Smith v. Borradaile

The argument of appellant on rehearing is devoted mainly to upholding the contention that the tax title on which he relies should be held effective, because, being in possession and holding adversely to the cotenants after ouster, he could build up a new and independent title by the purchase of the tax deed, which was founded upon a sale of the taxes antedating the acquisition of his interest in the land. This same matter was urged before, and is given thorough consideration in the very able opinion heretofore written by Mr. Justice BARNES. We have examined the cases upon which appellant relies, namely: Oswald v. Wolf, 129 Ill. 200, 21 N.E. 839; Sands v. Davis, 40 Mich. 14; Allen v. Dayton Hotel Co., 95 Tenn. 480, 32 S.W. 962; Lybrand v. Haney, 31 Wis. 230; Griffin v. Turner, 75 Iowa 250, 39 N.W. 294; Collier v Smith, 132 Ark. 309, 200 S.W. 1008; Welner v. Stearns,40 Utah, 185, 120 P. 490, Ann Cas. 1914C, 1175; Niday v. Cochran, 42 Tex. Civ. App. 292, 93 S.W. 1027; Stubblefield v. Hanson (Tex.Civ.App.) 94 S.W. 406; Boynton v. Veldman,131 Mich. 555, 91 N.W. 1022; Olmstead v. Tracy, 145 Mich. 299,108 N.W. 649, 116 Am. St. Rep. 299; Webster v. Webster, 55 Ill. 325; Stoll v. Griffith, 41 Wash. 37, 82 P. 1025.

We refrain from a prolix analysis of these cases; all were cited and considered by this court heretofore, and many carefully criticized in the previous opinion. We observe this, however, in regard to them, that they display a remarkable obscurity in the statement of basic doctrine and a looseness of expression which, in our opinion, is attributable to the fact that they confuse two distinct principles and apply them to distinct sets of facts indiscriminately. The first principle is this:

"It is the rule in most jurisdictions that the owner of the land cannot add to or strengthen his title by buying in at a tax sale." 3 Cooley on Taxation (4th Ed.) 2852; 1 Blackwell's Tax Titles, § 566; 46 L.R.A. (N.S.) 209; 26 L.R.A. (N.S.) 1167; Black on Tax Titles (2d. Ed.) 338.

The second is:

"Where land is owned by joint tenants, coparceners. or tenants in common, and taxes are assessed upon it as a whole and it is sold for nonpayment of the same, neither of the cotenants can purchase a title at the sale which shall be paramount to that of his companions, or operate to dissolve the relationship. His payment is regarded as simply discharging the assessment, and it will inure to the benefit of all. He acquires no other or greater interest than he held before, except that he has a claim upon the others for reimbursement according to their respective shares." Black on Tax Titles, § 282.

See, also, 38 Cyc. 48, 78 R.C.L. 363; 3 Cooley on Taxation (4th Ed.) 2864.

Of the cases cited by appellant, supra, the following are concerned with the application of the first proposition, and not with the rule or with the exception to it where a purchaser is a tenant in common, viz.: Oswald v. Wolf, 129 Ill. 200,21 N.E. 839; Lybrand v. Haney, 31 Wis. 230; Griffin v. Turner,75 Iowa, 250, 39 N.W. 294; Collier v. Smith, 132 Ark. 309, 200 S.W. 1008; Welner v. Stearns, 40 Utah, 185, 120 P. 490, Ann. Cas. 1914C, 1175.

Under the first proposition the purchaser is unable to establish a tax title by the purchase of a tax deed by reason of his relationship to the land by way of possession and title. Under the second proposition he is estopped from asserting an independent title growing out of a tax sale purchase because of his relationship to others who have an interest in the land. It is apparent that the two principles are essentially different; yet it is deserving of notice that Oswald v. Wolf, which is authority only for the first proposition, is almost uniformly cited in the above cases as authority for an exception to the rule as to the equitable estoppel against cotenants asserting title derogatory to the title of the cotenancy.

The remaining cases, which have to do with an exception to the rule in regard to the purchase of a tax title by a cotenant, do not deserve any further attention than that expressed in the previous opinion. Some consider the matter upon the fact that a stranger purchased the tax title, which was a paramount title and destructive of the cotenancy. Sands v. Davis, supra. Others are concerned with the right as between mortgagee and mortgagor. Allen v. Dayton Hotel Co., supra. Others are affected by the doctrine that the rule does not apply unless the tenancy is under the same instrument of title. Niday v. Cochran, supra; Boynton v. Veldman. In Olmstead v. Tracy, it was specifically announced that there was no tenancy in common. Stoll v. Griffith was upon the facts which clearly distinguished it from this case, in that the question arose upon the claim that the purchaser, whose title was defective because of an insufficient power of attorney from the grantor, became thereby a tenant in common; and Wright v. Sperry could have been determined solely upon the question of the estoppel as between mortgagor and mortgagee.

However unconvincing these cases may be as authority, the language employed by them is in support of the contention urged by appellant. With this contention, however, as it is applicable to the facts in this case, we do not agree. That one tenant may oust his cotenants is clearly the law in this jurisdiction, and, after ouster, certainly he may establish a title by adverse possession. It does not follow from this, however, that, even after ouster, he may rest his title upon the purchase of a tax certificate, as was done in this case, during the existence of a cotenancy. Equity and sound public policy forbid his so doing, since to hold the contrary would offer too great facility for an intriguing cotenant to convey by warranty deed to a stranger, thus ousting the cotenants, and immediately collude with his grantee to purchase an outstanding tax lien and thereon build up a paramount tax title. The lapse of time necessary for the establishment of the title by adverse possession is a protection to the cotenants that is entirely lacking, should the ability to rely successfully upon a tax title, as is contended in this case, be granted.

We adhere to the former opinion.

PARKER, C.J., and BRATTON, J., concur.