Johnston & Seats v. Smith's Adm'r , 70 Ala. 108 ( 1881 )

SOMERVILLE, J.

This is a bill filed by the appellee to enforce a vendor’s lien on certain lands described. It was amended so as to seek a redemption of a portion of the lands under a tax-sale made on May 1st, 1871, at which the appellants, Johnston & Seats, became the purchasers.

It is manifest that the judgment claim held by the appellee, Taylor, against Ellett and McGaha, having been rendered on a note given for th& purchase-money of these lands, was a lien on them at the time, and continues to be, unless it has been lost, or overridden by some superior, equity accruing in behalf of the appellants, Johnston & Seats, who claim the lands as purchasers from Ellett, the original vendee, and also as pui’chasers at tax-sale.

Equity will, upon principles too well settled for discussion, assume jurisdiction to enforce a vendor’s lien; and such jurisdiction having rightfully attached, it will be retained so as to make it effectual for the purposes of complete relief. — 1 Story’s Eq. Jur. § 64 (h). It is a familiar maxim, that courts of equity never undertake to “do justice by halves,” and its powers are, therefore, always promptly exerted to remove every impediment to the enforcement' of a lien, especially in cases where such impediment, or obstacle, constitutes a cloud upon the title of real estate.—Dargan v. Waring, 11 Ala. 988. And this rule has been held to apply with peculiar propriety to a claim of title set up under an illegal tax-sale, which may intervene to prevent the property from bringing a fair price, when exposed to sale under the decree of the court having jurisdiction to enforce the lien.—Blackwell on Tax-Titles, 491*; Gillett v. Webster, 15 Ohio, 623; O'Brien v. Coulter, 2 Blackf. 421.

And whether this be regarded as a bill to redeem, under the special prayer for that purpose, or to declare the tax-sale illegal, and the certificate of purchase a cloud on the title of the lands, _under the general prayer for relief, it is obviously not multifarious ; because the case made by the statements of the bill is that of a void, and not of a valid tax-sale. The purchasers held a mere certificate of purchase, the tax-deed not having been m^de or delivered to them. They, therefore, had no title to the lands in question, even if the sale were legal.—Annan v. Baker, 49 N. H. 161; Blackwell on Tax-Titles, p. 296.

The sale, however, was not legal, and the purchasers acquired, under or by virtue of it, no rights as against the complainant. They were in possession oi these lands, claiming under Ellett, the original vendee, who had quit-claimed all his interest to them, and had also transferred to them his bond for title executed by his vendor, one McGaha. The rule is settled, in relation to tax-sales, that a purchase, made by one whose duty it is to pay taxes, operates, not as a valid purchase, but as a payment only.—Cooley on Taxation, p. 316; Blake v. Howe, 15 Amer. Dec. 681, note. And it is expressly held, and as we think properly, that this principle applies to one in possession of lands under a contract for their purchase. He is not permitted to strengthen his title by purchasing at a tax-sale. His duty is to pay the taxes, if he desires to perfect his title; and a purchase by him at tax-sale is, in legal effect, a mere payment. Haskell v. Putnam, 12 Me. 211; Voris v. Thomas, 12 Ill. 112 Quinn v. Quinn, 27 Wisc. 168 ; Blake v. Howe, 15 Amer. Dec. 690, note. The appellants, Johnston & Seats, under this view,, were not entitled to.be reimbursed for the money bid by them at the tax-sale; and the money tendered by the complainant,, and placed by agreement of parties in the custody of the court for its disposition, was properly returned, by order of the chancellor, to the complainant. The certificate of purchase was properly ordered to be cancelled, as a cloud on the title of the lands purchased, and there was no error in perpetuating the injunction, restraining the purchasers from further prosecuting-their proceedings to force the tax-collector to make them a tax-deed to these lands.

It is contended that no relief can be granted complainant in this suit, because, it is said, the contract made between him and Ooltart, stipulating for the prosecution of this cause, is void for champerty and maintenance. It is a sufficient answer to this argument, that Ooltart had a vital interest in the success of this, suit, because the satisfaction of complainant’s judgment out of these lands would enable him, Ooltart, to obtain payment of a claim held by him, out of certain funds in the bankrupt, court, against which both he and complainant had proved, and which was inadequate for the satisfaction of both debts due by the bankrupt’s estate. The doctrines of champerty and maintenance were designed to prevent any mere officious intermeddling by strangers, in law-suits in which they have no pecuniary interest. Where one has such an interest, there is no principle" of public policy, or law, that would forbid his furnishing funds with which to aid in prosecuting the suit, or which would prohibit his participation in the division of the subject-matter of litigation, when recovered.—Thompson v. Marshall, 36 Ala. 504; McCall v. Capehart, 20 Ala. 521; Thallhimer v. Brickerhoff, 15 Amer. Dec. 319, note.

