126 P. 316 | Utah | 1912
On the 11th day of April, 1910, appellant commenced this action to quiet the title in himself to an undivided1 one-half interest in the real estate described in the findings. The respondent answered the complaint, and in his answer set up title in himself to the whole of the real estate in question, and prayed for a judgment or decree quieting the title thereto in himself. The appeal is upon the judgment roll without a bill of exceptions. The findings of fact made by the court, which in legal effect, for the purposes of this decision, may be treated as an agreed statement of facts, are as follows:
- “That on the 10th day of February, A. D. 1891, the plaintiff, John McCready, and one Fenno Wakeman were each the owner of an undivided one-half interest in the following described real estate situate in the county of Salt Lake, State of Utah, to wit: The E. % of the S. % of lot No. six (6), block No. thirty-nine (39), plat B, Salt Lake City Survey.
“That on the llth day of February, A. D1. 1891, the property hereinbefore described was, by the officers charged with
“That on tbe 21st of December, A. D. 1897, tbe property hereinbefore described was, by tbe officers charged with said duty, sold to M. 0. Moon for tbe delinquent taxes on said property for the year 1897, and a certificate of such sale issued to tbe said M. O. Moon, wbicb said certificate was duly recorded in tbe office of tbe county recorder of Salt Lake County, Utab, on tbe 21st day of December, A. D. 1897, in a book therein, provided1 by law to be kept for that purpose, to wit, Book B of Tax Sales, page 3, line 9, of tbe records of said county.
“That each of said hereinbefore-described certificates of tax sale were by tbe holders thereof duly assigned in tbe year 1899 to Fenno Wakeman.
“That on or about tbe 6th day of March, A. D. 1901, George H. Wood, tbe duly elected, qualified, and acting auditor of Salt Lake County, Utab, executed and' delivered to tbe said Fenno Wakeman a tax deed to tbe premises hereinbefore described, and to tbe whole thereof, which-said1 deed recited that it is issued under and' by virtue of a certificate of tax sale in wbicb said property was sold1 to Axel Olsen for tbe unpaid taxes for tbe year 1896, and wbicb said deed was filed for record in tbe office of tbe recorder of Salt Lake County, Utab, on tbe 6th day of March, A. D. 1901, and duly recorded in a book therein required by law to be kept for sucb purpose, to wit, Book 5F of Deed's, on page 126 thereof, of tbe records of said county,
“That in tbe years 1896 and 1897 the property hereinbe-fore described was assessed for taxation in tbe name of ‘Fen-no Wakeman et al./ and was not assessed, nor any part there*of, in tbe name of tbe plaintiff, John MfeCready, although the
“That the plaintiff, John McCready, has been engaged in the retail dry goods business at Ogden, Utah, for the past twenty years, but that he has, during all of said time, owned real estate in Salt Lake City and paid taxes thereon; that he ascertained in the year 1897 that the property hereinbefore described was sold for taxes for the year 1896, and also knew that it was sold again in the year 1897; that he knew of the issuing and recording of the tax deed to Fenno Wakeman; that he made no effort to pay the taxes assessed against said land for the year 1896, or for any year since said date; that in the year 1897, and for many years thereafter, there was no right of way appurtenant to said land, which is in the center of a block; and that there is still no right of way to said land, except over other lands now owned by the defendant.
“That neither the said Fenno Wakeman, nor the defendant, N. A. Fredericksen, at any time ever requested or demanded of the plaintiff that he pay his share of the taxes for the year 1896 or 18.97, or any subsequent years.
“That during all of the time since the 6th day of March, 1901, the said described premises have been protected by a substantial inclosure.
“That during the years 1901, 1902, 1903, 1904, 1905, 1906, and 1907 the premises were cultivated by a tenant of the said Fenno Wakeman, who occupied said premises by virtue of an oral agreement, by the terms of which the said tenant agreed to look after the property and endeavor to sell it in return for the use thereof; that during each of said
“That on tbe 15th day of October, 1907, tbe said Fenno Wakeman and Jennie A. Wakeman, bis wife, conveyed said premises, by warranty deed, to> tbe defendant, N. A. Ffed-erictsen. Said deed was died for record in tbe office of tbe county recorder of Salt Lake County, Utab, on tbe 30tb day of October, 1907, and recorded in a book therein required by law to be kept for tbat purpose, to wit, Book 7Q of Deeds, on pagjs 101 thereof, of the records of said county.
