Earle v. Simons
| Decision Date | 17 July 1883 |
| Docket Number | 9640 |
| Citation | 94 Ind. 573 |
| Parties | Earle v. Simons |
| Court | Indiana Supreme Court |
Petition for a Rehearing Overruled April 18, 1884.
From the Porter Circuit Court.
The judgment is affirmed, at the costs of appellant.
J Bradley and J. H. Bradley, for appellant.
H. A Gillett, for appellee.
This action was commenced in the Lake Circuit Court on the 9th day of May, 1878. The venue was afterwards changed to the Porter Circuit Court. The complaint by appellee, upon which the case was tried, consists of two paragraphs. The first is in the ordinary form in actions of ejectment. In it appellee asks a judgment for the recovery of the possession of the undivided one-half of a section of land in Lake county.
In the second appellee's title is set up in detail, and it is averred that appellant had entered upon the land, and claimed to hold and own the same by a title paramount to that of appellee. The prayer is that the title to the land be quieted in appellee, and that he have judgment for the possession and damages for the unlawful detention. The answer upon which issue was joined consists of three paragraphs, each being to the whole complaint. The first is a general denial. The second sets up that appellant claims the said land under and by virtue of a sale for delinquent taxes made by the treasurer of Lake county, on the 10th day of February, 1873, and a deed made thereunder by the auditor of the county on the 5th day of May, 1875, and that this action was not commenced within five years after the date of the sale. A copy of the tax deed is filed with this paragraph.
The third, which is somewhat in the form of a cross complaint, sets up the payment of a certain amount on the sale of the land for taxes in 1873, and the payment of subsequent taxes, and asks that the whole be declared a lien upon the land. The case was tried in June, 1881, and a judgment rendered quieting the title in appellee, that he have possession, and giving appellant a judgment for $ 194.81 for taxes by him paid. A motion for a new trial by appellant was overruled. He excepted, and prosecutes this appeal. The only question discussed by his counsel is the alleged error in overruling the motion for a new trial. There is no dispute about appellee's title and his right to recover, unless it has been extinguished by the sale of the land for taxes.
It appears from the evidence that the portion of the land in dispute has been owned in fee simple, as follows: From December, 1867, to April 8th, 1871, by Thomas Ewing; from April 8th, 1871, to the 13th day of February, 1872, by Andrew Peterson and Inguel Radstrom; from the 13th day of February, 1872, to the 2d day of May, 1874, by John H. Bonnell; from the 2d day of May, 1874, to the present time, by appellee.
On the 15th day of February, 1870, appellant received a deed from one A. T. Coquillard, for the other undivided one-half of the section, and upon that deed claimed to own the interest therein described. On the 25th day of November, 1871, he commenced an action in partition, against said Peterson and Radstrom, as the owners of the undivided one-half of the section of land now in dispute, claiming to own the other undivided one-half, and procured a temporary injunction against said Peterson and Radstrom, enjoining them from cutting and removing timber from the land. This injunction remained in force until the March term, 1872, of the Lake Circuit Court. During the pendency of this action, one Morrison was made a party, and disputed with the appellant the ownership of the undivided one-half claimed by him. This litigation terminated in a decision by this court, in 1879, that Morrison was the owner of the one-half claimed by appellant.
Appellant claimed the interest in dispute between him and Morrison from 1870 until the decision of this court in 1879. In the fall of 1871, he built a shanty upon the land, and occupied it by tenants up to the time of the trial of this action, together with two or three acres around it, which have been enclosed by a fence.
Appellant never claimed any title to the undivided one-half covered by the tax deed, being that portion in dispute in this action, until after the tax deed was delivered to him in May, 1875. Before the temporary injunction was ordered, Peterson and Radstrom cut some wood on the land. Bonnell and Morrison also cut wood on the land.
In 1877, appellee and said Morrison commenced cutting timber on the whole section, except a small portion, made improvements, built fences, and cleared about three hundred acres. There is evidence on the part of appellee, that Peterson owned personal property in 1871 and 1872, situate in the county, to the amount of $ 500. Radstrom and Bonnell, also, had personal property exceeding in value the amount of taxes. There is no evidence as to whether or not Ewing lived, or had personal property, in the county.
In 1877, Morrison tendered appellant $ 125 for taxes paid, but did not inform him that it was tendered in behalf of appellee. At that time, also, a notice was served upon appellant by Morrison, not to make any improvements upon the land. There is nothing to show whether or not this notice was from appellee or Morrison. The only evidence in support of the tax title is the certificate and deed by the county treasurer and auditor, which certificate was introduced in evidence over the objection of appellee. The certificate recites, that legal notice having been given for four successive weeks, the treasurer of the county, on the 10th day of February, 1873, sold to appellant, for the sum of $ 70.58, the land in controversy, said sum being the amount of taxes, penalty, interest, and costs, due on the land for the years 1871 and 1872, being assessed and duly entered for taxation, in the name of John H. Bonnell, and that at the end of two years appellant would be entitled to a deed for the interest in said land so sold.
The deed recites that on the 5th day of May, 1875, appellant presented to the auditor said certificate, from which it appears that appellant purchased the land and other tracts at a tax sale on the 10th day of February, 1873, returned delinquent in the name of John H. Bonnell, John G. Earle, Anton Hoffman and one Reed, for the non-payment of taxes, etc., for the years 1871 and 1872, and paid therefor $ 113.20, which said lands had been recorded in the auditor's office as delinquent for the non-payment of taxes, etc.; and that legal publication was made of the sale of said lands on the 10th day of February, 1873. There is this further statement: "And it appearing from the records of said county auditor's office that the aforesaid lands were legally liable for taxation, and had been duly assessed and properly charged on the duplicate with the taxes for the years 1871 and 1872," etc.
Appellant asks a reversal of the judgment upon two grounds, and the argument of his counsel is confined to these.
It is claimed first, that appellant is the owner of the land by virtue of a sale and purchase for delinquent taxes, and that the certificate and deed are sufficient evidence of the sale, and the regularity and validity of the proceedings leading thereto. This claim is based upon sections 222, 224, 254 and 255 of the revenue act of December, 1872, 1 R. S. 1876, p. 122, et seq., and it is maintained that the burden is upon appellee to show that the law was not in all things complied with.
Appellee claims that the evidence of the sale and prior proceedings is not sufficient to establish a title in appellant, for the reasons, among others, that there is no legal evidence that the land was ever assessed or sold for taxes; that there is no evidence to show that the owner of the land in 1871 and 1872 had not personal property in the county at the time of the sale, out of which the taxes might have been made; that on the contrary, it is shown that the parties to whom the land was assessed had such personal property, and that appellant, claiming to own the undivided one-half of the land under the deed to him from Coquillard, was a tenant in common with the owner of the undivided one-half now in litigation, and as such tenant in common could not acquire title to that interest by purchase at tax sale. Section 222 provides that upon the production of the certificate, the auditor shall execute to the owner of it a deed, which shall vest in the grantee an absolute estate in fee simple, etc. This section means nothing more than that such a title shall vest by such deed, provided all of the requirements of the law have been complied with by the officers charged with the duty of assessing and collecting taxes. Steeple v. Downing, 60 Ind. 478.
Sections 254 and 255 are as follows:
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