Page:Federal Reporter, 1st Series, Volume 2.djvu/523

 516 FEDERAL REPORTER. �The eoTinsel urge, in addition, as a reply to such interrog- atory, the payment of taxes ,was voluntary. If so, tiien, under the well-established doctrine affirmed in the case of Homestead Co. v. Valley Railroad, 17 Wall. 153, 160, Taylor can have no relief. Was the payment of taxes voluntary ? I think not. Taylor held the title to an undivided one-half of the lands in trust for McKay and his successors in interest. It was so decided in a suit for specifie performance, and Tay- lor was ordered to make conveyances. He was required, while such trustee, to protect the title, and prevent a sale of the property and extinguishment of the interest he held in trust. He did so, and the payment of taxes was in fulfil- ment of his duty, and not voluntary. See Duffv. Dorman, 52 N. Y. 634. �The authorities cited by counsel are not in conflict with the views above expressed. Judge Wright, in one of the lowa cases, decided that in contraets for the sale of land, silent as to payment of taxes, the party in actual possession of the land should keep down the taxes. It is stipulated the land here was vacant. In the English case of Carrodus v. Sharp, 20 Beav. 56, there was an agreement for the sale of a lease of a mill by the plaintiff. By the terms of the lease no assignment could be made until the assent of the lessor was obtained. The parties had some differences about the value of machinery, and the defendant refused to perform. The assent of the lessor was obtained, and a decree for specifie performance being granted, and a reference as to title being had, it was decided that the date when the assent of the lessor was obtained fixed the time when defendant became a purchaser, and when he ought to take possession, and after that period he should pay the expenses and outgoings. �In this case McKay became a purchaser, and was entitled to his equitable interest when the county obtained a patent from the state, and the expenses and outgoings after that time must be paid by him and his successors. �Again, it is urged that the decree of the supreme court of lowa, granting specifie performance, settled ail the equities, and a conveyance being ordered "free from encumbrancea ����