Byington v. Stone

Rothrock, J. i. practice: answer. ‘ — I. The first assignment of error is that tho court disregarded the answer. As we understand the record the answer was withdrawn by leave of the court, and was not before the court for any purpose. When the answer was withdrawn and the demurrer fil.d the cause stood for hearing upon the demurrer. It is insisted in argument that the defendants should not have been permitted to withdraw the answer and demur, because the answer had been upon the files for two years. This was a matter within the discretion of the court, and it does not appear that there was any abuse of such discretion. 2 statute of taxrteed-'cintract. II. It is urged that the court erred in sustaining the demurrer. We think that the ruling of the court was correct, the ground that it does not appear from the petition that the plaintiff has title to the land, nor ke ]ias an equity that can be enforced. More than ten years elapsed between the time plaintiff was entitled to his conveyance from Paine, upon payment for the land, and the commencement of this action. The plaintiff does not aver payment to Paine, nor any fact which would [320] arrest the operation of the statute. His petition, therefore, showed upon its face that whatever equity he had in the land was lost by lapse of time. It is urged that defendants cannot avail themselves of the statute of limitations, because such defense is a personal privilege of the party to the contract or a person in privity with him, and there is no privity between Paine and the defendants. But it appears from the petition that at the time of the tax sale Paine held the legal title to the land, subject to be divested upon payment of the purchase money by plaintiff. By the provisions of section 78Í, of the Revision of 18C0, the tax deed vested “in the purchaser all the right, title, interest and estate of the former owner in and to the land conveyed.” By operation of law, then, the defendants were invested with the legal title held by Paine, as effectually as though he had conveyed to them by deed, and they can avail themselves of the statute of limitations the same as Paine could have done if his legal title had not been divested. III. It is contended that the petition should not have been dismissed as against the defendant O’Hanlon, because he did not join in the demurrer. We think the ruling upon the demurrer in effect disposed of the case as to all the defendants. The petition sought to redeem the land from a tax sale to the defendant Stone.' All the other defendants held under him. If there was no right in the plaintiff to redeem from Stone there was no right to redeem from his grantees. Affirmed.