73 N.J. Eq. 697 | N.J. | 1908
This was a bill for partition. The property was conveyed by one Cotheal to Mary Jane Roll and Sarah E. Dey by deed, dated April 16th, 1874, which purported to convey three tracts of land, including the land now in question. The complainants are the successors in title of Mary J. Roll, but it is unnecessary to state in detail the devolution of title to the share claimed by them. Sarah E. Dey’s share was conveyed by the sheriff in 1877 to Ward C. Perrine and Abraham Everett, who subsequently acquired a tax title.
The first difficulty in the case arises out of the following clause in the deed:
“It is agreed by and between the parties to these presents, that this indenture shall not conflict with the title of any part of the aforesaid premises previously sold and conveyed by said Alexander I. Cotheal and James I). Thomas, to any party or parties, and this deed is subject to any such conveyances.”
The defendants contend that the property in question had been conveyed by Cotheal and Thomas in 1835 to Peter G. Taylor, and that therefore no title passed by the deed to Roll and Dey. They also claim a title paramount to the complainant by virtue of a tax deed from the collector of taxes, dated June 4th, 1877, to Ward C. Perrine and Abraham Everett. The interest of Everett under this tax deed was conveyed after his death by commissioners appointed in partition proceedings to Ward O. Perrine, George L. Everett and John R. Everett. The share of George L. Everett subsequently passed by his will to his sons Abraham and William C., two of the defendants. The share of Ward C. Perrine subsequently passed by his will to other defendants.
The proof offered of the alleged conveyance from Cotheal and Thomas to Taylor consisted of copies of books of account of Cotheal and Thomas, as trustees, containing record of sales of lots, part of the tracts in question. It was the same proof that was resorted to in the case of Roll v. Rea, 50 N. J. Law (21
With reference to the tax title, the -vice-chancellor held, upon an examination of the tax deed, that it was void because it failed to comply with the law then in force; but he felt constrained by our decision in Slockbower v. Kanouse, 50 N. J. Eq. (5 Dick.) 481, not to-determine that question, regarding it as a question of pure- law. He, therefore, held the case to enable the defendants to establish their title- under that deed, and required them to take proceedings for that purpose within thirty days. Upon their failure to take such proceedings, he advised a decree that' the premises described in the-bill are'free and clear of any lien' or encumbrance under and by virtue of the tax deed.
' We do: not find 'it - necessary to- determine whether the court of chancery had- the right to impose upon the defendants in a partition suit the burden of establishing a-title adverse to that
The cases are carefully staled by Mr, Justice Holmes, in Hurley v. Hurley, 148 Mass. 444 19 N. E. Rep. 545. The rule has been held applicable where the tenant in common became such after the tax-title was acquired. DuBois v. Campau, 24 Mich. 360. Flinn v. McKinley, 44 Iowa 68, a casé where -one tenant in common had become the assignee of a tax certificate, and afterwards became a tenant -in common before he received the tax deed;. and to cases where the tenant in common had acquired the tax title .from a third person, who had purchased at the tax sale. Lloyd v. Lynch, 28 Pa. St. 419-423.
The extent to which the courts go is well illustrated by Burns v. Byrne, 45 Iowa 285; Busch v. Huston, 75 Ill. 343; Chace v. Durfee (R. I.), 16 R. I. 248; 14 Atl. Rep. 919, where it-was hold that a-purchase by the husband-of a tenant in common would inure to the benefit of all the co-tenants of the wife. The
In the present case the taxes were assessed prior to the acquisition of title by Perrine and Everett under the sheriff’s deed. If the lien of the municipality for the taxes had not then expired, Perrine and Everett could only secure the release of their undivided interest by payment of the whole tax, and in making such payment were only discharging their obligation to the public on account of their land. Upon the principles above stated they could not acquire any title to the land against their co-tenant by their own default. If, however, the lien had then expired, the collector of taxes was without power, and the tax deed conveyed no title.
The right of a tenant in common who discharges a lien upon the common property, is to contribution from his co-tenant, and as security he is entitled to a lien upon his co-tenant’s share of the property. That lien may be en torced in equity by treating the tax deed as valid and subsisting for that purpose; and in Hurley v. Hurley it was held that until the amount had been paid the co-tenant had no right to the possession of any part of the land, in equity or at law; it was accordingly held in that case that the petition for partition was rightly dismissed. In the Hurley Case, however, the tenant who had paid the taxes actually took possession of the property. In the present case the land is unoccupied land, of which neither complainants nor defendants have the actual possession. At common law a tenant in common who had been disseized could not have the writ of partition; and the reason is that given by Co. Liti. 167, in discussing the right of partition as between coparceners: “They no longer hold the estate together.” But, in order to prevent one tenant in common from having a partition, there must be an actual ouster. In the absence of such ouster the ordinary rule prevails that the possession of one tenant in common is the possession of all. Foulke v. Bond, 41 N. J. Law (12 Vr.) 527.
The fact that the statute authorizing the sale of land for taxes as it existed when the tax deed was made (Gen. Stat. p. 8851 pi. 822) authorized the purchaser at the tax sale to hold and enjoy real estate during the term for which he purchased the
The result is that we reach the same conclusion reached by the vice-chancellor, except so far. as he decreed that the premises were free and clear of any lien or any encumbrance, under or by virtue of the tax deed, l'n this respect the decree is erroneous .and must be reversed, and the record remitted to the court of chancery, and a decree entered for partition, which shall provide that the defendants have a lien upon the complainants’ share for the proportionate part of the taxes upon the property in •question paid by the defendants or their predecessors in title, with interest from the date of payment. This will necessitate the taking of further proofs.
For affirmance — The Chancellor, Trenchard, Vroom- — 3.
For reversal — The Chibe-Justice, Garrison, Swayze, Parser, Bergen, Bogert, Green, Gray, Dill — 9.