24 Mich. 360 | Mich. | 1872
The first error assigned is, that the court allowed the conveyance made by the city of Detroit, to Francis Palms, for the non-payment of paving taxes, to be read in evidence, without any proof of the regularity of the proceedings for the assessment and levying of the taxes.
But, whether the deed was prima facie evidence of the regularity of such proceedings or not, there was no error
The court, in charging the jury, as requested by the •defendants, “that the plaintiffs could not recover in the notion, because the evidence did not show any right to recover the possession of any share, interest or portion of the premises at the commencement of the suit,” took the whole evidence from the jury and assumed to decide the whole case himself; and the plaintiffs, having introduced •evidence tending to show every fact necessary to enable them to recover, however strongly the evidence of the defendants might have tended to show an exclusive possession of Joseph Campau and an ouster of the plaintiffs and those under whom they claimed, for a sufficient time to bar their rights under the statute of limitations, still all these were questions of fact for the jury, and the court manifestly erred in excluding these facts from the jury and assuming to decide the entire case himself, unless the effect of the tax-deed to Palms (proved by the defendants), and his conveyance to the defendant, Daniel J. Campau, was such as necessarily to cut off all the rights of the plaintiffs and those under whom they claimed.
The court must therefore have been of the opinion, •upon the state of the evidence appearing before him, with
The court seems to have held that the deed executed by Francis Palms (together with the heirs of Joseph Campau) to Daniel J. Campau, did not cut off the interest (whatever it was) of Palms under his tax-deed, and that it did not necessarily convey all the interest of the several heirs of Joseph Campau executing it, to Daniel J. Campau; probably construing it as a conveyance of such interest only as they derived from their ancestor Joseph Campau, and holding that Palms, who ivas not one of the heirs, had joined in the deed only because his wife, who was one of the heirs,, was one of the grantors. Upon no other hypothesis can we-account for the refusal to charge, as requested by the plaintiffs, that “the deed of Palms and others conveyed all the-interest of the grantors in the land to Daniel J. Campan,, and purported to convey the whole of said lot.”
This refusal was clearly erroneous. There is no ground for supposing that Palms joined in the deed for the purpose of rendering effectual the conveyance of his wife,' as to her interest; as her deed without him would have been equally effectual for this purpose. And it is very clear from the face of the deed, that it was intended to- convey,, not only the interest which any of the grantors had as the-heirs of Joseph Campau, but any other interest which any of them had, however acquired, and that it purported to convey the whole lot. It is true • that the deed, immediately succeeding the granting words, and preceding the particular description of the property, uses the language, “ all the right, title, and interest of the parties of the first part in and to all the following described real estate and premises,, situate, lying and being in the counties of Wayne,” etc., [there were lands, situate in other counties conveyed by the
It was no longer an outstanding title (if it ever had been such) in a third person (that is in Palms, who was not a defendant).
But the effect of this transfer from Palms to the defendant Daniel J. Campau, as between the latter and the present plaintiff, or whether he could assert it against them with the same effect as it could have been asserted by Palms, is a question which remains to be considered. And in discussing this question, we shall assume without deciding, that the tax-deed fo Palmá was prima facie evi
Now, upon the hypothesis of such a finding by the jury, what would be the rights of Daniel J. Campau under .the.
Of course if such co-tenant procure another person to bid in the property for him, and to take the deed, this will give him no greater right.
But it is urged that if the land is bid in by a stranger, on his own account, and without- any understanding or collusion with the co-tenant, and a deed be given to the purchaser, such tenant, though the sale have been based in part upon his own default, may purchase in the title and thus acquire the interest of his co-tenant, and set it up
In the present case it is clear enough that defendant claimed on the trial, that Joseph Campau was continually in possession, claiming the whole and treating it as his own, from a period long prior to levy of the tax until his death, long after the sale became absolute and the deed was given to Palms., They introduced evidence tending to show this; and this must be treated as an admission, at least by them, that he was thus in possession. If so in possession, claiming the whole as his own, it was his duty to pay all the taxes (Lacey v. Davis, ubi supra); and justice and good faith to to other owners (or tenants), require that, if one tenant in common is in possession having the use of the whole (and certainly none the less because he claims it as his own), he shall keep down the taxes on the whole during such occupancy; and that he shall not take advantage of his own violation of this duty, to acquire their interest in the land by a sale. Indeed, the law in force at the time this tax was assessed and the sale made, expressly declares that “the person in possession of any real estate at the time any tax is to be collected, shall be liable to pay the tax imposed thereon” (see City Charter as published in 1855, ¶. 50, § 5, Act of April 1888); and if any other person by agreement or otherwise ought to pay it, an action was given to recover it.
It was, therefore, the clear duty of Joseph Campau, upon the hypothesis of the case now under consideration, to pay the- whole of the tax for which this sale was made; and the neglect or violation of this duty, in allowing the land to be sold for the taxes, was a wrong both to the other owners in common (who had a right to rely upon his
The language found in the opinion in Page v. Webster, 8 Mich., 264, in; reference to the purchase “ from a bona-fide purchaser whose title had become absolute, whereby the tenancy had been dissolved,” was used in a case where no duty rested bn the party buying from such purchaser to pay any more than his own share of the tax. It is besides, properly speaking, no part of the decision of the case, a mere saving clause not claimed to apply to the case before the court, and therefore a mere dictum.
But in a case where a party whose duty it is to pay all the taxes on the land, allows it to be sold for such taxes to a stranger who might hold the whole against all parties, though this may terminate the tenancy while such tax-title is held by another, yet it has been terminated by the wrong of the party in default; and when he purchases in the title, he and the former owners are remitted to their original position and rights as they stood before the sale, and as they would have stood had the taxes been paid when due, or had the sale for the taxes been made directly to such party in default. Such, we think, must be the result upon
We think, therefore, the purchase of the tax-title from Palms by Daniel J. Campau, who stands only in the shoes and in the right of Joseph Campau, operated merely as a' payment, and gave him no additional rights to the land, as against these plaintiffs at least.
The court, therefore, erred, not only in taking the case from the jury, .but in refusing to charge, as requested by the plaintiffs, “that the deed from Palms to Daniel J. Campau inured to the benefit of the plaintiffs, and if they were not otherwise barred from a recovery, the sale of the lot for the paving taxes, and the conveyance made thereon to said Palms and his conveyance to said Daniel J. Campau, are, of themselves, no bar to a recovery.”
Wo have purposely avoided expressing any opinion whether the tax-deed to Palms was prima facie evidence of the regularity of proceedings, as this is not properly involved in the case, and the counsel did not cite or comment upon the particular statutes, etc., upon which the question may depend.
The judgment must be reversed, with costs, and a new trial awarded.