14 A. 462 | N.H. | 1887
The decision in this case in favor of the plaintiff upon a bill in equity for relief against the sale of land for taxes and for a reconveyance by the defendant Pike, the purchaser at the tax sale, made at the December term, 1885 (Perham v. Fibre Co.,
The requirements of the statute relating to the assessment of the tax and the sale of the land not having been, in substance, complied with, the collector's deed gave the defendant no title against the prior owner showing title. Thompson v. Carr,
If, as is urged by the defendant, the owner of the land, whose interest the plaintiff is pursuing as creditor, owed the duty of contributing his just share of the public burden, and the defendant has discharged that duty by paying the tax of which the plaintiff has the benefit, it may be said that the payment of the tax was a voluntary act on the part of the defendant without the owner's request or consent, and imposed no obligation upon him towards the defendant. He did not pay the tax for the purpose of discharging the owner's duty to the government, and conferring upon him a benefit to that extent, nor with any reliance upon any act or omission of the owner which entitled him to reimbursement from him. He paid the tax solely as a consideration for a supposed title, taking the risk of its failure. Without admitting the validity of the defendant's title, or his right to have the purchase-money refunded in case of a failure of the title, the plaintiff offered to pay a larger sum for a reconveyance, and this was refused. The defendant elected to stand upon his title. Having refused the offer of reimbursement, and put the plaintiff to the burden of litigating his title, he cannot, after defeat upon his own ground, resort to a different ground which by election he has abandoned, and claim the benefit of an offer which he has once refused. The ground upon which his title was defeated was the ground upon which he chose to stand, and he cannot after defeat turn around and interpose a claim upon a ground inconsistent with that.
The plaintiff, having succeeded in defeating the defendant's claim of title, cannot be called upon to lose or suffer diminution of the fruits of his contest by a claim for restitution of what the defendant deliberately refused to take, and which, by electing to stand upon his title, he abandoned.
In Reed v. Tyler,
Exceptions overruled.
SMITH and BLODGETT, JJ., did not sit: the others concurred.