Peckham v. Millikan

• Decision Date: 16 February 1884
• Docket Number: 11,118
• Citation: 99 Ind. 352
• Parties: Peckham v. Millikan
• Court: Indiana Supreme Court

99 Ind. 352

Peckham v. Millikan

No. 11,118

Supreme Court of Indiana

February 16, 1884

Rehearing: March 18, 1885

Reported at: 99 Ind. 353 at 363

From the Superior Court of Tippecanoe County.

H. W Chase, F. S. Chase, F. W. Chase, J. S. Frazer and W. D Frazer, for appellant.

J. C. Blacklidge, W. E. Blacklidge, and B. C. H. Moon, for appellee.

OPINION

Best, C.

The appellant brought this action to set aside a sale of his land for taxes and to quiet his title.

The complaint consisted of two paragraphs. A demurrer was sustained to the first and overruled to the second. An answer in denial was filed, and also a counter-claim, whereby the appellee sought to quiet his title. The latter was denied, and an agreement was made that any relief might be granted under the issues thus formed that would be proper under any state of pleading.

The cause was submitted to the court for trial, with the request that the court find the facts specifically and state its conclusions of law thereon. This was done. Both parties excepted to the conclusions of law, and judgment was rendered, setting aside the sale and adjudging a lien upon the land in favor of the appellee for the amount of taxes paid, with eight per cent. interest thereon.

The appellant insists that the court erred in sustaining the demurrer to the first paragraph of the complaint, and in concluding upon the facts found that the appellee was entitled to a lien upon the land for the amount of taxes paid by him. The appellee, by a cross assignment of errors, insists that the court erred in overruling the demurrer to the second paragraph of the complaint, and in concluding upon the facts found that he was not entitled to interest at the rate of twenty-five per centum. These questions will be considered in their natural order.

The second paragraph of the complaint alleged, in substance, that the appellant owned the land in question, and on September 30th, 1873, sold and conveyed it to John Hirzel, who, to secure the unpaid purchase-money, executed to him a mortgage upon said land for $ 8,000, one-half of which was payable in one and the other half in two years from that time, with interest at ten per cent.; that said John Hirzel failed to pay said mortgage; the same was thereafter duly foreclosed, an order of sale issued, and said land sold to the appellant on the 27th day of March, 1880; that the same was not redeemed, and at the expiration of a year from the sale the same was conveyed to the appellant, whereby he became re-invested with the title; that on the 18th day of February, 1880, the appellee purchased said land from the auditor of said county at private sale, for the taxes "alleged to have been assessed against the same as the property of said Hirzel, for the year 1878 and previous years;" that said taxes are alleged to have become delinquent to the amount of $ 223.04, and that the appellee paid the same to the treasurer of said county and received a certificate of purchase; that on the 24th day of February, 1882, the auditor of said county executed a deed for said land to the appellee, and by virtue thereof he now claims said land; that said sum of $ 223.04 "was not, nor was any part thereof, assessed or placed upon the tax-duplicate which came to the hands of the treasurer of said county for any of the years of 1875, 1876, 1877, 1878 and 1879 against said land;" that notice of said sale was never published by said auditor. Wherefore, etc.

This paragraph was, as it seems to us, radically defective, because it fails to show that these taxes were paid or tender of payment made before suit brought, or that these taxes were not a lien upon the land.

This is an application to a court of equity to remove a cloud from the appellant's title, and it is well settled that so long as any of the taxes legally due remain unpaid, such court will not aid a party unless he offers to pay the taxes due. Harrison v. Haas, 25 Ind. 281; McWhinney v. Brinker, 64 Ind. 360.

