25 Wis. 679 | Wis. | 1870
The defendant Matthew Boylan is tenant by the curtesy of the premises in controversy, and the plaintiffs are the heirs-at-law and reversioners entitled to an estate in fee in the land, immediately upon the determination of such life tenancy. Before the death of his late wife, upon which his estate as tenant by the cur-tesy arose, and while he was residing with her upon the premises, the same were several times sold for the non
The complaint alleges, as matter of law, that it was the duty of the defendant to have redeemed the land by payment of the taxes. This may or may not have been so. If the tenant had chosen to let the land go for the taxes, so that valid title and possession would have been acquired by a stranger, thus forfeiting his life estate as well as the inheritance, it is possible that the heirs would have had no ground of complaint or cause of action against him. The taxes having accrued before the life estate arose or tenancy existed, it may be that the tenant was not chargeable, at all events, with the duty of paying them. But be this as it may, there exist other grounds here for holding that he shall take no advantage as against the reversioners of the title he has acquired. The taxes here were a charge upon the land, a lien, in fact, upon the life estate of the tenant as well as the fee of the reversioners ; and where that is the. case, a purchase by the tenant, or title acquired
It being established that the tenant can take no benefit or advantage of the title acquired as against the rever-sioners, ' the next question to be considered is as to the remedy or redress which the latter shall have against him. Can this proceeding in equity be maintained against him ? It being, as Chancellor Keet says, a title which he shall
It is suggested by counsel for the tenant, that he had the right to take the deeds, and has the right to hold them, for the protection of his own estate. Conceding this to be so, he will not lose the protection by the judgment. He may avail himself of the title for that purpose as well after the judgment as before, and, for that matter, if .there be any doubt, the judgment may expressly so provide.
The special relief demanded in the complaint with respect to the unrecorded deed from the defendants Ooo7c and wife, should also be granted, the facts being established as alleged in the complaint. This follows from what has already been said. The tenant has no right to withhold the deed from record to the vexation and annoyance of the reversioners, or so as to disturb their title or right to the estate in remainder. He should be required to put the deed on record, and his title, except the life estate which he has without the deed, should be vested in the remainder-men as above indicated.
As to the other acts complained of against the tenant — that he has neglected and refused to pay the taxes which have been assessed and fallen due upon the premises since the commencement of his life estate ; that the same have been several times sold for the non-payment; and that the plaintiffs, or one of them, has been obliged to redeem from the sales of one year in order to save the inheritance, and will be obliged to do so from the sales of other years unless the tenant is compelled to pay, which he now refuses — it is not, perhaps, very clear that these, separately considered, constitute the proper subjects of .equitable aid or interference. It is very clear, from all the authorities, that suffering the'premises to be sold for taxes accruing during the tenancy or term is an
With respect to the other ground of demurrer alleged, that several causes of action have been improperly united, we do not dwell upon that, as counsel have not. If a good cause of action had been stated in favor of the plaintiff Martin Phelan, as administrator of the estate of Grace Boylan, deceased, he being joined as plaintiff in that capacity as well as heir-at-law or reversioner, there might be force in the objection. But as it is, we make no account of such joinder, but treat it as an action by the plaintiffs as heirs-at-law and reversioners alone.
One further observation is perhaps necessary, in order to correct what seems to be an erroneous impression on the part of counsel for the plaintiffs. He seems to suppose that the commission or suffering of waste is attended by forfeiture of the estate of the tenant, and that the reversioners may enter and hold possession. A part of the relief asked in the complaint is, that the tenant forthwith vacate and surrender the possession of the premises to the plaintiffs. In Maine and Ohio, as will be seen by the cases above referred to, the tenant forfeits his estate. But this is by statute. And in England, by the statute of Gloucester, 6 Edw. I,, c. 5, not only the place wasted was forfeited, but also treble damages.' That statute was held, in Sackett v. Sackett, 8 Pick. 307, to have been adopted as part of the law of Massachusetts. But the statute of this state, which makes full regulations upon the subject, contains no such provision, and consequently there can be no forfeiture.
By the Court. — The order is reversed, and cause remanded for further proceedings according to law.