Docket No. 101 | Mich. | Jul 23, 1906
Lead Opinion
The trial court directed a verdict for the defendants, and plaintiff has appealed. The action was ejectment. Plaintiff’s claim of title rests on a Federal patent to his father and uncle, Hiram and George Olmstead, respectively, and inheritance from the former, who at the time the action was begun was survived by a widow, Martha, and two children, i. e., the plaintiff and his sister. The proof conclusively shows that the land was sold repeatedly for taxes, and deeded by the auditor general, and that such titles were outstanding in various persons at the time that Judson and Wiley, the defendants’ grantors, first had their attention directed to the lands. Judson and Wiley purchased most of these tax titles, taking quitclaim deeds from the respective owners, and the defendants’ subsequent purchase would be a complete answer to plaintiff’s action but for the fact that, before purchasing any of said tax titles, Judson and Wiley took quitclaim deeds from George, Martha, and Katherine Olmstead and the plaintiff. It is shown that the plaintiff was but 12 years old when he executed his deed, and he claims that it did not divest him of title, and that the acceptance by Judson and Wiley of deeds from George, Martha, and Katherine Olmstead made Judson and Wiley tenants in common with the plaintiff, and that therefore the purchase of tax titles by Judson and Wiley inured to plaintiff’s benefit under the alleged rule that a tenant in common cannot obtain title against a co-tenant by purchasing tax titles.
There was no tenancy in common, because the Olmsteads had no interest in the lands at the time they gave their quitclaim deeds to Judson and Wiley, which therefore conveyed nothing, and the acceptance of the quitclaim deeds could not make the parties thereto tenants in common, when neither party had or acquired thereby any interest in the lands. Again, the case is within the rule laid down in the case of Sands v. Davis, 40 Mich. 14" court="Mich." date_filed="1879-01-08" href="https://app.midpage.ai/document/sands-v-davis-7929191?utm_source=webapp" opinion_id="7929191">40 Mich. 14. If, as counsel claims, the quitclaim deed from the Olmsteads was void as to the plaintiff, Judson and Wiley
The judgment is affirmed.
Concurrence Opinion
I concur , in affirming the judgment. At the time the opinion in Dubois v. Campau, 24 Mich. 360" court="Mich." date_filed="1872-04-03" href="https://app.midpage.ai/document/dubois-v-campau-6635513?utm_source=webapp" opinion_id="6635513">24 Mich. 360, was handed down, it was not supposed that this court had before then determined that a tenant in common out of possession could not purchase from a stranger in good faith, and set up against his co-tenants, an outstanding tax title, even if the tax sale was based in part upon his own default, since the point is in that case expressly left undecided. In the case at bar all of the tax titles had accrued and were outstanding at the time when the alleged co-tenancy began. The cases of Butler v. Porter, 13 Mich. 292" court="Mich." date_filed="1865-05-13" href="https://app.midpage.ai/document/butler-v-executors-of-porter-6633386?utm_source=webapp" opinion_id="6633386">13 Mich. 292, Sleight v. Roe, 125 Mich. 588, and Mc-Pheeters v. Wright, 124 Ind. 560" court="Ind." date_filed="1890-05-26" href="https://app.midpage.ai/document/mcpheeters-v-wright-7050533?utm_source=webapp" opinion_id="7050533">124 Ind. 560 (9 L. R. A. 176), cited and relied upon by counsel for appellant, are each of them cases where the tax sales were made during .the period of the co-tenancy, for which reason they are not controlling here. The deed in which, in 1883, plaintiff joined, which he now revokes, was a quitclaim deed, not an assertion of any particular, or of any, title. It did not of itself operate as an estoppel against either the grantor or grantee as to the nature or extent of the title. Sparrow v. Kingman, 1 N.Y. 242" court="NY" date_filed="1848-04-05" href="https://app.midpage.ai/document/sparrow-v--kingman-3601090?utm_source=webapp" opinion_id="3601090">1 N. Y. 242, approved in Sands v. Davis, 40 Mich. 14, 20. Plaintiff’s grantee, after acquiring outstanding titles to some or all of the lands for each of. the years from 1864 to 1881, excepting for the year 1866, conveyed the land