Our statutes do not change this rule. They authorize the holder of a tax title to bring an action to recover possession or to quiet his title, and they provide that if his title fail for certain causes, the court shall ascertain the amount of taxes paid, the improvements made, if any, and shall decree the amount a lien upon the land. The third section of the act of March 5th, 1883, is the only one that seems to authorize it. This section provides that "in case judgment shall be rendered against the person holding the title from the auditor aforesaid for the recovery of such land in an action of ejectment or other action, either at law or equity, the court shall ascertain the amount due to the person holding such tax deed," etc., "adding thereto the value of all improvements," etc., "and shall decree the payment thereof within such reasonable time," and on default thereof shall order the land sold. This section manifestly contemplates an action for the recovery of the land and none other. The phrase "or other action, either at law or equity," means nothing, as there is no other action by which land can be recovered, and the action of ejectment is at law. To maintain such action it is not necessary to "do equity." If the party has the legal title and is entitled to possession, he may maintain the action though the opposite party is entitled to a lien. If, however, he can not at law successfully assail his adversary's title, and goes to a court of equity to set it aside, he must first do equity himself by paying or offering to pay what is due, and this statute does not enable him to do otherwise.

This land was liable for taxes, and assuming for the present that it was liable for the taxes assessed against John Hirzel, we think it does not appear that it was not liable for the taxes for which it was sold. The averment is that it was sold "for taxes assessed against John Hirzel for the year 1878, and for previous years," and that the sum of these taxes was not assessed or placed upon the duplicate for the years 1875, '6, '7, '8 and '9. The fact that they were not placed upon the duplicate, and this is all that is averred, in no manner affected their validity or released the land from its share of the common burden. Again, for aught that is averred, the taxes for 1874 may have been legally assessed and properly placed upon the duplicate, and no reason is assigned why this portion of the tax is not legally due and does not constitute a lien upon the land. If this portion is due, and payment or tender of payment has not been made, this action can not be maintained.

This much has been said upon the assumption that this land is liable for the taxes assessed against John Hirzel. This the appellant disputes. He maintains that as these taxes were assessed against Hirzel during the time this land was encumbered by appellant's mortgage, they only bound the equity of redemption, and inasmuch as this has been extinguished by the foreclosure of the mortgage and the sale of the property, no interest of Hirzel remains upon which they can attach, and hence they do not now constitute a lien upon the land. This precise proposition was decided adversely to the appellant in the cases of Bodertha v. Spencer, 40 Ind. 353, and Isaacs v. Decker, 41 Ind. 410. In each of these cases it was held that taxes thus assessed continue a lien upon the land after a foreclosure and sale upon a prior mortgage, as against the mortgagee who becomes the purchaser. These cases, of course, are decisive of this question.

As this land was liable for the taxes thus assessed against John Hirzel, and as this paragraph did not aver payment or tender of payment, it was insufficient, and the demurrer improperly overruled.

The first paragraph of the complaint was defective for the same reason, and the demurrer thereto was, therefore, properly sustained.

The conclusion thus reached would seem to render it unnecessary to consider the questions raised by the exceptions to the conclusions of law, but as these questions will necessarily hereafter arise, we will now pass upon them.

A condensed statement of the facts as furnished by the appellant, and the conclusions of law, are in these words:

"July 28, 1832, said school section was subdivided by the proper officers, platted, and the plat recorded in the recorder's office, as follows:

(Image Omitted)

"September 16th, 1873, the appellant, being the owner of the northwest quarter of the southwest quarter of said section 16, which corresponds to lot twelve in said subdivision and recorded plat, by purchase of one White, executor of Edward C. Herrick, sold it to John Hirzel for $ 1,200, of which $ 400 was cash, and $ 800 evidenced by two notes of $ 400 each, at one and two years, at 10 per cent. interest, both of which were secured by a mortgage from Hirzel, who took immediate possession and kept it till May 5th, 1878. He had no other land, but his wife owned a tract adjoining on which they lived. Hirzel cut 200 cords of wood on the land, which he removed and sold. He had, during all the time he occupied the land, from $ 300 to $ 400 worth of personal property on it and the tract adjoining. The appellant recorded his mortgage immediately. The land was assessed to Herrick for 1874, and to the appellant for 1875, by the description of 'lot numbered 12, in section 16, township 23, range 5,' but for the years 1876, '7, '8 and '9 it was not assessed to any one, so far as the records in the auditor's office and treasurer's office of the county show; but they do show the assessment of lot number two, in said section 16, for those years to John Hirzel.

The taxes on lot 12 for 1874 were

$ 16.11

For 1875, including the delinquent tax

20.75

For 1876, taxes for said lot two, in said section 16

73.55

For ...