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 ex-| penses chargeable to the mortgagor by the terms of the mortgage."

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 no title upon the purchaser at a sale under a judgment for its foreclosure, is not the test of the plaintiff's right to recover the amount paid for its discharge. The assessment 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."

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 property 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,

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. While somewhat parallel the facts are considerably different, and the reasoning is unsatisfactory. That decision seemed to have turned upon estoppel arising from the conduct of the parties. Likewise, Vermont 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 indefiniteness of description of property in an action 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.

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. (January 23, 1915.)

E

XCEPTIONS by respondent to rulings of the Caledonia County Court made 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

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 Strobh. Eq. 174; Hunter v. United States, 1 Pinney (Wis.) 91, 39 Am. Dec. 277. 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 woman. The Roman law being in this respect superseded, this definition was accepted 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 illus. trated 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 intercourse 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 See states cited in respondent's brief. 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 ques

tion has been made in our decisions, it raised in this state. appears never before to have been squarely The question turns 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.

Or.

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, 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.