Dunn v. Snell

• Decision Date: 12 June 1882
• Citation: 74 Me. 22
• Parties: MONCENA DUNN v. NORMAN SNELL.
• Court: Maine Supreme Court

74 Me. 22

MONCENA DUNN v. NORMAN SNELL.

Supreme Judicial Court of Maine.

June 12, 1882

ON REPORT.

Writ of entry, dated July 7, 1880, to recover the Elisha Dunn homestead in Poland. Plea, nul disseizin, with brief statement claiming title in the defendant under a tax deed from the town treasurer, and that the plaintiff had not deposited with the clerk the amount of taxes, interest and costs as required by stat. 1880, c. 214. By order of the court the plaintiff deposited with the clerk of court forty dollars for that purpose.

Material facts are stated in the opinion.

J M. Libby, for the plaintiff, cited: Blackwell, Tax Titles, 431; 3 Wash. Real Prop. 207; Orono v Veazie, 61 Me. 431; Larrabee v. Hodgkins, 58 Me. 412; Nason v. Ricker, 63 Me. 381; Patterson v. Stoddard, 47 Me. 355; Haskell v. Putnam, 42 Me. 244; Moshier v. Reding, 12 Me. 478; Saco v Wentworth, 37 Me. 165; Saco v. Woodsum, 39 Me 258; Rowell v. Mitchell, 68 Me. 21.

John P. Swasey, for the defendant, contended that the action could not be maintained because the deposit with the clerk was not made prior to the commencement of the action, and because the deposit was not sufficient in amount to cover a tax of $27.90 with twenty per cent. interest from March 2, 1878 to May 7, 1881. Stat. 1880, c. 214; stat. 1879, c. 117; R. S., c. 6, § 161.

APPLETON C. J.

The plaintiff brings this action as mortgagee of the demanded premises.

It appears that in January or February, 1876, the defendant, being then in occupation of the premises in controversy, bargained with the plaintiff for their purchase on certain terms and conditions. This bargain was carried into effect in all respects, on April 19, 1876, save that the deed was made to Mrs. Ewer, and the mortgage and notes were at the same date given by her to the plaintiff. This change from the original contract was made at the instance of the defendant and assented to by the plaintiff. Mrs. Ewer, to whom the conveyance was made, is the mother-in-law of the defendant, who has up to the present time continued in possession of the premises conveyed.

It would seem probable that the conveyance was made to Mrs. Ewer in trust for the defendant with whom the contract was originally made. Mrs. Ewer has made no payments on the notes. Those made have been made by the defendant, who when unable to pay has apologized for his inability to pay. The possession of the defendant was either as cestui que trust, or as tenant under the mortgagor.

Whether the defendant has an equitable interest in the estate or is a tenant under the mortgagor, the purchase in either event must be regarded as made for the benefit of the estate rather than in fraud of the rights of the mortgagee.

One whose duty it is to pay the taxes upon land to prevent a sale of the same, cannot acquire a title by such sale and conveyance as against the real owner, but the vendee's deed will be treated as void from the beginning. Blake v. Howe, 1 Aiken 306. In Williams v. Gray, 3 Greenl. 207, it was held that when one co-tenant bought in a tax title, his purchase enured to the benefit of his co-tenant, who would be liable for his share of the money advanced. When a piece of land is sold for taxes, and the same is purchased by and deeded to one of the tenants in common thereof, he acquires no right, title or interest in or to the moiety belonging to his co-tenant. Downer v. Smith, 38 Vt. 464. If a tenant for life, whose duty it is to cause all taxes assessed upon the estate during his tenancy to be paid, neglects it and suffers the land to be sold for such taxes, and subsequently receives a release of the title acquired under the sale, such release extinguishes the title and gives him no rights whatever against the reversioner. Varney v. Stevens, 22 Me. 331. To sustain such title in his hand, would be a fraud on the reversioner. A purchaser at a tax sale of land in which he has an interest as heir acquires no greater title by permitting it to be sold for taxes and purchasing it in himself. Choteau v. Jones et al. 11 Ill. 301.

I. The mortgagor would not be allowed to purchase the mortgaged premises, if sold for taxes, for the purpose of defeating the mortgage. In such case he is regarded as paying the taxes for his own benefit. Frye v. Bank of Illinois, 11 Ill. 383. The tenant of the mortgagor is in no better condition than such mortgagor.

The mortgagor, then, whether having an equitable interest in the estate and so benefited by the payment of the tax, or the tenant of the mortgagor, and paying the taxes which by the express language of the mortgage, the mortgagor covenanted to pay, would not be permitted to set up this title in fraud of the rights of others. The mortgagor could not do it, and those holding under and in submission to the mortgagor would be equally estopped.

The tax title must be deemed as fraudulently obtained, and in such case the requirements of the statute are inapplicable. McMahon v. McGraw, 26 Wis. 614.

II. The tax, under which the alleged sale was made, was assessed in 1876. The sale was made in 1878, and at that time, the statute of that year, (c. 35,) was in force, in which it was provided that " in any trial in law or in equity involving the validity of any sale of real estate for non-payment of taxes, it shall be sufficient for the party claiming under it, in the first instance, to produce in evidence the collector's or treasurer's deed, duly executed and recorded, and then he shall be entitled to judgment in his favor, unless the party contesting such sale shall prove to the court that he or the person under whom he claims, has paid or tendered the amount of all such taxes and the legal charges and interest thereon and all costs of suit, and then he may he permitted to prosecute and defend," & c. By this statute, there was no necessity of making any tender unless the opposite party brought himself within the statute,--that is, produced " the collector's or treasurer's deed, duly executed and recorded. That produced, made a prima facie case. The opposing party wishing to contest the sale by showing the weakness of this prima facie case, must make a tender,--among other items of the " costs of suit." This shows that not desiring to offer further proof, but relying on the apparent defects of the record title, there is no occasion for any tender.

The statute requires a collector's or treasurer's deed duly executed and recorded. A party relying on the statute must bring himself within its provisions. One having a deed not " duly executed," cannot claim its favorable presumptions. One having a deed not duly " recorded, " is not one entitled to the same statutory rights as one having a deed duly recorded. The record of a deed and its execution are...