Wilmot v. Lathrop

MUNSON, J. The two cases' to be determined were tried together. The first is ejectment for a lot known as the Smith Hill pasture. The second is a petition for the partition of premises known as the Hiram Lathrop home farm. The Smith Hill pasture adjoins the Lathrop farm, and has long been used in connection witii it. Both pieces were set to Hiram Lathrop as one parcel in the list of 1886, and were sold for the non-payment of taxes assessed under a vote taken at a special town meeting held in February, 1887. Maria L. Hurlburt, a defendant in both suits, claims under this sale. In 1863, Hiram Lathrop conveyed the home farm to EliasLathrop, who, on the same day, conveyed it to Daniel W. Lathrop and the two persons now made defendants in the partition suit. The deed executed by Hiram Lathrop contains this clause: “It being further conditioned, agreed and understood between said parties that the said Hiram Lathrop is to live on the above described premises and is to have the control and benefit of said farm and premises during his natural life.” In 1882, Hiram Lathrop conveyed the Smith Hill pasture to the same Daniel W. Lathrop, with the following reservation: “And the said Hiram Lathrop reserves a life lease on the above-named land, and the use ot the same as long as he shall live.” The respective titles were as above shown at the time the lists in question were taken. The plaintiff has obtained the interest of Daniel W. Lathrop in both pieces. The grand list of 1886 is based upon the quadrennial ap — 675 — praisal of 1882. The law required the listers to return this appraisal to the town clerk’s office on or before the first Tuesday in July. R. L., 292. The preliminary oaths of the listers, as entered in this appraisal, are dated and certified to have been taken on the eighteenth day of July. The court below has found from parol evidence, excepted to by the plaintiff, that these entries are erroneous, that the listers were sworn before commencing this appraisal, and that the appraisal was seasonably returned to the town clerk’s office. Both the true time of administering the oath and the seasonable return of the appraisal could be established by parol. The rule which permits a contradiction of the date of a paper by other proof of the time of its execution has been often' applied to official documents ; and, in the case of official certificates, to the time when the official act is certified to have been done. Morton v. Edwin, 19 Vt. 77; Chandlers. Spear, 22 Vt. 388 (401); Hopkins v. School District, 27 Vt. 281; Bartlett v. Boyd, 34 Vt. 256; Johnson v. Burden, 40 Vt. 567. The statute does not require that the time the appraisal is deposited shall appear from the appraisal itself, and it may be established by the testimony of any one cognizant of the fact. Blodgett v. Holbrook, 39 Vt. 336. The law required that this appraisal be returned with a certificate of its correctness thereto attached, verified by oath. R. L., 296. This certificate and verification also bear the date of July eighteenth. The finding of the court below does not expressly include these in the list of dates found to be erroneous, but no claim is made regarding them except that they afford conclusive proof that the appraisal was not completed and filed within the time required. It is distinctly said in argument that if the appraisal was in fact filed within the required time, it was filed in the form in which it now appears. It having been found from evidence held to have been admissible that the ap — 676 — praisal was seasonably filed, it must be taken to have been filed with the proper ceriificates incorrectly dated. It is argued in this connection that the purpose for which the appraisal is required to be deposited at this time entitles the taxpayer to rely upon it as made, and that the position in which he would be placed by changes based upon parol evidence is a sufficient reason for holding such evidence inadmissible. It is said that one who finds in his individual list ample cause for taking an appeal, may decide not to do so because of the manifest invalidity of the entire appraisal. The case before us affords no basis for this argument, whatever the weight to which it might otherwise be entitled. An appeal must be taken within three days after the first Tuesday. R. L., 297. One inspecting this appraisal within the time available for an appeal would have found the required certificate with an impossible date. This clearly would not have justified him in treating the list as invalid. If the time allowed for taking an appeal had extended beyond the eighteenth, so that an inspection might have been had alter the date of the oath and yet within the time allowed for an appeal, the argument would have required further consideration. It is also urged that no record of the preliminary oath taken by the listers was made by the town clerk. This was not essential to the validity of the appraisal. Day v. Peasley, 54 Vt. 310. It is claimed that the sale was invalid because the property was set to Hiram Lathrop instead of the persons to whom he had conveyed as above stated. When the quadrennial appraisal of 1882 was made, the statute required that real estate be set to the owner. R. L., 276. When the list of 1886 was taken, it might be set to the owner or possessor. No. 7, Acts 1884. But the assessment .is good, even if it be assumed that its validity depends upon the properly having been set to the owner in the quadrennial valuation. The — 677 — language before quoted from Hiram Lathrop’s deeds was sufficient to secure to the grantor a life estate in the premises conveyed. No particular form of words is necessary to create an estate for life. A reservation of the use and control of the granted premises during life is sufficient. Riehardson v. York, 14 Me. 216. It is the duty of one holding such an estate to pay all the taxes assessed upon the land during his life. 1 Wash. Real Prop. 96. We think one holding a freehold estate which carries with it