“Tbat since tbe 15th day of October, 1907, tbe said defendant, N. A. Fredericksen, has caused said land to be cultivated as a garden, has bad a barn thereon, used by bis tenants, has extended the sewer along tbe side of said property for its full length, and has caused a large number of loads of earth to' be hauled on said land for tbe purpose of raising tbe grade thereof.
“That tbe said defendant and bis grantor have paid taxes on said described premises as follows: 1896, $8.89; 1897, $7.95; 1898, $8..22; 1899, $8.07; 1900, $9.40; 1901, $11; 1902, $10.65; 1903, $10.61; 1904, $10.95; 1905, $11.44; 1906, $11.75; 1907, $13.80; 1908, $13.69; 1909, $14.13; 1910, $16.43. Said payments having been made on or about tbe 1st day of November in each year, and tbe same being all tbe taxes levied or assessed against said premises during said years.
“Tbat since tbe execution and delivery and recording of tbe tax deed described in tbe fifth finding of fact herein tbe said plaintiff has not offered to pay any portion of tbe taxes, costs, and expenses incurred by reason of tbe said tax deed, or taxes levied and assessed against said property since tbe year 1896, until shortly before this action was commenced, and in tbe early part of 1910, when tbe plaintiff called on tbe defendant, N. A. Fredericksen, and offered at tbat time to pay to him, bis share of all taxes assessed against said premises; tbat there has been no revenue derived from tbe said premises since tbe year 1896, except tbe occupancy and use
As conclusions of law, the court,, in substance, found that the tax deed mentioned in the findings was void; that the defendant and his grantors had held the whole of the premises in question by adverse possession for a pieriod of more than seven years next preceding the commencement of this action; that they had paid all the taxes assessed and levied against-said premises during said time; that respondent had acquired the title to said premises by adverse possession of his grantors; that respondent therefore was’entitled to a judgment or decree quieting the title to the whole of said premises in himself, and for costs. A decree was accordingly entered, quieting the title to the whole of said premises in respondent, and appellant has appealed, praying for a reversal of said judgment or decree.
The only errors assigned are that the conclusions of law are not supported by the facts found and are contrary to- law, and that the judgment or decree is contrary to law.
In view of the importance of the principles involved, we have set forth the court’s findings of fact in full. The questions that arise upon the foregoing facts, and which are to be determined, are: (1) Are the conclusions of law as found by the court supported by the facts found; and (2) is the judgment or decree contrary to law ?
From the findings of fact it is conclusively established that the appellant and respondent’s grantor, Nenno Wakeman, in the year Í891, were, -and from thence forward continued to-be, tenants in comnton of the premises described in the findings, each owning an undivided one-half interest therein, and that such relation continued up to- the 15th day of October, 1901, when said Wakeman conveyed the whole premises to respondent, unless Wakeman’s acts in paying taxes and in obtaining a tax deed, under the circumstances stated in said findings, severed that relation at an earlier date. The first question that arises, therefore, is: -What are the mutual rights and obligations of tenants in common with respect to the real estate owned by them as such tenants ? What inter
In Black on Tax Titles (section 28.2), the author states the law upon the subject now under consideration in the following words:
“One of the most familiar applications of the rule under consideration is this: Where land is owned by joint tenants, co-parceners, 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. This rule rests upon very obvious principles, and there is no possible question as to its justice and strict legality. For, in the first place, it is plainly a duty which any and each of the eotenants owes to the state to pay the taxes upon the whole tract when they are so assessed. And, of course, he must not be allowed to reap an advantage from his neglect of this duty. But, in addition to this, there is a strong objection to such a proceeding arising from the mutual relations of the parties. It is well illustrated in the following remarks by the court in Kentucky: ‘As a general rule, one tenant in common, before partition, is not permitted to purchase in a superior outstanding claim for his*395 own exclusive benefit, and much less to use it for the expulsion of his cotenant. Such a purchase is considered in equity as inuring to the benefit of both, and the purchaser is entitled to contribution. This principle arises from the privity subsisting between parties having a common possession of the same land, and a common interest in the safety of the possession of each, and it only inculcates that good faith which seems appropriate to their relative position.’ ”
In section 284 of the same book, the author also states the law to be to the effect that neither of the cotenants can acquire any rights in the premises as against his cotenant, except for contribution, by purchasing a tax certificate from one who has paid the taxes upon the premises owned' by the cotenants. Nor can such cotenant acquire any right, except where the tax sale has ripened into a complete and indefeasible title prior to the time of the purchase by the cotenant. The latter transaction is generally held to be equivalent to purchasing an outstanding title from an independent source. In Freeman on Cotenancy, etc. (section 158), the rule applicable to the facts in this case is stated by the author as follows:
“As a general rule, no contenant will be permitted to assert against bis companion a title acquired by purchase at tax sale for taxes imposed on their common property during their joint ownership. Tax titles affecting undivided interests may arise from a sale which includes the interest of all the owners, or from a sale which includes the interest of but one. Where, as in the former case, the cotenant purchasing at the sale is himself in fault for not mating payment of the amount due on his own moiety/ there is no doubt that his purchase cannot be enforced against his companions, except as a basis for compelling them to reimburse him for their pro ráta of the sum paid to release the common property from a common burden.”
