Butler v. Executors of Porter ( 1865 )

Martin Ch. J.:

We find no error in the rulings and finding of the Circuit Judge. The plaintiff and defendant are tenants in common of the land. The title under which the plaintiff in error sought to maintain this action was. acquired through tax sales. The facts of the case, as exhibited by the bill of exceptions, do not show that although an undivided interest in the land was sold fora series of years, yet that the on'e-third interest of the. defendant was ever sold, or that he was ever in default of payments of the amount for which he was liable, up. to the year 1852. I think the inference is in his favor, as the taxes for one-third had been regularly paid up to the year 1852. How, then, as the counsel for the defendant in error suggests, can we identify the particular interest sold for delinquent taxes for prior years, to the. prejudice of either party? The finding of the Circuit Judge clearly and sufficiently illustrates these facts.

As to the taxes of 1852 — Porter and Butler then being tenants in common, neither, by the payment of taxes nor purchasing in at a tax sale a common title, could ;divest the other of his property. He could only acquire a right of action for the aliquot proportion of' the money paid upon the interest of the co-tenant.— See Page v. Webster, 8 Mich., 263.

Judgment is affirmed, with costs.

Christiancy J.:

The payment by Porter of the taxes of 1843, 1844,. 1845, 1846 and 1847, on the undivided third of the land, though made by him before he acquired- his title, and though it does not affirmatively appear upon whose interest it was paid, was a good payment on one undivided third of the land, and only the balance could be sold for the taxes of those years; and as Porten showed, a good title, derived from the United States, which vested in him January 19th, 1858, it was incumbent on the defendant, Butler, if he would defeat the plaintiff’s title by the tax deeds for those years for the other' one-third or two-thirds, to identify the interest he had acquired by those deeds, and to show that the undivided' interest claimed by him under those deeds included the third owned by the plaintiff. Until this should be done, it must remain entirely uncertain what or whose particular undivided -interest the defendant had •acquired by his tax deeds. This the defendant, failed to do, and, therefore, failed to establish any title in himself for those years.

As to the taxes of 1851, it appears by the finding that the entire lot was assessed to one Whiting as nonresident ; that the taxes were paid on one undivided third by Guild, (from whom defendant had, in December, 1852, purchased his tax title of one-third for the years 1848, 1844,-1845 and 1846); that defendant, Butler, purchased one-third for the taxes of this year, at the tax sale made October 3d, 1853, at which time he was the owner of one-third, by title derived from the United States, and which became vested in him April llth, 1853, and that the remaining one-third was not sold for the taxes of 1851 — for what reason does not appear, though the natural inference would' be that it must have been paid. We entirely agree with the Circuit Judge, that the tax on the one-third not sold may have been paid -either by defendant, Butler, or by Porter, (who had owned one-third from January, 1853). In the absence ■of all testimony, we cannot say by which it had been paid, or was most likely to have been paid. But before Butler could defeat Porter’s title by the deed for the unpaid taxes of the year, it was incumbent on him to show that the third delinquent for taxes, and sold for such delinquency, was not his own, or, in other words. that it Avas Porter’s _ third. This he could, easily have done, if true, by showing that his own third had been paid. Until he should do this, he left it quite as probable, upon the evidence, that the third sold Avas his oavu as that it Avas Porter’s.

' As to the taxes of 1852, it appears by the finding that the entire lot was assessed as non-resident to one Whiting; that Guild paid the tax on one-third, (he having held the tax titles, as above stated, subsequently conveyed to Butler,) and that the remaining two-thirds were purchased by Butler at the tax sale of October, 1853, for Avhich he received his deed in November, 1854. At the time of this purchase by Butler of the two-thirds, he claimed and owned one undivided third of the land, by- title derived from the United States, and also claimed title to one-third by deeds for taxes of 1843 to 1846 inclusive, by purchase from Gxrild, and to two-thirds by deed for taxes of 1847. But, to say nothing of the tax titles, he had a good. title to one undivided third of the lot; and the tax on one-third having been paid by Guild, it is evident his tax purchase of the two-thirds for the taxes of this year 1852 must have included his own one-third, for the non-payment of the tax upon which, he Avas himself .in default to the State. This brings this sale precisely within the letter and spirit of the rale laid down by this - Court in Page v. Webster, 8 Mich., 263. As owner of the one-third, it was his duty to have paid his portion of the tax before sale. It is insisted by the counsel for plaintiff in .error, (defendant below,) that this duty is only imposed by possession. This is not the ground of the decision in Page v. Webster. The duty springs from the ownership. The sale is an entire thing based upon the delinquency in the payment of the taxes for which the sale is made, and the purchaser cannot be allowed to acquire the title of others in the property by a sale based, in part, upon his own default. We are entirely satisfied with the principle of that decision, and see no, reason for departing from it.

The judgment must be affirmed, with costs.

Campbell J. concurred. Cooley J. did not sit in this case, having been of counsel.