Austin v. Barrett

Roti-ibock, J. i tax deedftoitatiou: • fraud. I. It is well settled that one tenant in common cannot purchase an outstanding incumbrance, and after it matures into a title set it up against his co-tenant. This principle has become elementary and ig B0f. necessary to cite authorities to sustain it. It is claimed by counsel for appellant, however, that this action will not lie because it was not commenced within five years after the recording of the tax deed. The ready answer to this is, that no attack is- made upon the validity of the tax sale. 7 This action stands upon ground independent of the validity of the tax sale proceedings. As is said in McMahon v. McGrow, 26 Wis., 614, a case involving the same question: “ We are satisfied that the plaintiff’s rights are not controlled by this statute; it is applicable to actions brought to recover lands sold for taxes which involve the'validity of the sales; but that is not the case here. The real ground of the 'plaintiff’s right to1 recover, notwithstanding the tax deed, is the fraud of the defendant in attempting to acquire a tax-title against her while the fiduciary relation of principal and agent existed .between them.” [491] 2.-: gran-ant. " [490] II. It is next claimed by counsel for defendant that, as [491] Wilson purchased the undivided one-tenth of the land in December, 1863, there was no duty resting upon him to pay the taxes for that year, and where no duty is imposed to pay the taxes' a tax-title may be acquired. This, no doubt, would be true as between Wilson and his grantor. But as between Wilson and the plaintiffs there were the same duties and obligations as between the plaintiffs and Wilson’s grantor. Wilson merely acquired an interest in the common' property, and could do no act to divest the interests of the plaintiffs, that his grantor could not do. Neither is it always true, that, to prohibit a party from obtaining a valid tax-title, he must be charged with an absolute duty or obligation to pay the taxes. Fair v. Brown, 40 Iowa, 209; Garrettson v. Scofield, ante, 35. The defendant occupies no better position than Wilson. The evidence shows that he bought with full knowledge of plaintiffs’ rights, and that he relied on the tax sale as the means of extinguishing their title. 3. tenant in seizin. ‘ III. It is insisted that the court erred in its findings as to the amount of rents and profits due the plaintiffs. This suit was commenced in 1875, and plaintiffs were entitied to their share of rents and profits up to, and including the year 1874. The defendant intended, by taking the tax title, to extinguish the title of plaintiffs. In 1870, one of the plaintiffs offered to pay the defendant what money he had paid out for taxes and all other expenses he had incurred, on the land. The money was produced and counted to the amount of two hundred dollars. Defendant refused to take the money, or make any settlement, on the ground that he had a good title to the land. These acts constituted defendant a disseizor of his co-tenants, and he became liable to pay the yearly rental value regardless of the profits he may have made from 'the land. Sears v. Sellew, 28 Iowa, 501. 4. —:-: inents^6 IY. It is further claimed that defendant should be allowed for improvements on the land. As the defendant was a disseizor wrongfully holding possession, and not only this, but denying and attempting to destroy the plaintiffs’ title, he is not entitled to contribution from plain [492] tiffs for improvements. This seems to be well settled by authority. Munford v. Brown, 6 Cowan, 475; Doane v. Badger, 12 Mass., 64; Deck's Appeal, 57 Penn. St., 467; Stevens v. Thompson, 17 N. H., 103. Adopting the above views as to the rights of the parties, in our opinion the amount found by the court to be due plaintiffs is fully sustained by the evidence. • . Affirmed. Seevers, Ch. J., having been of counsel in this case took no part in its determination.