Victoria Copper Min. Co. v. Rich

• Decision Date: 07 November 1911
• Docket Number: 2,117.
• Parties: VICTORIA COPPER MINING CO. v. RICH.
• Court: U.S. Court of Appeals — Sixth Circuit

193 F. 314

VICTORIA COPPER MINING CO. v. RICH.

No. 2,117.

United States Court of Appeals, Sixth Circuit.

November 7, 1911

[Copyrighted Material Omitted]

C. D Hanchette (Hanchette & Lawton, on the brief), for appellant.

D. H Ball (Ball & Ball, on the brief), for appellee.

Before WARRINGTON and DENISON, Circuit Judges, and HOLLISTER, District Judge.

WARRINGTON Circuit Judge.

This is a proceeding supplementary to an ejectment suit. The appellee was plaintiff in the ejectment suit, and the appellant was defendant. The land in controversy is an undivided eight-twentieths of two quarter sections situated in Ontanagon county, Mich., being the northwest and southeast quarters of section 30, in township 50 N., range 39 W. Upon the first trial verdict and judgment were rendered for defendant; but the judgment below was reversed in this court and a new trial awarded, it being held here that the court below erred in not instructing the jury to find for the plaintiff. 147 F. 380, 77 C.C.A. 558. Upon retrial below verdict was rendered for plaintiff Rich, with a finding as corrected that the value of the entire land was $24,119.20, and that the improvements made on the land had not increased its value beyond the waste committed. Rich elected under the statute to abandon the land to appellant and judgment was entered against it for $9,647.70, being the value of eight-twentieths of the land as fixed by the jury. This judgment was held to be a lien upon this undivided portion, and execution was awarded accordingly. Thereupon the present proceeding, equitable in character, was commenced setting up a claim for taxes alleged to have been paid by the Copper Mining Company and its predecessors in title from 1867 to 1907, amounting to $18,130.26, and also for interest thereon under a statute dated April 6, 1869, from the date of the first payment to the date of the last one at the rate of 25 per cent. per annum. An order was also sought to enjoin Rich from enforcing his judgment upon execution, and it was prayed that ultimately the taxes paid and the interest be set off against the judgment. An injunction was issued restraining Rich as prayed in the bill, but subject to certain conditions, among which was one requiring the Copper Mining Company to execute a bond in the penal sum of $15,000, with sureties, conditioned for the payment to Rich of his judgment and interest, unless reduced by an allowance of taxes, and in that event for payment of the balance if any should remain. The rights of Rich to execution upon his judgment and of the Copper Mining Company to the injunction were disposed of by the learned trial judge in an opinion reported in 163 F. 211, 212, 89 C.C.A. 637, which was subsequently adopted and the orders there made were affirmed by this court. Id., 163 F. 207, 89 C.C.A. 637. In the opinion of Judge Severens in the first citation and that of Judge Knappen in the second one may be found further details of the facts. The result of the present proceeding in the court below was a denial of the right to recover any of the taxes claimed and the granting of a decree against appellant upon its bond for the amount of Rich's judgment with interest and costs.

The right of the mining company to maintain the present proceeding was in our judgment correctly stated below by Judge Knappen:

'It is settled by the decisions of the Supreme Court of Michigan that a proceeding for enforcing this lien (for taxes paid) can be had only in equity; and 'on the foot of the adjudication against the tax title.' Weimer v. Porter, 42 Mich. 569 (4 N.W. 306); Ellsworth v. Freeman, 43 Mich. 488 (5 N.W. 675); Tillotson v. Circuit Judge, 97 Mich. 585 (56 N.W. 945).'

The mining company was through mesne conveyances the sole owner of the northeast and southwest quarters of section 30, and of the undivided twelve-twentieths of the northwest and southeast quarters of the section; and Rich was through mesne conveyances the owner of the undivided eight-twentieths of the quarter sections last mentioned. The undivided eight-twentieths interest was formerly owned by Samuel H. Broughton, who died intestate December 3, 1860. He had no issue, but left surviving his widow, Sarah N. Broughton, and his father, Shebuel H. Broughton.