In referring to the question now under consideration, Judge Cooley, in bis work on Taxation (3 Ed.), p. 963, says:
“Some persons, from their relation to the land or to the tax, are precluded from becoming purchasers on grounds which are apparent when their relation to the tax and to the property is shown.”
The author cites many eases in support of the doctrine and! then, at page 966, proceeds as follows:
*396 “The cases to which attention is called in the margin, and many others to which they refer, will show the application of the rule under a great variety of circumstances. It has been applied to cases where the default was only in part that of the purchaser, as where he was tenant in common with others.”
In other words, a tenant in common is one whose relation to the tax and the property is such as ordinarily precludes him from acquiring title as against his eotenant by purchasing at a tax sale.
By reference to the cases cited in support of the foregoing texts, it will be found that all three of the authors are supported by 'the decisions of the courts. In Sorenson v. Davis, 83 Iowa at page 409, 49 N. W. at page 1005, Mr. Justice Given, in speaking for the Supreme Court of Iowa, lays down the rule in the following language:
“It is a well-established principle that a tenant in common cannot acquire title adverse to his cotenants by purchase at tax sale. He will be regarded as holding the title he thus acquires in trust for his cotenants, until the presumption is repelled by their refusal to contribute in payment of his outlays.”
The doctrine laid down by the three distinguished authors and by the Supreme Court of Iowa is, however, not seriously questioned by counsel for respondent; but they insist that in this case the acts of Fenno Wakeman constituted an ouster of his cotenant, the appellant, and hence contend that the statute of limitations as against appellant was set in motion from the time of the ouster.
While it is held im tbe foregoing cases that in case of ouster one eotenant may acquire title by adverse possession as against bis eotenant, yet in every ease referred to above there is some special ground or reason, which is not present in tbe ease at bar, upon which tbe decision is based. In some of tbe foregoing cases, the decisions are based upon the fact that tbe grantee of one of the cotenants bad been in possession under bis deed, claiming title to tbe whole property, for tbe time required' by tbe statute of limitations, and bad thus acquired
“Where one enters avowedly as tenant in common with others, his possession is the possession of those others, so long as the tenancy in common is not openly disavowed. Before adverse possession by one tenant in common against another can begin, the one in possession must, by acts of the most open and notorious character, clearly show to the world, and to all having occasion to observe the condition and occupancy of the property, that his possession is intended to éxclude, and does exclude, the rights of his cotenant. It is not necessary for him to give actual notice of this ouster or disseising of his cotenant to him. He must, in the language of the authorities, ‘bring it home’ to his cotenant. But he may do this by conduct, the implication of which cannot escape the notice of the world about him, or of any one, though not a resident in the neighborhood, who has an interest in the property, and exercises that degree of attention in respect to what is his that the law presumes in every owner.”
While some courts have gone to the extent of bolding that there must be express notice of ouster or actual ouster by one cotenant of another before the statute of limitations is set
Tbe judgment is therefore reversed, and tbe cause remanded to tbe district court, with directions to set aside tbe conclusions of law and judgment or decree in favor of respondent, and to substitute conclusions of law and enter judgment or decree in favor of appellant in accordance with tbe views expressed in this opinion. Appellant to recover costs.