Welch v. Ketchum

Collins, J. Action for partition, the facts, over which there was no controversy, being very simple. Prior to 1860 the general government duly sold, and by its patents conveyed, to Leander S-. Ketchum and William H. Coffin, jointly, the section of land in dispute. These patents were duly recorded. On May -11th of that year, the latter, his wife joining, executed and delivered to Ketchum a quitclaim deed of the north half of the section, but this, deed was [246] never recorded. From that time on, until 1869, Ketchum regularly paid the taxes on the entire premises. He then died intestate, his sole heir being defendant herein, his widow. In 1873 the auditor of the county wherein the lands were situated executed and delivered to one Mrs. P. M. Wing a tax deed of the same, for taxes, penalties, and costs claimed to be due and delinquent, and this deed was immediately placed on record. Mrs. Wing for 10 years thereafter paid the taxes annually levied upon the premises, as they became due. In October, 1882, in consideration of a payment to her of the amounts which she had paid upon the land, with interest, Mrs. Wing, her husband joining, executed and delivered to the defendant a quitclaim deed of the same, which deed was recorded when the plaintiff acquired his rights, as hereinafter stated. The defendant paid the taxes upon the whole section as the same became due for the years 1882, 1883, and 1884. Prior to February 25, 1885, William H. Coffin died intestate, and on that day his heirs at law joined in the execution and delivery to plaintiff of a quitclaim deed to the land, which deed was recorded May 16th of the same year. Plaintiff paid a valuable consideration for the lands to the heirs, and had no notice or knowledge that defendant had or claimed any title to the premises, except such as appeared from the record, and had no actual notice or knowledge of any payments of taxes made by Mr. Ketchum in his lifetime, or by Mrs. Wing, or by this defendant. Upon the trial it was conceded that the tax deed to Mrs. Wing was not only void upon its face, but that there was no tax list showing any taxes to be unpaid or delinquent upon the land when it was executed, and also that the county auditor had no right or authority to issue it. On these facts it was contended by defendant that she was the owner in fee of the north half, and also of an undivided half of the south half, of the section; and, further, that in this action a share of the amounts paid by Mr. Ketchum and herself as taxes, and of the sum paid to Mrs. Wing for the quitclaim deed as aforesaid, such share to be determined by the extent of plaintiff’s title and interest in the premises, as found by the court, should be adjudged a specific lien upon such title and interest, and. in this action. As before indicated, the court below held [247] that plaintiff was the owner in fee of' an undivided half of the section, wholly divested of defendant’s claim for taxes paid, and ordered that partition be made accordingly. 1. The case of Lyon v. Gleason, 40 Minn. 434, (42 N. W. Rep. 286,) would seem to dispose of defendant’s contention that, by the unrecorded deed of Mr. and Mrs. Coffin, the heirs of the former were divested of title to the north half of the section, so that no interest whatsoever in that part of the land could be transferred by ,them. In that case the facts were slightly different, for the ancestor died testate, and his will had been duly probated before the heir conveyed. But there can be no possible difference in principle, and, under the recording acts, it is well settled that, an unrecorded deed is not valid after the death of a grantor, dying intestate, as against one holding by a recorded deed from the grantor’s heir, without notice of the former deed. Earle v. Fiske, 103 Mass. 491; Kennedy v. Northup, 15 Ill. 148; Powers v. McFerran, 2 Serg. & R. 44; Youngblood v. Vastine, 46 Mo. 239. 2. When the persons hereinbefore named paid the taxes, plaintiff had no interest in the premises, and-consequently owed no duty respecting the same. So that, whatever may be the law relating to the rights of joint tenants or tenants in common to recover, one from the other, amounts paid to remove tax titles or liens from property, it has no application here; and, although referring to the subject, appellant’s counsel does .not insist that it has. But his main contention is that respondent’s claim as a bona fide purchaser from the Coffin heirs gave him no superior right in the land, as against the equities of appellant arising out of the fact that she had removed a cloud upon the title and incumbrance upon the property occasioned by the execution and record of the tax deed to Mrs. Wing, and by the payment of taxes subsequently and duly levied. When the respondent purchased, the title of record appeared to be and was perfect in Coffin at the time of his decease, save as it might be impaired by the registration of two deeds, one the inherently defective tax deed, the other Mrs. Wing’s conveyance to appellant, who otherwise was an absolute stranger to the record title; If any notice could be attributed to respondent by virtue of a record of either of these instruments, it would [248] be that appellant was asserting a title to the property hostile to the parties to whom the government had issued its patents, or their successors in interest. There was not the slightest intimation that appellant had or claimed to have any rights in the property except such as were predicated upon the Wing deed. The taxes appeared to have been paid, presumptively, by the parties whose duty it was to pay; and, while an investigation in the office of the county auditor or treasurer might have revealed the names of the persons who had done this, the respondent was under no obligation to make such an investigation. Even if he was, and had examined, he would have learned that Mrs. Wing, a person claiming title to the entire section adversely to those to whom it had been patented or their successors in interest, had paid the taxes for ten years after procuring and recording her adverse title, and that thereafter appellant, the person to whom Mrs. Wing had conveyed, carried the burden of taxation for the period of three years, or up to about the time the premises were deeded to respondent. This would have confirmed the latter in the belief that appellant was an adverse claimant to the whole under the tax deed, not that she claimed to be an owner in fee of an undivided interest as the heir at law of Mr. Ketehum. The argument that, by the record of the quitclaim deed from Mrs. Wing, full notice of appellant’s alleged equities was given to would-bé purchasers, is based, in part, upon the false assumption that a tax title, valid on its face, at least, had been secured and put upon record, and partially upon the like assumption that from the records it appeared that appellant was or claimed to be a tenant in common with Coffin or his successor in interest. But, had either or both assumptions been well founded, it is difficult to see, in view of the decisions of this court, how appellant’s position could be sustained, unless it was held that an equitable lien for taxes paid upon the common property by one joint tenant or tenant in common outranked and was to be preferred above an equitable lien for purchase money, or the equitable right of a purchaser to have a deed reformed as against the lien of a judgment, or as superior to.a lien actually reserved by contract, but unrecorded. See Selby v. Stanley, 4 Minn. 65, (Gil. 34;) Wilcox v. Leominster Nat. Bank, 43 Minn. 541, (45 N. W. Rep. 1136 ;) Stover v. Cory, 53 Iowa, [249] 708, (6 N. W. Rep. 64.) Nothing can be claimed for appellant under 1866 G. S. eb. 11, § 142. See Barber v. Evans, 27 Minn. 92, (6 N. W. Rep. 445;) Brown v. Corbin, 40 Minn, 508, (42 N. W. Rep. 481.) Order affirmed. (Opinion published 51 N. W. Rep.. 113.)