
    No. 369
    OHIO NAT. LIFE INS. CO. v. BAMBERG
    Ohio Appeals, 3rd Dist., Hardin Co.
    No. 147.
    Decided March 11, 1925
    1159. TAXES AND ASSESSMENTS — When deducted from proceeds of sale of property securing mortgage, not equivalent to payment of, within meaning of 5688 and 5689 GC.
    Attorneys—Bittinger, Schmitt & Kreis, Cincinnati, & GAB. DeWitt,'Kenton, for Insurance Co.; C. W. Faulkner, Kenton,.for Bam-berg. ' .
   HUGHES, J.

Mary Bamberg was the owner of a life estate in 100 acres of land some 30 years ago, and under a verbal contract delivered possession of it to her daughter, the remainderman, in consideration among other things that she pay taxes from year to year as they became due. After the -daughter took possession, the Ohio National Life Insurance Co. took a mortgage in fee, subject to the life estate; and when it became due same was foreclosed and property was sold for an amount less than that needed to pay the Insurance Company’s claim in full. It seemed that this was true because from the proceeds of sale there had been deducted over $500 for taxes which had become delinquent. This action was brought in the Hardin Common Pleas by the Insurance Co. against Mary Bamberg to recover the amount paid out for delinquent taxes.

It is apparent that the Insurance Co. proceeded upon the assumption and theory that it had been subrogated to the remainderman’s rights. The Common Pleas rendered judgment in favor of Bamberg. Error was prosecuted and the Court of Appeals held:

1. Since by the contract between Bamberg, the life tenant, and her daughter, the remain-derman, the remainderman had no rights against Bamberg at all, but was obliged to pay the taxes.

2. Bamberg never knew that the taxes had become delinquent and were remaining unpaid. The insurance Co. never did pay the taxes and their claim that having the net amount deducted from proceeds of sale was equivalent to paying them, does not come within the meaning of the subrogation statutes; 5688, 5689 GC.

3. Rights asserted against life tenant could rise .no hijgher than the rights of the one who had given to the Insurance Co., by assignment, all the rights it can'claim. Judgment of lower court affirmed. ’ • ’  