Besides, if the contract between Ooltart and complainant were admitted to be champertous and void, its illegality could in no manner taint or affect this suit. When a party plaintiff can establish his cause of action, without the necessity of proving or relying upon an illegal agreement, in any way connected with it, he cannot be defeated by the plea of illegality, because the connection is then too remote for the one to be affected by the vice of the other.—Gunter v. Leckey, 30 Ala. 591. If an attorney, for example, should make a champertous- agreement with his client, to receive as a fee half the amount he might recover on a promissory note due him by a defendant for borrowed money, it would come with poor grace from the latter, that he should be exonerated from paying anything on the note because of such illegal agreement between the payee and a third person.

The chancellor did not err in refusing to allow the defendants, Johnston & Seats, to set off the value of the inchoate or contingent right of dower purchased by them from Lydia McGaha in the lands in contention. It is well settled, we think, that while such an interest may be released by the wife, or conveyed by her jointly with her husband, it is not assignable by transfer to a stranger, and such attempted assignment is wholly inoperative as a conveyance.—Jackson v. Vanderheyden, 17 Johns. 167 (8 Amer. Dec. 378); Saltmarsh v. Smith, 32 Ala. 404; 1 Bish. Marr. Women, § 350; Wells’ Sep. Est. Marr. Women, § 367.

It has been, furthermore, settled by this court, in Martin v. Wharton, 38 Ala. 637, that such inchoate right of dower is not available as a set-off under the statute, because its precise value can not be measured by a pecuniary standard.

There was no error in the chancellor’s rendering a decree in the absence of the original of the exhibit, which purported to be a copy of the title-bond executed by McGaha to Ellett, or of the bond of Ellett and McGaha. The. correctness of these exhibits is admitted in the answers, and they are also agreed to be admitted in evidence, by written consent of counsel, without proof of execution.

There can be no question of the power of a, Chancery Court to' issue a writ of possession, or assistance, for the benefit of one who has purchased land at a sale made under its decree, where the premises are withheld by a defendant, or any one who enters pendente Ute by his permission, or by a mere trespasser ; for all such are concluded by the decree.—Creighton v. Paine, 2 Ala. 158; Trammell v. Simmons, 8 Ala. 271; Thompson v. Campbell, 57 Ala. 183; Code 1876, § 3906. It was the duty of the register, to execute and deliver a deed to the purchaser, within five days after the sale, upon his complying with the terms of the sale, and paying the proper fee for executing the deed.—Code, § 3208. There is no legal objection, which we can see, to the order of the chancellor placing Coltart in possession of the purchased lands, prior to the confirmation of the sale.

It is further assigned for error in this case, that the chancellor improperly dismissed the petition of the appellants, praying for an order securing the growing crops on the premises sold by the register under the decree of the court and purchased by Coltart. • There was no error in this, for the reason, that the growing crops are so far regarded as realty, as that they follow the title, and pass with it to the purchaser. This point was expressly so adjudged in the case of Thweatt v. Stamps, decided at the last term of this court, and is well settled by authority. — 2 Jones on Mortg. § 1658. The appellants purchased the land originally subject to the vendor’s lien, and planted their crops, subject to the risk of a foreclosure. It has been held in such cases, that the sheriff or other officer, in selling, has no authority to reserve the way-growing crops, and that, if he were to do so, not making the reservation in the deed delivered to the vendee, it would avail nothing.—Lowell v. Schenck, 24 N. J. Law (4 Zab.), 89. The relief prayed was, furthermore, against Coltart, the purchaser, who is not a party to this record, and it was not sought against the appellee in this suit. The question could not be reviewed by this court, in the absence of the party .who is so vitally concerned in the result of its decision.

It is obvious, from the above principles, that there is no error in the decree of the chancellor overruling the demurrer, and granting the relief prayed; and said decree is accordingly hereby affirmed.

Bjrickell, C. J., not sitting.