Frentz v. Klotsch

Cole, J. In this case the court directed the jury to find for the plaintiff, doubtless upon the the theory that the tax deed was void as against the plaintiff. In support of this ruling of the court below, it is insisted that the tax deed was void upon its face on account of the. omission to state the place where the sale took place. The deed récites, among other things, that the lot was sold by the treasurer of the county “ at public auction, at Oshkosh, in the county of Winnebago, on,” etc. It is claimed that the law requires the deed further to recite that the sale was “ at some public place,” as, for example, at the “ court house ” in the city of Oshkosh; or, if not at the court house, that it should show that the sale was “ at some public place,” stating where it was; and that, unless the deed contains such a recital, it is void on its face. The form of the tax deed is prescribed by chap. 22, Laws of 1859, and it is certainly far from being clear that the legislature intended this degree of particularity. At all events, the form given does not recite that the sale was “ at some public place,” or at “ the court house.” Section 50. Nor do we think that it is essential to the validity of the deed that it should contain such a recital. For obvious reasons, the statute requires that the notice published by the county treasurer should state that the delinquent land will “ be sold by him at public auction at some public place, naming the same, at the seat of justice of the county, that he may select,” etc. Section 2. This, evidently, is for the purpose of informing the public and parties in interest where the sale will take place, so that they may attend if so disposed. But after the sale, when the officer comes to execute [317] tbe conveyance, we cannot see tbat it would subserve any useful purpose for tbe deed to recite tbat tbe lands were sold “at tbe seat of justice,” or at some other designated “ public place.” Tbe presumption is tbat it was so sold. Of course, if we could say tbe legislature intended tbat tbe deed should contain such a recital, it would then be material, and tbe deed would be fatally defective without it. But we are unable to so bold from tbe form given in tbe statute. It appears from tbe tax deed tbat tbe grantees therein held tbe tax certificate as “ assignees of tbe treasurer ” of tbe county. It is said tbat tbe treasurer bad no authority to purchase or own county tax certificates. We suppose tbe land was bid off by tbe treasurer for tbe county, in this instance, for tbe want of other purchasers. Tbe county has authority to purchase in such a case. Section 9, chap. 22, Laws of 1859. Another objection taken to tbe validity of tbe tax deed is, tbat it appears from tbe evidence tbat tbe grantor of tbe plaintiff and one Mears owned tbe lot as tenants in common; tbat while they so owned it, Mears became tbe owner of tbe tax certificate upon which tbe tax deed was issued. Tbe purchase of tbe tax certificate by Mears, it is claimed, must be regarded as a redemption of tbe land, and no tax deed could afterwards be issued upon tbe certificate, for tbe reason tbat one tenant in common is not permitted to purchase for bis exclusive benefit an outstanding title with a view to become himself tbe sole owner of tbe property. Without entering into any lengthy discussion of this question at tbe present time, we will say tbat we are not prepared to decide upon tbe facts disclosed, tbat Mears could not under any possible circumstances take a tax deed, even as against bis co-tenant. It appears in evidence tbat be and bis co-tenant, David, derived title to .the lot under different conveyances, and tbat tbe premises were unoccupied by any one until tbe defendant took possession on tbe 7th of August, 1869. Now tbe doctrine tbat one tenant in common will not be allowed to purchase in [318] an outstanding title, and avail bimself of tbe benefit of sucb title as against bis co-tenant, is limited and qualified b j some of tbe authorities. Tbe rale cannot be said to be one of universal application, but depends somewhat upon tbe facts of tbe particular case. Tenants in common are bound to deal -fairly with each other, and when they stand in sucb confidential relations in regard to one another’s interest, that it would be inequitable to permit one to acquire a title solely for bis own benefit, and expel bis co-tenant, then be will be treated as a trustee for tbe share of bis co-tenant. But it is suggested by some of tbe authorities that tenants in common are probably subject to this mutual obligation to preserve tbe estate for each other only when their interests accrue under tbe same instrument, or act of tbe parties or of tbe law, or where they have entered into some engagement or understanding with one another; for, it is said, persons acquiring unconnected interests in tbe same subject by distinct purchases, though it may be under tbe same title, are probably not bound to any greater protection of one another’s interests, than would be required between strangers. Leading Cases in Equity, note to Keech v. Sandford, p. 96; Roberts v. Thorn, 25 Texas, 728; Brittin v. Handy, 20 Ark., 381. See also Wright v. Sperry, 21 Wis., 331-337. Tbe evidence before us does not disclose whether indeed there were any peculiar relations of trust and confidence between David and Hears, which would render it inconsistent with tbe utmost good faith and duty on tbe part of the latter to acquire a tax title upon tbe entire lot. If nothing of tbe land is shown, it may then be a serious question whether Mears could not take a tax deed upon the certificate, and hold it for his own benefit, the same as though he were a stranger to the title. The parties will have an opportunity of going into these matters on another trial, if they wish to; and it is probably not desirable that we discuss the subject farther. There were questions of fact in the case which should have been left to the jury. [319] By the Court.— Tbe judgment of tbe circuit court is reversed, and a new trial ordered.