Rupp v. Orr

[519] The opinion of the court was delivered by Lowrie, C. J. Eimn if Rupp could not properly be treated as a trustee ex maleficio, for violating his contract to hold the tax title for the benefit of himself and Orr; still, we could not reverse this judgment, because of the court having submitted the question to the jury in that form. Taking the alleged facts as proved, say the court, Rupp must admit Orr’s title; and whether the law so declares because of the contract, or because of fraud in attempting to evade the contract, makes no difference; the result is the same. We do not regard Orr as holding by a parol title. Each party has a written title. If we treat Rupp as alone having the tax-title, then he admits its insufficiency, and gets Orr to perfect it for the common benefit by buying in the supposed better title. After that, he cannot dispute Orr’s title thus obtained and used. If he had merely encouraged Orr to buy it, without giving notice of his own claim, Orr would have taken a good title against him. But this is a stronger case, for Orr’s purchase is made on the faith of a contract with Rupp, that he shall have a good title thereby, and Rupp is plainly estopped from setting up his tax-title against it now. This view of the case is an answer to all the assignments of error. If the parties are truly disposed to deal fairly with each other, and quiet all further litigation, they will immediately settle their accounts of the purchase, and make conveyance to each other of undivided halves of the land. Judgment affirmed.