after stating the case, delivered the opinion of the court.
The whole conduct of Gould, as disclosed by his letters, indicated a fraudulent purpose. It might justly be termed larcenous, if larceny could be applied to a fraudulent sale of another’s lands, and the retention of the proceeds. He knew that Jackson was not the owner of the lands which were sold *411 in his name. The jury have found as a fact, that, when be made tbe conveyances, be did not believe'that Jackson bad any title. He was aware, therefore, all the time, that be was defrauding tbe true oiwner, whoever be might be, by tbe use of tbe power of attorney. Tbe jury bave also found that be bad knowledge of facts which informed him that tbe plaintiff claimed tbe lands, and which, if followed in good faith, would bave disclosed tbe plaintiff’s full title; and that be then knew or believed that tbe plaintiff bad tbe title, or a valid claim, to tbe lands. From tbe outset, be was made acquainted with tbe fact that whatever title remained on tbe records in tbe name of Jackson was there by accident or mistake, and that all Jackson asked was that tbe property thus situated might be subjected to tbe payment of bis claim, ¿earning tbe true condition of things, that tbe deed to Mrs. Anthony bad never been, recorded, be concealed the fact from Jackson, advised him to set up a false claim of title, obtained from him, under pretence of aiding him and protecting bis interests, a .power of attorney to sell any lands in tbe State, and then proceeded at once to.dispose of not merely tbe two sections which Jackson bad originally desired to subject to tbe payment of bis claim, but immense tracts Of other lands. After this, be refused to give any account of the sales made, and, with tbe exception of! paying tbe claim of Jackson, be put all tbe proceeds into, bis own pocket, amounting to several thousand dollars. As said by counsel, fraud and guilty knowledge are'written. all through bis letters.
Now, when called to account for bis acts, be sets up as a defence, — /
1st, That Jackson never acquired the title to tbe lands, sold under tbe power, by the deed from Anthony in 1865, inasmuch as be was not aware of tbe execution of that deed at tbe time, and, consequently, there was no formal delivery of it to him; and,
2d, If be did thus acquire the title, tbe plaintiff was not injured by tbe sales, because be had previously purchased tbe •lands at tax sales, and thus obtained a superior title to tbe property.
If these defences could be sustained, they would only show that tbe defendant is not liable in this action, not because be *412 was guiltless of fraud, but because the fraud committed injuriously affected only other parties. His conduct would not then stand in any better light. But the defences are not' tenable.
It is true that Jackson was ignorant of the fact that Anthony had made a deed of the lands to him in 1865, until he was called upon to reconvey them; but, when informed of the fact, he immediately acted upon the assumed validity and operation of the instrument, and executed the desired conveyance. Now, while it is law that a delivery of a deed is-essential to pass an estate, and there can be no delivery without a surrender of the instrument or the right to retain it, such delivery will be presumed, in the absence of direct evidence, from the concurrent acts of the parties recognizing a transfer of the title. The question here is not whether the delivery took place at the date of the deed, but whether it took place at all. The acts of the grantor and grantee — the one in asking a reconveyance and the other in making it — were satisfactory evidence that at that time the delivery had been made, and they justified the finding of the jury that the deed had been accepted by Jackson.
Jackson
v.
Cleveland,
As to the tax sales, they were made in 1867 for unpaid taxes of 1866; and, for want of other purchasers, the lands were bid in by the State. The sales were made after the plaintiff had purchased the lands; but in May, 1868, before the time of redemption had expired, he bought the State bids,- and in February, 1869, received quitclaim deeds from the auditor-general of the State. These deeds were produced by the defendant to show that at the time of his sales in June and July following, under the power of attorney of Jackson, the plaintiff possessed a superior title, which was not affected by those sales, and thus that the fraud which the defendant committed injured only the purchaser who trusted him, and did not injure the plaintiff. The answer to this position is obvious : the plaintiff, by his purchase of the State bids, practically •redeemed the property from the tax sales, and therefore acquired no new or additional title by the tax-deeds. Whatever operation the deeds had under these circumstances, it was only as evidence that the taxes were satisfied, the lien of the State
*413
discharged, and the estate restored from the sale. By the law of Michigan, taxes upon real property constitute a lien upon it, which continues through all its transfers, until the taxes are paid, or the sale of the property for their payment has become absolute. Whoever subsequently purchases the property is presumed to know of the taxes existing at the time, as they are a matter of' public record; and the law informs him that he must see that they are paid, or suffer a possible loss of his estate. Whether in the present case the plaintiff stood in any such relation to his vendor as to make it obligatory upon the latter to pay the taxes previously assessed we are not informed; nor is it material. The State looked only to the property, and did not concern itself as to the relations between the former and present owners. If, therefore, the plaintiff did not wish to see his interest sacrificed, his only course was to pay the taxes before the sale, or to redeem the land from the sale afterwards. By the purchase of the bids before the sale became absolute, he practically effected a redemption. He thus united in himself the ownership of the State’s lien and the title to the lands. This union of conflicting interests operated to merge the lesser interest in the greater, the lien in the title. One cannot have a lien upon his own property, except where equity interposes, and, to prevent a failure of justice, keeps the lien outstanding; and here there was no interference of equity, and no occasion for its interference. The rule of law took effect at once, and the State lien was
eo instante
merged in the plaintiff’s general title. The operation of the purchase was not unlike that which would have followed from the purchase by the plaintiff of a mortgage upon the premises executed by his vendor; the transfer of the mortgage would be equivalent in its effect to a satisfaction of the demand secured, and a release of the security. So, here, the transfer of the bid to the owner of the property sold was in law equivalent to a payment of the taxes and a discharge of the lien. Any subsequent deed in the one case from the mortgagee, or in the other from the State, could have no operation as conveyances of any interest to the grantee. It is certain that the plaintiff, in buying the State bids, and subsequently taking the State deeds, never supposed that he was thereby impairing or destroying his original title. There was
*414
at the time no defect in that title, and there was no adverse interest claimed in the lands; and he was not aware that the conveyance to his grantors had not been recorded.
Smith
v. Lewis,
The court below, therefore, did not err in refusing the instruction asked, that the tax-deeds were prima facie evidence that the title to the lands embraced in them was in the plaintiff, when the defendant, as attorney for Jackson, attempted to convey the lands to others; and that, therefore, as to such lands, the plaintiff was not injured by the conveyances made. Whatever prima facie evidence of such title the deeds might have been by themselves, was overcome by the fact that the grantee was, at the time of the tax sales, the owner of the property, and, as such, had practically redeemed it from the sales. A tax-deed executed after redemption from the sale, or, what is in legal effect the same thing, after the lien of the tax has been transferred to the owner of the property before the sale has become absolute, confers no title.
The objection to the testimony of the witness Heather, in answer to the question whether he could form a judgment of the quantity of timber which had been on certain pine-timber lands from the stumps that remained, is untenable ; for it was not taken in the court below. The question was there objected to, not the answer. The question only inquired as to the witness’s ability to judge from an existing fact what a previous fact might have been, and in itself was unobjectionable. If his answer went beyond the question, it was to that the objection of counsel should have been directed, by a motion to exclude it as not responsive, or otherwise improper, or as incompetent testimony. Judgment affirmed.