Lawton v. Estes , 167 Mass. 181 ( 1896 )

Morton, J.

The question is, whether, upon the special findings of fact which it is agreed are to be treated as in the nature of a report, the decree was right as to Joseph D. Estes.

A valid sale for taxes to a stranger creates a paramount title in this State after the period for redemption has expired. Langley v. Chapin, 134 Mass. 82. There is nothing here to show that the sale was not valid, and the period for redemption expired several years ago. The sale was not, however, to a stranger. The defendant was a co-owner of the reversion with the appellant and the other plaintiffs; and the appellant contends that the purchase by the defendant at the tax sale constituted him a trustee for his cotenants, with the right of redemption in them. The prayer of the bill is that he may be declared a trustee, and ordered to convey.

But we think that the appellant is not in a position to take advantage of this contention. It is found as a fact that he knew of and assented to the proceedings in regard to the tax sale and to the purchase by the defendant, and that he and Benjamin joined in the scheme to defraud the other cotenants. Now that the scheme has failed, he seeks the aid of a court of equity to compel his partner in the attempted fraud to restore to him property which he had suffered him to acquire for the purpose of promoting and carrying out the contemplated fraud. To obtain the relief which he seeks, he is obliged to rely upon the fraud to which he was a party. In such a case it is plain that equity will not aid him to recover what he has lost, and as between him and the defendant will not disturb the possession of the latter. Wall v. Provident Institution for Savings, 3 Allen, 96. Wheeler v. Sage, 1 Wall. 518. Goddard v. Putnam, 22 Maine, 363. Osborne v. Moss, 7 Johns. 161. It may be, as the counsel for the appellant suggests, though we do not find it necessary to decide the question, that, if he had seasonably repudiated the attempted fraud and notified his cotenants, he could have recovered from the defendant. Taylor v. Bowers, 1 Q. B. D. 291. But he did not do that. He was willing that the scheme should succeed, and expected to be benefited by it if it did. Decree affirmed.