Wilson v. Linder

• Court: Idaho Supreme Court
• Writing for the Court: AILSHIE, J.
• Citation: Wilson v. Linder, 21 Idaho 576, 123 P. 487 (Idaho 1912)
• Decision Date: 30 March 1912
• Parties: WILLIAM E. WILSON et al., Respondents, v. ANTHONY J. LINDER et al., Appellants

123 P. 487

21 Idaho 576

WILLIAM E. WILSON et al., Respondents, v. ANTHONY J. LINDER et al., Appellants

Supreme Court of Idaho

March 30, 1912

COTENANCY-JOINT REMAINDERMEN IN EXPECTANCY-DUTY TO PROTECT TITLE-PAYMENT OF TAXES BY REMAINDERMEN - CONTRIBUTION BY JOINT REMAINDERMEN-LACHES-LIMITATION OF ACTION-ADVERSE POSSESSION-MERGER OF LEGAL AND EQUITABLE ESTATES.

(Syllabus by the court.)

1. The rule that a cotenant cannot take advantage of any defect in the common title by purchasing an outstanding title or encumbrance and assert it against his companions in interest is applied in this case to a joint remainderman in expectancy, and accordingly held that a remainderman in expectancy cannot acquire a tax title to the property so as to exclude or cut off the expectancy of his coremaindermen where the expectant interests flow from a common title provided the other remaindermen contribute or offer to contribute their respective shares of the money expended for the protection of such title within a reasonable time.

2. Where one of several remaindermen in expectancy was in possession of the property as lessee of the life tenant paying the annual rental to the life tenant during the years for which the taxes were allowed to go delinquent, and he subsequently buys the property at delinquent tax sale, he is under no obligation to personally bear the expense of such taxes, and it is the duty of the other remaindermen who claim the protection of such tax title to bear their respective shares of the expenses incurred in the purchase of the property and the payment of such taxes and assessments.

3. It is the duty of a life tenant and those succeeding to his estate by purchase to pay the taxes on the property, and they cannot by payment acquire any adverse rights against the remaindermen; but such duty and obligation does not rest on a mere lessee from the life tenant who pays his annual rent for the land to the life tenant and acquires no other profit or benefit from the lands on account of which a duty arises to defray taxes and assessments.

4. Where a remainderman in expectancy has purchased the land at tax sale and other remaindermen with like expectant interests, all flowing from a common source, seek the protection of the tax deed acquired under such purchase equity imposes upon them the duty of paying or offering to pay their respective shares of the money thus expended, and they must do so within a reasonable time in order to entitle them to equitable relief.

5. Equity does not obligate a cotenant to pay out his own money to protect the common title, but it rather permits him to do so, and when he has done so it then lays an obligation upon the other cotenants to exercise reasonable diligence and do equity in contributing their shares in the way of reimbursing him for his outlay, and a failure to do so within a reasonable time will be taken as an election on their part to allow him to take the benefit of his expenditure, and the title he has thus acquired for his individual use and benefit.

6. Where a remainderman in expectancy purchased the property at tax sales for the taxes imposed for the years 1900 and 1901 and his coremaindermen in expectancy had notice of this fact and did not contribute or offer to contribute their respective shares, and thereafter in November, 1908, commenced an action to have their respective titles in expectancy in the property quieted, and still did not pay or offer to pay their share of the money expended to protect such tax title, held, that they are guilty of such delay and laches and lack of equity as to preclude any right of recovery.

7. Where a remainderman in expectancy took a deed in January, 1902, from the life tenant and at a time when it could not be known or foreseen whether the life estate would mature into a fee simple title or the remaindermen would ever acquire any title or interest in the estate, and the deed thus executed purported to convey an absolute and fee simple title to the estate, and the purchaser took such conveyance believing she was acquiring an absolute estate and entered into the possession of the property thereunder and continued in the open, exclusive and notorious possession thereof, occupying and cultivating the same continuously until the commencement of an action by the other remaindermen in expectancy in November, 1908, paying all taxes and assessments thereon, and making improvements: Held, that such facts constitute color of title and adverse possession within the meaning of secs. 4038, 4039 and 4040, Rev. Codes, and bar any right of recovery on the part of the other remaindermen in expectancy.

8. The general and prevailing rule that where legal and equitable titles both meet in the same person, the equitable title is merged in the legal title is subject to the restriction that the merger takes place only where the legal and equitable estates are coextensive and commensurate.

APPEAL from the District Court of the Third Judicial District for Ada County. Hon. John F. MacLane, Judge.

Action to quiet title. Judgment for plaintiffs. Defendants appeal. Reversed.

Reversed and remanded with direction. Costs awarded in favor of appellants. Petition for rehearing denied.

Ira E. Barber, for Appellants.

Notice was served on plaintiffs as early as 1902 of the adverse claim of defendants and cross-complainant, and this adverse claim and tenure supported by conduct giving it the color of integrity continued for more than five years prior to the initiation of this action and amounted to an ouster. (38 Cyc. 25, par. B; Feliz v. Feliz, 105 Cal. 1, 38 P. 521; Alvarado v. Nordholt, 95 Cal. 116, 30 P. 211; Winterburn v. Chambers, 91 Cal. 170, 27 P. 658.)

