
    ORMSBEE v. UNITED STATES et al.
    District Court, S. D. Florida.
    January 14, 1928.
    No. 58.
    
    Internal revenue <@=>26 — Lien for income tax is subordinate to that of mortgage duly executed and recorded prior to record of tax lien, which is extinguished by sale of real estate under foreclosure of mortgage in federal court, with United States a party.
    Lien of the United States for income taxes due from an owner of real estate is subordinate to the lien, of a mortgage duly executed and recorded prior to record of the notice of tax lien and, on foreclosure of the mortgage in a federal court, with the United States made a defendant, the real estate may be sold free <Sf the tax lien.
    In Equity. Suit by A. A. Ormsbee against tbe United States and others.
    Decree for complainant.
    Tbe lien of tbe United States for income taxes due to tbe United States from tbe defendant, H. B. Yarborough, is subordinate to tbe lien of tbe mortgage, which was properly executed and recorded prior to tbe recordation of tbe notice of tax lien.
    R. F. Burdine, of Miami, Fla. (R. P. Terry, of Miami, Fla., of counsel), for complainant.
    ' William M. Gober, U. S. Dist. Atty., of Tampa, Fla., and Raymond F. Brown, of Miami, Fla., for tbe United States.
   CLAYTON, District Judge.

This is a suit -in equity, wherein tbe United States was made a party defendant, for°the purpose of adjudicating tbe priority of tbe mortgage lien of tbe complainant as against tbe tax lien of tbe United States. Permission of this court, after notice under tbe provisions of section 3207, Revised Statutes of tbe United States, as amended by section 1030 of tbe Revenue Act of 1924 (43 Stat. 350 [26 USCA § 136; Comp. St. § 5929]) was granted.

The facts are not in dispute. Tbe defendant, H. B. Yarborough, on tbe 5th day of January, 1926, was tbe owner in fee of tbe real estate involved herein, and on that date executed and delivered to tbe complainant his real estate mortgage, creating a mortgage lien upon tbe premises described in tbe deed, in favor of tbe complainant, for tbe purpose of securing tbe payment of one promissory note, in tbe sum of $10,000, dated January 5,1926, signed by said H. B. Yarborough, and payable to tbe order of the complainant, •on or before three years after date, with interest at tbe Florida legal rate of 8 per cent, per annum, payable semiannually. The mortgage deed (was recorded in Dade county, Fla., on tbe 5th day of January, 1926, as-provided by tbe laws of tbe state of Florida.

On tbe 15tb day of January, 1927, tbe United States filed for record in tbe office of tbe public recorder of Dade county, Fla., tbe notice of tax lien, for income tax which was then shown due to tbe United States by tbe defendant, H. B. Yarborough, in tbe sum of $19,282.87, with interest and penalties thereon as provided by tbe acts of Congress.

Default was made in tbe payment of tbe semiannual interest payment which fell due June 5, 1926, and tbe complainant instituted this suit for tbe foreclosure of bis mortgage and tbe enforcement of bis lien upon tbe real property.

Tbe question before tbe court here is that of determining the priorities of tbe two respective liens herein involved; that is to say, the mortgage lien of the complainant and tbe tax lien of the United States, tbe mortgage lien of tbe complainant having been properly recorded prior to tbe filing and recording of tbe tax lien of the United States is superior to such tax lien, and, under a decree foreclosing said mortgage lien, the mortgaged premises may be sold free of such tax ben. See Sherwood v. United States (D. C.) 5 F.(2d) 991.

Upon sale of tbe mortgaged premises under the direction of this court and tbe eonfixmation of said sale, the proceeds derived thei-efrom shall be applied: (1) To tbe payment of costs of this suit, including expenses incurred in making tbe foreclosure sale;^ (2) to tbe payment of tbe sum of $1,180 as reasonable fee for complainant’s solicitor for bis services herein; and (3) to tbe payment of $11,615, tbe amount ascertained to be due to tbe complainant as principal and interest on tbe promissory note and mortgage herein described, together with interest thereon from tbe 20th day of December, 1927, and tbe further sum of $7 for an abstract of title, paid by the' complainant, and which was necessary for tbe preparation and institution of this suit. °

If, after making all tbe payments above set forth, there remains a surplus over from tbe proceeds of tbe sale, such surplus shall be deposited in tbe registry of this court, and, upon proper application, tbe United States shall be permitted to have such surplus, if any, or so much thereof as may be necessary for tbe satisfaction of tbe income tax lien.

A decree will be entered in accord with this opinion.  