Willard v. Strong

The opinion of the court was delivered by Williams, Ch. J. But one question legitimately arises on the bill of exceptions in this case, although another has been argued. The defendants contend that they are entitled to hold the seventy-five acres deeded to Fanny Phillips by Farmer, and also seventy-five acres more, as deeded to him [534] by the collector, Flanders, and requested the county court so to decide. This they now insist upon, and also, that ^iey were tenants in common with the plaintiff, and that no ouster was shown. It is vei-y clear that the request of the defendant could not have been complied with. The plaintiff paid the tax on the whole right, except seventy-five acres, and Noyes could have acquired a title to • only seventy-five acres. It was his duty to pay the tax, as it was an incumbrance on the land when he sold to Strong. He acquires nothing against the plaintiff, by permitting the land to be sold for the tax, and being himself the purchaser. The county court were, therefore, right in refusing the request of the defendants and permitting a recovery by the plaintiff of all but the seventy-five acres, if they had sufficient evidence-of an ouster by the defendants, and whether they had such evidence or not does not appear in the bill of exceptions. It may be remarked that, by the deed from Farmer to Fanny Phillips, she became the owner of seventy-five acres in common with him, and that a division or partition in fact had been made between them, more than fifteen years before the commencement of this suit. Phillips, at the time he deeded to Noyes, describes the seventy-five acres, as'a farm on which he had lived for more than six years. The payment by the plaintiff of the tax on one hundred and twenty-five acres, could only be applied on the land he owned, which was precisely that quantity of land in that division, and this left the other seventy-five acres for Noyes either to pay or bid off. But, in either case, his payment, or bid could only apply to the land he owned, and whether it was in common or in severalty would not justify him in entering upon the other part of the lot to the exclusion of the plaintiff. The judgment must, therefore, be affirmed.