so as to include v. Bisbee, 75 Vt. 293, 54 Atl. 1081, 15 Am. what would be adultery by ecclesiastical Crim. Rep. 460. The fact that the queslaw, but in no way restricted the common- tion has never before reached this court law definition of the term.

is a strong indication that the profession It remains to consider whether, under the has not seriously doubted the view we now common-law definition of adultery, our stat. adopt. A uniform practice of more than a ute makes both parties to the act guilty of century, while it does not make the law, the offense, or whether the fact of marriage'as said in Respublica v. Roberts, is strong

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