Powell v. Lantzy
34 A. 450
Pa.
1896
Check Treatment

Opinion by

Mr. Justice Fell,

This is аn appeal from the judgment entered in an action of ejectment brought to recover the coal and minerals in a tract of land in thе possession of the defendants. From the admitted facts it appears that in September, 1883, Irvin conveyed the tract to Flynn. In November, 1883, Flynn convеyed to Jose, excepting and reserving the coal and minerals, and at the same time conveyed the one half part of all the minerals reserved to H. B. and J. F. Powell. In the same year Jose conveyed to John Lantzy, one of the defendants. At the time of the conveyance by Irvin to Flynn the taxes for 1882 and 1883 were unpaid, and in 1884 the land was sold for these taxes and purchased by Lantzy. In 1888 Lantzy conveyed the coal to the Blubaker Cоal Company, the other defendant. In 1894 the plaintiff purchased of Flynn the remaining half interest in the coal, and brought this action of ejectment. Thе land was unseated, and the legal title to the entire property was in Irvin at the time the taxes for 1882 and 1883 were assessed.

The case presеnted is that of a sale of unseated lands for taxes which were assessed before the severance of the title to the surface from thаt to the minerals, and a purchase of the whole by the owner of the surface; and the question is whether the title so acquired is good as against the owner of the minerals. The regularity of the proceedings which resulted in the sale is not questioned, and the validity of the title depends upon thе question whether the defendant Lantzy was forbidden by any rule of legal policy to acquire a title at a sale for taxes charged in part аgainst his own land, and whether the title so acquired, if otherwise good, is affected by any equity growing out of the relation which the owner of the surfacе and the owner of the minerals bore to each other.

The rule that one cannot, by a purchase ‍‌‌‌​​‌‌‌‌​‌‌‌‌​​​‌‌‌​‌‌​​‌​​‌​‌​‌‌​​‌‌​‌​​​‌‌​​‌‍at a tax sale caused. *548by his failurе to pay taxes which he owed the state or which he was otherwise legally or morally bound to pay, acquire a better title or a title adverse to that of other parties in interest, rests upon the principle that one cannot profit by Iris own wrong and build up or acquire a title founded upon his own neglect of duty. The rule has been recognized in this state in Chambers v. Wilson, 2 Watts, 495; Coxe v. Wolcott, 27 Pa. 154, and Reinboth v. Zerbe Run Co., 29 Pa. 139, and a multitude of cases in other states, most of which will be found cited in Black on Tax Titles, sec. 273, note.

The purchase operates as a payment only: Cooley on Taxation, p. 501, second editiоn. The rule however ‍‌‌‌​​‌‌‌‌​‌‌‌‌​​​‌‌‌​‌‌​​‌​​‌​‌​‌‌​​‌‌​‌​​​‌‌​​‌‍should be restricted to cases where it was the duty of the purchaser to pay the tax: Oswald v. Wolf, 129 Ill. 200; Lybrand v. Haney, 31 Wis. 230; Sands v. Davis, 40 Mich. 14; Moss v. Shear, 25 Cal. 38. In the opinion in Blackwood v. Van Vleit, 30 Mich. 118, Judge Cooley, criticising the decision in Lacey v. Davis, 4 Mich. 140, in which it was held that a persоn entering into possession of land under a claim of title while a tax which was a lien thereon was unpaid could not acquire a title by purchаse at a subsequent sale for the tax, says that in the cases relied on in Lacey v. Davis, the party who was precluded from acquiring a title at a tax sale was either in possession of the land when the tax was assessed and upon that ground was chargeable with its payment or by contraсt or otherwise it had become his duty to other parties concerned to make payment, and “ To preclude any person from making аnd relying on a purchase of land at a tax sale there must be something in the circumstances of the case which imposes on him a duty to the state to pay the tax, or something which renders it inequitable as between him and the holder of the existing title that he should make the purchase.” In speaking of taxes on unseated lands which were not a charge against the owner it is said in Coxe v. Gibson, 27 Pa. 160, that there was nothing in reason or law to prеvent the holder of a defective title from purchasing a better one at a tax sale. The taxes under which the sale was made in this case were on unseated lands, and there was no personal responsibility on the owner therefor; the land alone was liable: Hunter v. Cockran, 3 Pa. 105; McCormack v. Russell, 25 Pa. 185; Logan v. Washington Co., 29 Pa. 373.

