Baily v. Doolittle

Walker, J. It appears from the evidence that petitioners were the owners in fee of two undivided third parts of the premises, and Isabella Sampson one-third, in fee, unless the appellant has shown a better title. For that purpose he introduced in evidence a sheriff’s deed on a sale of this land for taxes in April, 1845, dated on the 7th day of May, 1847, the certificate of purchase given on that sale having been previously assigned to him. Also, receipts for the payment of all taxes for the years 1847 to 1856, inclusive, on the land in controversy. He also introduced evidence showing a possession of the premises a portion if not all of the time from the fall of 1849 to commencement of this proceeding, by tenants or otherwise. The petition admits that appellant owned an undivided third of the premises during the life of R. S. Doolittle, and the decree so finds. The tax deed read in evidence, although made by the statute prima facie evidence of the listing and assessment, the nonpayment of the taxes, that it was not redeemed, etc., cannot be admitted as evidence of title until the foundation is laid, by the production of a judgment and precept, regular and sufficient on their face. In this case, no such judgment and precept were adduced. Neither the judgment or precept was for any sum of money. The figures used have no words, characters, marks or letters, indicating the sum intended to be represented. This defect, we have repeatedly held, is fatal to the validity of a tax sale. But this deed, although not title, was color of title under the first section of the limitation act of 1839, and if all the requirements of that act have been complied with, it affords a bar to a recovery. This depends upon the effect of the contract for the purchase of these premises by appellant, from R. S. Doolittle, on the 16th day of February, 1847, in which he was to pay the sum of two hundred dollars, and to pay all future taxes on the land, which were to be deducted from the purchase money, and he was to receive a deed upon payment of that sum. This agreement was in the possession of appellant, was produced by him on the trial, and there is no evidence that it was ever rescinded, or in any way released or discharged. The fact that beheld this contract for the purchase of this land, is evidence that he assented to, and was bound to comply with its terms. That when he received it, he undertook, on his part, to pay the purchase money and the taxes, on the land. To have relieved .himself from that obligation, he should have offered to perform his part of the agreement, and if Doolittle had failed to comply on his part, then he should have rescinded the contract, or in some other mode have relieved himself from its performance. But as it was never rescinded, when he made the payment of these taxes, it must be held, that it was under the contract, for the benefit of Doolittle, and not for himself, under his tax title. Having purchased of Doolittle, he thereby admitted his title, and having agreed, under that purchase, to pay all taxes, under that agreement he has no right to refer their payment to his tax title, and thereby defeat the title of his vendor. He is bound to keep his agreement in good faith. And to permit him to apply the payment of these taxes, under his tax title, to create a statutory bar, would be to permit him to perpetrate a fraud upon his vendor. He takes the agreement, holds it as a valid and subsisting contract against his vendor, proceeds on his part to comply with his part of the agreement by paying the taxes, as a part of the purchase money, and to allow these payments to be otherwise appropriated, would doubtless be contrary to the design of the parties. The petitioners had the right to rely upon his payments as being made under this purchase, and not as having been made to acquire a bar to their recovery. This view of the case renders it unnecessary to examine the question, whether the possession of appellant was of that character required by the statute, as the payment of taxes did not concur with the tax title. We perceive no error in this record for which the judgment below should be reversed. It is therefore affirmed. Judgment affirmed.