The taking of a deed purporting to convey the entire estate and having the same recorded was within itself notice of the adverse claim. (Ames v. Howes, 13 Idaho 756, 93 P. 35.)

Even a quitclaim deed in substantive form will start running the statute of limitations. (Packard v. Johnson (Cal.), 4 P. 638; Johnson v. Hurst, 10 Idaho 308, 77 P. 784.)

A claim asserted under the provisions of such deed is strictly a claim under color of title. (Wright v. Mattison, 59 U.S. 50, 15 L.Ed. 280; Little v. Crawford, 13 Idaho 146, 88 P. 975.)

If plaintiffs could sue during the lifetime of Jesse Wilson, at any time after the entry of possession under the deed of 1902, under which they claimed the whole estate, then the statute of limitations began to run against them from the time they had notice, or from the conduct of defendants should have known of the adverse claim. (1 Cyc. 1072, par. B, and cases cited; Cox v. Tompkinson, 39 Wash. 70, 80 P. 1005; Schlarb v. Castaing, 50 Wash. 331, 97 P. 289.)

If a tenant pays rent and the landlord enjoys the same, the tenant is under no duty to pay taxes and may purchase the property at tax sale. (Keith v. Keith, 26 Kan. 26; Smith v. Newman, 62 Kan. 318, 62 P. 1011, 53 L. R. A. 934; Uhl v. Small, 54 Kan. 651, 39 P. 178.)

If a tenant in common is not under obligations to pay taxes on his cotenant's interest, he may buy it in for his own benefit. (Bennet v. N. Colo. Land etc., 23 Colo. 470, 58 Am. St. 281, 48 P. 812.)

In order to preclude a tenant in common from purchasing at a tax sale there must be something which makes it his duty to pay the taxes. (Blackwood v. Van Vleit, 30 Mich. 118; Moss v. Shear, 25 Cal. 38, 85 Am. Dec. 94; Sands v. Davis, 40 Mich. 14; Palmer v. Ozark Land Co., 74 Ark. 253, 85 S.W. 408; Willard v. Ames, 130 Ind. 351, 30 N.E. 210; Nagle v. Tieperman, 74 Kan. 32, 10 Ann. Cas. 977, 85 P. 941, 88 P. 969, 9 L. R. A., N. S., 674.)

Where a cotenant claims adversely to his cotenants, he may buy at a tax sale and his purchase does not inure to the community. (Peck v. Lockridge, 97 Mo. 549, 11 S.W. 246.)

An adverse claimant may strengthen his title by buying at a tax sale. (Atkison v. Dixon, 89 Mo. 468, 1 S.W. 13; Jeffery v. Hursh, 45 Mich. 59, 7 N.W. 221; Blackman v. Van Vleit, supra; Carpenter v. Smith, 76 Ark. 447, 88 S.W. 976.)

A cotenant may by delay lose the right to benefit by the purchase of an outstanding title by his fellow-owner. (Stevenson v. Boyd, 153 Cal. 630, 96 P. 284, 19 L. R. A., N. S., 525; Mahoney v. Nevins, 190 Mo. 360, 88 S.W. 731.)

And he must elect to do this within a reasonable time. (Stevenson v. Boyd, supra; Savage v. Bradley, 149 Ala. 169, 123 Am. St. Rep. 30, 43 So. 20; Mandeville v. Solomon, 39 Cal. 125; Craven v. Craven, 68 Neb. 459, 94 N.W. 604; Buchanan v. King, 22 Gratt. (Va.) 414; Stevens v. Reynolds, 143 Ind. 467, 52 Am. St. 435, 41 N.E. 931; Barnes v. Boardman, 152 Mass. 391, 25 N.E. 623, 9 L. R. A. 571; Goralski v. Kostuski, 179 Ill. 177, 70 Am. St. 98, 53 N.E. 720; Reed v. Reed, 122 Mich. 77, 80 Am. St. 541, 80 N.W. 996; Cedar Canyon etc. v. Yarwood, 27 Wash. 271, 97 Am. St. 841, 67 P. 749, 22 Morr. Min. Rep. 11; Freeman on Cotenancy and Partition, 2d ed., 156.)

Where a tenant is free from fault and under no obligation to pay the taxes, it is difficult to assign any reason for restraining him from bidding to his own use at a tax sale. (Freeman on Cotenancy and Partition, 158; Boynton v. Veldman, 131 Mich. 555, 91 N.W. 1022; Sands v. Davis, 40 Mich. 14.)

E. J. Dockery, and Cavanah & Blake, for Respondents.

It devolved upon Jesse Wilson and his successors in interest to pay the taxes on this land, and if they failed to pay the taxes and permitted the land to be sold for taxes and bought the land at a tax sale and a certificate was issued to them and thereafter a tax deed, they could not acquire any interest in the land adverse to the respondents. (Black on Tax Titles, sec. 285; Solis v. Williams, 205 Mass 350, 91 N.E. 148; Widersum v. Bender, 172 Mass. 436, 52 N.E. 717; Murch v. Smith Mfg. Co., 47 N.J. Eq. 193, 20 A. 213;...