*549Was there a community of interest which gave rise to a duty, or anything in the relation of the parties which made the purchase by Lantzy inequitable ? The rulе which applies to a trustee or to one occupying a fiduciary relation is stated in the notes to Keech v. Sanford, 1 Leading Cases in Equity, p. 62, 4th Am. ed., to be this: “ Whenever one person is placed in such relar tions to another, by the act or consent of that other or by the act оf a third person or of the ‍‌‌‌​​‌‌‌‌​‌‌‌‌​​​‌‌‌​‌‌​​‌​​‌​‌​‌‌​​‌‌​‌​​​‌‌​​‌‍law, that he becomes interested for him or interested with him in any subject of property or business, he is prohibited from acquiring rights in that subject antagonistic to the person with whose interests he has become associated.” And the rule is said to apply as far as the рrinciple and morality and policy upon which it is founded extend. In this state it has been enforced against joint tenants and tenants in common in a numbеr of cases, among them Weaver v. Wible, 25 Pa. 270; Lloyd v. Lynch, 28 Pa. 419; Gibson v. Winslow, 46 Pa. 380, and Maul v. Rider, 59 Pa. 167, where there had been the purchase of an outstanding title, or of the interest of one of the parties by the other at a sheriff’s sale. But the owner of mineral rights holding by virtue of a reservation in a deed is neither a tenant in common nor a joint tenant with the owner of the surface. Each has a separate estate: Neill v. Lacy, 110 Pa. 294; see also Plummer v. Hillside Coal & Iron Co., 160 Pa. 483, and Algonquin Coal Co. v. Northern Coal & Iron Co., 162 Pa. 114. After the severance of the surface from the minеrals by a conveyance they form separate estates : Caldwell v. Fulton, 31 Pa. 475; Caldwell v. Copeland, 37 Pa. 427; Penn. Salt Co. v. Neel, 54 Pa. 9. And each is separately the subject of ‍‌‌‌​​‌‌‌‌​‌‌‌‌​​​‌‌‌​‌‌​​‌​​‌​‌​‌‌​​‌‌​‌​​​‌‌​​‌‍taxation: Logan v. Wаshington Co., 29 Pa. 373; Sanderson v. Scranton, 105 Pa. 469; Petrikin v. Myton, 3 Penny. 216.

When in 1884 the sale for taxes took place the estates were distinct, and the division was as complete as if it had been made by lines on the surface. They were separately the subjects of possession, enjoyment, incumbrance and taxation. There was no community оf interest between the owners. The whole was subject to a claim for taxes which existed before they acquired title, and which neither was under any obligation to the state to pay. If either had paid it he could .not have recovered of the other his proportionate share: Neill v. Lacy, supra. And *550no right to contribution could be enforced as in the case of a mortgage, and there was no means by which the tax could be apportioned. Lantzy was in a position in which he was obliged to pay a claim which he did not personally owe, and which was in part а charge upon the land of another from whom he could not require repayment, or to buy or lose his title. A vendee under articles who buys at а sheriff’s sale to save his title is not a trustee for the vendor: Bispham’s Equity, sec. 93; Thompson v. Adams, 55 Pa. 484, although the vendor may be permitted ‍‌‌‌​​‌‌‌‌​‌‌‌‌​​​‌‌‌​‌‌​​‌​​‌​‌​‌‌​​‌‌​‌​​​‌‌​​‌‍to recover under the contract.

Any moral obligation to agree and jointly pay the tax, each contributing his just share, rested equally upon the owners of the different parts, but there was no legal duty on either to do this. It was their separate, not their joint, interests which were in peril. They were not interested fоr or with each other, and no relation of confidence existed between them which gave rise to a duty which equity will enforce through the medium of a trust.

The learned judge of the common pleas was right in entering judgment for the defendant.

The assignments of error are overruled and the judgment is affirmed.