Sands v. Davis

• Decision Date: 08 January 1879
• Citation: 40 Mich. 14
• Court: Michigan Supreme Court
• Parties: Louis Sands v. Lilias I. Davis

40 Mich. 14

Louis Sands v. Lilias I. Davis

Supreme Court of Michigan

January 8, 1879

Submitted October 10, 1878; October 11, 1878.

Error to Manistee. Submitted October 10 and 11, 1878. Decided January 8, 1879.

Judgment reversed with costs and a new trial granted.

Ramsdell & Benedict for plaintiff in error. If a tenant in common enters into actual and exclusive possession, taking the rents and profits to his own use and openly asserting exclusive property, his possession is adverse and an ouster of his co-tenants, Small v. Clifford, 38 Me. 213; Willison v. Watkins, 3 Pet. 51. Unity of possession is not essential to tenancy in common, Bogardus v Trinity Church, 4 Sandf. Ch., 675. A tenant in common is not estopped from buying an outstanding title for his exclusive benefit (Van Horne v. Fonda, 5 Johns. Ch 406) where he is under no obligation to protect his co-tenant (Coleman v. Coleman, 3 Dana 398; Reinboth v. Zerbe Run Imp Co., 29 Pa. 139) or where he is in possession under color of title in fee and denies a co-tenancy, Burhans v. Van Zandt, 7 Barb. 91; Osterhout v. Shoemaker, 3 Hill 513; Averill v. Wilson, 4 Barb. 180.

Dovel & Morris for defendant in error. A tenant in common cannot set up an adverse tax-title acquired through his own default, as against his co-tenant (Lacey v. Davis, 4 Mich. 140; Page v. Webster, 8 Mich. 263; Butler v. Porter, 13 Mich. 292; Dubois v. Campau, 24 Mich. 360; White and Tudor, Lead. Cas. in Eq., 899; Horton v. Saunders, 13 Mich. 409; Phelan v. Kelley, 25 Wend. 389; Jackson v. Spear, 7 Wend. 401); neither can his grantee, Jackson v. Bush, 10 Johns. 222; Cook v. Travis, 20 N.Y. 400; Jackson v. Scott, 18 Johns. 94; Arnot v. Beadle, Lalor's Supp. to Hill & Denio, 181; Jackson v. Hinman, 10 Johns. 292; Jackson v. Parker, 9 Cow. 73.

Campbell, C.J. The other Justices concurred.

OPINION

Campbell, C.J

Defendant in error in her own right and as assignee of her brother, as heirs at law of Joseph Smith, recovered judgment against Sands for one undivided fifth of certain premises in Manistee county, being lot 1 in section 7, town 21 north of range 16 west, except a parcel held by a third person. Joseph Smith was original purchaser from the United States by patent dated March 10, 1852. He died in 1858 leaving four children, Nancy B. Bagley, Luther G. Smith, V. Adelaide Sherwood, and Augustus E. Smith, and two grandchildren, Lilias I. Ford, now Lilias I. Davis, and George A. E. Ford. George A. E. Ford came of age May 18, 1873, and Mrs. Davis in 1869.

August 13, 1867, Sands took a quit-claim deed from Delos L. Filer of the land in question. There was evidence tending to show that Filer then claimed to own the land, but Sands introduced no testimony to show from what source Filer derived title. Sands went at once into possession, and as the evidence tends to show, did so claiming to be the exclusive owner.

On the 24th of January, 1866, a tax-deed was made to one Wilson Salling for taxes of 1863, as purchaser of the State bid.

On the 9th day of February, 1878, after this suit was commenced, a tax-deed was made to one Nelson Salling of the same lands for taxes of 1864, as purchaser at the sale in October, 1865.

On the 22nd of August, 1866, one E. N. Salling made a quit-claim to Robert M. Risdon, who on April 16, 1870, quit-claimed one undivided half to Sands. He had before, on July 1, 1867, quit-claimed the other undivided half to Nathan Engelmann.

On the 5th of May, 1869, Nathan Engelmann, Sarah Engelmann, Michal Engelmann, and Sophia Engelmann quit-claimed to William H. W. Cushman, Isaac N. Hardin and James W. Calkins, who, with their wives, on August 1, 1870, quit-claimed to Sands. It does not appear from the record whether these four Engelmanns were the original Nathan Engelmann and three others, or if not, how they represented him. It seems to have been assumed, however, that they conveyed his interest.

On the 29th of December, 1877, one week before this suit was commenced, a quit-claim deed was made by Wilson Salling describing himself as alias E. Nelson Salling, stating that it was given to confirm to Sands the title under the tax deed of January 24, 1866, and that the grantor was the original Wilson Salling, to whom that deed was made. There was evidence tending to show such identity.

No further evidence was put in by defendant except as to making valuable improvements and paying taxes. He claimed that if Mrs. Davis recovered, he was entitled under the statute of 1875 to pay for his improvements.

Upon this point we need not consider the precise effect and operation of that statute (L. 1875, p. 207), as it has already been decided in Martin v. O'Conner, 37 Mich. 440, that it has no reference to tenants in common owning undivided interests.

And the previous statute (Comp. L., § 6252-3), protecting improvements under tax-titles, did not (if not entirely inoperative now) apply to cases like the present, where the party in possession did not enter or hold merely under a tax-title. Gilman v. Riopelle, 18 Mich. 145; King v. Harrington, 18 Mich. 213.

The construction of the statute of 1875, and its applicability ex post facto, need not therefore be discussed. It is very possible that on a partition there will be no difficulty in making such an allotment as will entirely protect all parties.

The remaining questions lie within a narrow compass.

Plaintiff below gave in evidence, in addition to the United States patent and her own derivative and inherited title, quit-claim conveyances to Delos L. Filer from three of the four surviving children of Joseph Smith, viz.: from Augustus E. Smith, August 11, 1862; from Violetta Sherwood, August 23, 1866, and from Nancy Bagley, May 20, 1864. Evidence was also given tending to show that Filer went into possession immediately after his purchase from Augustus E. Smith.

This testimony showed that the government title was vested two-fifths in Sands, one-fifth in Luther G. Smith, one-fifth in Delos L. Filer, and one-fifth in Mrs. Davis. The tax-title of 1863 was in Sands and that of 1864 in Salling.

The points presented are first, whether Sands was estopped from setting up the tax-titles; and second, whether they are valid.

There can be no doubt that under the laws of the United States which invest the government with plenary power over the primary disposition of lands, all parties are bound to look to the United States patent as the first instrument which made an absolute legal title in any one. Smith was the original purchaser, and until his entry of purchase, which was completed by the patent, the land was not open to private transfer or ownership, and was not before such entry taxable. The record of the patent in the proper office in Washington is declared by law to be of the same force as the patent itself. See McGarrahan v. Mining Co., 96 U.S. 316, 24 L.Ed. 630. While our recording laws allow and encourage the record of patents in our county registries, the failure so to record them cannot operate to injuriously affect their validity or operation.

It does not, however, follow from this that a purchaser from one who holds but an undivided interest in the patented lands is estopped from setting up an adverse claim which originated before...