| Mich. | Jan 13, 1868
This case comes to this court on appeal by the defendant from the decree of the Circuit Court for the county of Barry, in chancery.
It appears that the southeast quarter of section eight, in township two, north of range eight west, was purchased of the United States ¡by.Voltain Spaulding, who conveyed the west half thereof to Yolney Spaulding, July 31st, 1852; that Yolney Spaulding conveyed the same, on March. 15th, 1854, to George E. Pomeroy, by whom it was conveyed to complainant on November 8th, 1861. It also appears that the east half of the southwest quarter and the northwest quarter of the southwest quarter of said section were sold by the United States to William E. Goodwin, in 1839 ; that the southwest quarter of the southwest quarter of said section was sold by the United States to Thomas Barber, in 1853 ;
It will appear from this statement that at the time of the assessment in 1859, of the south half of the section in one body, and which included the lot deeded by Pomeroy to the complainant, and at the time of the tax sale in that year, when the defendant purchased, and thereafter, the defendant was presumptively the owner, and in this case, upon the facts thereof, must be considered as the owner of at least two of the parcels .which were joined with the lot of the complainant in the assessment, and also in the sale to the defendant; and the question is, whether, under the circumstances, the assessment and sale of the lot conveyed to the complainant were invalid.
Upon the argument, this question was divided into the two following:
First: "Whether the assessing officer could legally embrace in one assessment the different parcels assessed as one in this instance; and, second, whether the defendant, by suffering his own land to be sold, and to himself, in union with
The first question is one of great difficulty, and, as we are able to decide the case upon the second, we forbear to discuss it.
Although the south half of the section was assessed in one body, it yet appears from the case, that upon some portions of it the taxes were paid before the time of sale; and it was entirely practicable for the defendant to have singled out his lots and paid the taxes upon them, if he had been so disposed.
He was not compelled to allow his lots to share the fate of the complainant’s, and can therefore claim no immunity upon the ground that he could only protect his own land by becoming the purchaser of the whole. The sale to the defendant was entire and indivisible, and as such resulted from his failure, from design or otherwise, to pay the taxes on his own land. The very act in which he made default is sought to be turned to his profit at the expense of the complainant. Neither party ought to profit by his default, and the complainant is in no situation to do so. It remains to see that the defendant does not.
The counsel for the defendant endeavored to distinguish this case from Page v. Webster, 8 Mich. 263, and Butler v. Porter, 13 Id. 292. He took the position that these cases were both decided on the ground of ownership by the parties as tenants in common, or the like. It will be seen however, in recurring to the opinion of the majority of the court in the last suit, that such was not the case. At page 302, my brother Christiancy, speaking for the majority of the court uses this language: “But, to say nothing of the tax titles, he (Butler) 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 oicn one-third, for the non-payment of the tax
The principle is here very clearly stated. Tne duty to pay, springs from ownership, and not from the relation subsisting between two or more owners, and it is just as imperative in the case of a single owner as in that of tenants in common; and the default or violation of duty is as palpable in the one instance as in the other.
Whether the estates of the parties are in the same parcel, or in severalty in two adjoining parcels, can make no difference in the principle.
If the two parcels, separately owned by the parties, are so placed as to be involved in the same default and the same sale, as in this instance, the case must be governed by the rule applied under the like circumstances when the estates of the parties are in the same parcel.
The decree of the court below must be affirmed, with costs.