Easton v. Schofield

• Decision Date: 11 December 1896
• Citation: 66 Minn. 425,69 N.W. 326
• Parties: EASTON v SCHOFIELD, AUDITOR.
• Court: Minnesota Supreme Court

66 Minn. 425

69 N.W. 326

EASTONvSCHOFIELD, AUDITOR.

Supreme Court of Minnesota.

Dec. 11, 1896.

(Syllabus by the Court.)

1. Section 1610, Gen. St. 1894, provides that when a tax sale is declared void by a judgment of the court, stating for what reason the sale is annulled, the amount paid the state at the tax sale or for the tax title shall be refunded, with interest thereon. Held, this section does not apply to cases where, as between the party purchasing the tax title and the owner of the land, such purchase is merely a payment of the taxes.

2. The party claiming refundment in this case had a title on which he would have prevailed in the action in which the judgment declaring the tax sales void was entered. He failed to prove this title, but relied wholly on his tax titles. Held, from these facts and other facts stated in the opinion, it conclusively appears that he was guilty of bad faith towards the state, or such gross neglect that bad faith must be imputed to him, and that he is not, on such judgment, entitled to refundment.

Appeal from district court, Houston county; John Whytock, Judge.

Mandamus by J. C. Easton against Charles J. Schofield, auditor of Houston county. There was a judgment for plaintiff, and from an order denying a new trial defendant appeals. Reversed.

C. S. Trask and James O'Brien, for appellant.

Kingsley & Shepherd and Duxbury & Duxbury, for respondent.

CANTY, J.

The plaintiff sued out a writ of mandamus in the court below to compel the county auditor of Houston county to draw his warrant on the county treasurer for the amount of certain taxes, and interest thereon, which plaintiff claims he is entitled to have refunded to him, under the provisions of section 1610, Gen. St. 1894. The case was tried by the court below, without a jury. The court found for plaintiff, and from an order denying a new trial the county auditor appeals.

The court found that the plaintiff bid off, at tax sale, certain undivided ninths of a certain tract of land in that county, or purchased tax titles on the same, so that he held a tax title on the same for each year of eight years, between 1875 and 1884, and that he also paid taxes on some of the undivided ninths of this land from 1875 to 1886. The court further found that one Fisher went into peaceable possession of the whole of the tract of land in question some time prior to 1891; that an action of ejectment was commenced against him by plaintiff, and thereafter, on September 24, 1894, judgment was entered in that action, adjudging that all of said tax titles are void and of no effect, and stating, further, the reason why these tax titles are void, which reasons are set out at length in the findings. The court found that plaintiff is entitled to the refundment of amounts paid, and interest thereon, amounting in all to $1,326.

So far as here material, said section 1610 reads as follows: “When any tax sale is declared void by judgment of court, such judgment shall state for what reason such sale is annulled; and in all cases where any sale has been, or hereafter shall be, so set aside, the money paid by the purchaser at the sale, or by the assignee of the state on taking the assignment certificate, and all subsequent taxes, penalties, and costs that may have been paid thereon, shall, with interest at the rate of ten per cent. per annum from the date of such payment, be returned to the purchaser or assignee, or the party holding his right, out of the county treasury, on the order of the county auditor.”

Appellant contends that the court erred in awarding judgment for plaintiff for two reasons: First, that plaintiff is, and ever since 1875 has been, owner or tenant in common of an undivided one-ninth of the tract of land in question, and therefore could not acquire a tax title against his co-tenants, but that his attempts to do so amounted merely to a payment of the taxes; and, second, that the ejectment action was collusive and fraudulent; that plaintiff, in the trial of the same, rested wholly on his tax titles, and suppressed the fact that he was owner of said undivided one-ninth, but stipulated on the trial that he had no other title except such as he had by said tax titles.

1. As to the first point, it appears by the evidence, and was found by the court, that in 1865 the owner of the tract of land conveyed an undivided one-ninth of the same to each of eight other persons, retaining one-ninth himself; that one of said grantees was one Wyckoff, who died in 1870, seised of the same, and left, surviving him, his widow; that on September 28, 1875, the widow conveyed her interest in said land to plaintiff. It also appears from the evidence that Wyckoff left no issue surviving him. The statute of descent then in force in this state provided that, “if he [the deceased] leave no issue, his estate shall descend to his widow during her natural life.” Rev. St. 1866, c. 46, § 1. Then plaintiff, on September 28, 1875, became the owner of the whole of this one-ninth interest during the life of the widow, and he remained the owner of the same during all of said time, as he had not conveyed the same away, and she had not died. It is almost universally held that one tenant in common cannot acquire a tax title against his co-tenants, and his acquiring of the same only operates as a payment of the taxes. 2 Desty, Tax'n 936; Cooley, Tax'n (2d Ed.) 502. See, also, Holterhoff v. Mead, 36 Minn. 42, 29 N. W. 675.

Section 1599, Gen. St. 1894, was not intended to abrogate this well-established rule, but, on the contrary, was intended to recognize and save it. So far as here material, that section reads as follows: “Any person, except county auditors, county treasurers, and each of their deputies or clerks, may become the purchaser at such sale. If the owner purchase, the sale shall have the effect to pass to him (subject to redemption as herein provided) every right, title, and interest of any and every person, company, or corporation, free from any claim, lien, or incumbrance, except such right, title, interest, lien, or incumbrances as the owner so purchasing may be legally or equitably bound to protect against such sale, or the taxes for which such sale was made.” The decisions hold that his co-tenant is one of the parties whom the purchaser is “equitably bound to protect.” It is as much the duty of one tenant in common to pay the taxes as it is of another. Equity holds that one such tenant must protect his co-tenant as much as he protects himself. The duty of all is the duty of each in that respect. This equitable principle applies with more or less force to every outstanding claim against the land, which one tenant in common may acquire and attempt to use against his co-tenants. 1 Washb. Real Prop. (5th Ed.) 720.

But the position of respondent seems to be that section 1599 authorizes the owner to purchase his own land at tax sale, and that, even if the purchase of a tax title is merely a payment of the taxes as between him and his co-tenant, still it is not such a payment, as between him and the state of Minnesota, that, as to all parties except his co-tenants, his contract must be enforced as it is written. We will say, in answer to this, that section 1610, when providing for the refundment of taxes where the tax sale is declared void by a judgment, contemplated a judgment in a real action, not a fictitious one,-an action in which something was at stake besides the interest of the state of Minnesota; an action in which the rights of the state of Minnesota incidentally abide the determination between the parties to the action of real and valuable rights at stake between the parties themselves. It did not contemplate that the owner of land may sue himself for the purpose of determining whether the tax title which he purchased on his own land was valid. Neither did it contemplate that a tenant in common may get up a moot case between himself and his co-tenants for the purpose of determining nothing but the liability of the state of Minnesota...