Under the statute of Michigan then in force, the widow took a life estate and the father the remainder in fee in this interest. 147 F. 382, 77 C.C.A. 558. The widow died in 1881; and we agree to the conclusion reached, and for the reasons stated by the judge presiding at the last trial, that the present appellant's predecessor in title, viz., the Victoria Mining Company, acquired the interest of Mrs. Broughton in the land by acceptance of the deed executed in 1866, and, further, that during the time commencing with the conveyance of Mrs. Broughton (in 1866) and ending with her death (in 1881) the company last named was, as holder of her life estate, obligated to pay the taxes assessed and accruing upon the eight-twentieths of the land in dispute. It follows that appellant's right, if any exist, to recover taxes at all it can apply only to taxes paid after the death of Mrs. Broughton.

The main contention made by appellant in the ejectment suit was that under a statute of limitations of Michigan it acquired title to the eight-twentieths by adverse possession maintained through 15 consecutive years. 147 F. 383, 77 C.C.A. 558. One of the contentions now made by appellant is that, since its claim of adverse possession failed in the ejectment suit, the court cannot consistently hold that appellant's possession obligated it as a tenant in common to pay the taxes in question; in other words, that, since the possession was not adverse within the meaning of the statute of limitations, it was not such possession as would imply a duty to pay taxes on the undivided interest found not to belong to appellant-- at least without right of recovery over against the actual owner. This would seem impliedly to concede that, if appellant was in adverse possession of the undivided eight-twentieths interest during any portion of the time between the death of Mrs. Broughton and the commencement of the ejectment suit (though less than the time prescribed for acquiring title), it was bound during such time to pay the accruing taxes. This implied concession is emphasized by the fact that appellant and its predecessors in title were all the while claiming exclusive title to the whole of the land.

Apart from any concession of counsel, however, we are disposed to hold that the duty of one tenant in common towards his cotenant upon the subject of paying taxes is to be distinguished from his duty on the same subject towards the state. Laying aside for the moment the question of contribution: To the state, tenants in common (in the absence of statute specially authorizing each to pay on his own portion) may, like a mortgagor and his mortgagees, be said each to owe the duty to pay the taxes upon the whole of the property. Conn. Mut. L. Ins. Co. v. Bulte, 45 Mich. 113, 120 to 122, 7 N.W. 707.

The duty of one tenant in common towards his cotenant, or his inability to compel contribution from his cotenant, must in the end rest upon the receipt of benefits, actual or presumed, by the taxpaying tenant equal to the amount of taxes paid. If, under claim of exclusive title, he is maintaining a possession adverse as against his cotenant, then the one in possession will be conclusively presumed to have received benefits equal to the maintenance; but, if his possession is not of such adverse character, he will not, in the absence of proof to the contrary, be presumed to have received benefits.

In Dubois v. Campau, 24 Mich. 360, 367, Campbell, Ch. J., when speaking of the possession of a tenant in common of a city lot and also of a tax title in dispute, said:

'It may be regarded as settled in this state that one in possession of land claiming it as his own is bound to pay the taxes imposed upon it-- certainly such as are imposed and become due during such possession.'

See, also, Cole v. Cole, 57 Misc.Rep. 490, 108 N.Y.Supp. 124; Clute v. Clute, 197 N.Y. 439, 446, 90 N.E. 988, 27 L.R.A. (N.S.) 146, 134 Am.St.Rep. 891; Wistars' Appeal, 125 Pa. 526, 534, 17 A. 460, 11 Am.St.Rep. 917; O'Hara v. Quinn, 20 R.I. 176, 38 A. 7.

For reasons that we shall state later, we are not satisfied that appellant's predecessors in title had such possession of the land embraced in the ejectment suit or exercised such control over it between the time of the death of Mrs. Broughton and the date of the deed to appellant as fairly to bring them within the rule quoted and deducible from the decisions just cited. We are of opinion, however, that under the pleadings and evidence appellant itself must be treated as falling within that rule with respect to the time of its own possession. On January 17, 1899, appellant obtained a quitclaim deed (in name but containing a warranty) from Benjamin Howard Coffin, which seems to have embraced, not only the undivided eight-twentieths in question in the northwest and southeast quarters, but the whole of section 30. Appellant, as will be seen later, thereupon entered upon each of the quarters of the section in such a way as to indicate that it claimed title to the whole. By paragraph 5 of its bill filed in this proceeding appellant averred:

'That the said Victoria Copper Mining Company, after the said 17th day of January, 1899, entered into the open, notorious, hostile, and continuous possession of said lands, and have improved the same by erecting buildings thereon and mining thereon and thereunder, and still continues to occupy them as though it was the owner of the whole thereof in fee simple.'

This paragraph is admitted by the answer. It will be...