Page v. Webster

• Decision Date: 29 May 1860
• Citation: 8 Mich. 263
• Court: Michigan Supreme Court
• Parties: John A. Page v. David B. Webster and another

8 Mich. 263

John A. Page v. David B. Webster and another

Supreme Court of Michigan

May 29, 1860

Heard April 27, 1860

Questions reserved from Montcalm circuit in chancery, where Canso Crane, one of the defendants, had interposed a demurrer to the bill of complaint, for multifariousness. The case is sufficiently stated in the opinion.

A & E. Gould, for defendant Crane, to the point that the validity of his adverse claim could not be tested in a suit for partition, cited, 3 Johns. Ch., 302; 4 Ibid. 271; 1 Ibid 111; 5 Barb. 62; 3 Paige 242; 5 Denio 385; 2 Barb. Ch. Pr 285.

Demurrer overruled.

J. W. Long year, for complainant, on the question of multifariousness, referred to 1 Dan. Ch. Pr., 384 and note, 385; 1 Hoff. 290; 13 Ill. 95, 107; 6 Dana 374; Story Eq. Pl., §§ 271, 530 and note, 539.

OPINION

Martin Ch. J.:

This bill is filed for partition of real estate held by the complainants and defendants as tenants in common. As to Webster, who is described as being the owner of an undivided one-fourth, the bill is taken as confessed. Crane is represented as the owner of another undivided one-fourth, and the bill further alleges that he has a pretended title which he claims to hold as adverse to that of his co-tenants, but which is averred to be fraudulent and void; and they ask to have it so declared in order that partition of the several interests of the owners may be made. The facts respecting this title are set out in the bill substantially as follows: The whole of the lands owned in common was sold at tax sales, for non-payment of taxes assessed thereon during the continuance of the tenancy in common; and upon such sales, the defendant Crane, being such co-tenant, bid off the same for the taxes of certain years, and for those of other years caused the land to be bid off by his brother, but for his own use, and, as the bill alleges, he took a transfer of the bids, and procured deeds from the auditor-general to be executed therefor to himself. Reed, in his life time, offered to pay Crane his proportion of such bids, and the interest, etc., and the complainants, who are his executors and devisees, are still ready and now offer to do so; but they also insist that such sales were invalid for irregularities, and that Crane's title is a cloud upon theirs which ought to be removed.

This, Crane contends, is an assertion and admission of an adverse title and claim in himself, which can not be litigated in this suit; but that the validity of his title thus acquired should be first determined at law, and if found to be invalid, then this suit can be maintained.

It is unnecessary to determine whether, on a bill for partition between tenants in common, adverse titles or claims can be litigated and settled; because, if the allegations of this bill are true--and the demurrer admits their truth--Crane has no adverse title or claim. He occupies neither the position of one purchasing in an outstanding adverse title, nor of one purchasing from a bona fide purchaser at tax sale, whose title had become absolute, whereby the co-tenancy had been dissolved. He stands simply as one who has paid upon compulsion taxes assessed against the property held by him in common with others.

The burden was cast upon him and his co-tenants to pay the taxes assessed against the land. This each might have discharged, so far as his own interest was concerned, by paying his aliquot proportion of the tax; and thus relieved such interest from the lien for the tax which the law imposed upon it. Had Crane done this, and afterwards bid in his co-tenants' interest sold for their default, perhaps a different rule might obtain, and he have acquired a good title as against them; but such is not this case, and no opinion is called for upon such a state of facts. But as they all neglected to discharge this burden, and as the coercive measure of a sale of the land was resorted to by the state to compel it, when Crane bid in, or procured another to bid in the land...