an obligation to pay the taxes is an owner to whom the land may properly be set. The case submitted presents no findings on which the sale can be held invalid on the ground of an error in determining the amount of the Lathrop list after equalization. An ordinary error of computation, in no way chargeable to bad faith, will not invalidate either the list or the particular tax. Spear v. Braintree, 24 Vt. 414. It is further claimed that the assessment of the tax was unauthorized. Article second in the warning reads as follows : “To see if the town will vote to raise money to apply on the indebtedness of the town and current expenses, and what amount of money they will raise, and when it shall be collected.” The record of the proceedings contains the following : “A motion made and carried that the town raises $6.00 on the dollar on the grand list of 1886, and raised on the spring list.” On the margin opposite the record of this action is the entry: “Article second in the warning.” We think it sufficiently appears that under this article in the warning the town voted to raise a tax of six hundred cents on the dollar of the grand list for the purpose stated in the warning. The tax bill offered in evidence as the one delivered to' the treasurer was not certified to by the selectmen. It purports to be the special tax oí 1887 assessed on the grand list of 1886 ; and the court found from parol evidence, to the — 678 — admission of which exception was taken, that that tax was placed in the treasurer’s hands for collection. It is provided by s. 1, No. 90, Acts of 1880 (R. L., 382-388), that the selectmen shall make and deliver to the treasurer all tax bills then required by law to be made and verified by them, except highway tax bills. The law did not then require that any tax bills made out by the selectmen should be verified by their certificate. G. S., ch. 15, ss. 46, 47. It had been held upon an examination of these provisions that a certificate of the selectmen was unnecessary, and that parol evidence might always be received to show on what list and under what vote a particular tax was assessed. Reed v. Jamaica, 40 Vt. 629. There having been, at the time the act of 1880 was passed, no requirement that a tax bill be certified, it cannot be claimed that that act impliedly required that the tax bill delivered to the treasurer should be certified. Nor has the general provision in regard to the duties of the selectmen in this respect been changed by the revision. R. L-, 2693. It appears from the case that the plaintiff claimed on trial that there were various irregularities in the proceedings of the town treasurer and collector in collecting the tax and making this sale, and that these appear in the records and papers referred to. Two or three irregularities in these proceedings are now claimed, but there is nothing to show that these were among the points raised in the court below. It is evident that in a case which involves the regularity of a series of official documents and records, justice requires that the excepting party be confined to those defects which are shown to have been specifically pointed out in the county court. It is said in Dana v. Lull, 21 Vt. 383, that this court will consider only the questions which are shown by the record to have been raised and passed upon in the court below. When counsel concluded to urge these defects they — 679 — should have procured an amendment of the exceptions showing that they were pointed out on the trial. We hold that the tax sale was valid, and that the judgment given the defendants in the ejectment suit was correct. Judgment affirmed. The interest of Hiram Lathrop in these premises was determined by his death in 1891. The property thereupon became subject to partition among the common owners. But the petition brought to effect this is contested by the defendant Maria L. Hurlburt, upon a claim based on the tax sale. After the sale, and before the time for redemption had expired, Mrs. Hurlburt made an arrangement with the purchasers by which she obtained a deed of the property upon payment of the amount for which it was sold. She does not •claim that by this proceeding she acquired any title to the .shares owned by her co-tenants. But she insists that a disbursement of this character entitles her to hold possession of the entire property until she has been paid the sums properly chargeable to the other interests, and that a petition for partition cannot be sustained against her until such payment has been made. It is well understood that a co-tenant who redeems the common property from a mortgage incumbrance may hold it under the mortgage until the other owners pay him their proportionate shares of the money advanced. Hubbard v. Ascutney Mill Dam Co., 20 Vt. 402. We think a remedy not less efficacious should be accorded one who redeems common property from a tax sale. Such a sale fixes an incumbrance upon the land as effectually as the delivery of a mortgage deed. The tenure by which the purchaser holds the land during the time allowed for redemption is essentially the same as that of a mortgagee. The situation of a co-tenant is the same under one form of incumbrance as — 680 — under the other. He cannotjeffect a release of his own interest without redeeming those of his co-tenants. It seems-reasonable to hold that an enforced payment of this character by one tenant in common gives him a lien upon the shares of hisAo-tenants to secure his advances, with a right to retain possession until payment is made. It was so held in Watkins v. Eaton, 30 Me. 529; 50 Am. Dec. 637. See also Hurley v. Hurley, 148 Mass. 444. And while this right of possession exists there can be no partition at the suit of the other co-tenants ; for partition can be had only by one who is in possession or is entitled to immediate possession. We hold that the petitioner has failed to establish her right to partition, and that the judgment that partition be made was erroneous. Judgment reversed and petition dismissed.