Rowlett v. Nash, 38 App. D.C. 598

Rowlett v. Nash

38 App. D.C. 598 | D.C. Cir. | 1912

Mr. Chief Justice Shepard

delivered the opinion of the Court:

Being of the opinion that it was error to direct the verdict for the defendant, we shall confine our discussion to such questions raised by the assignments of error as may arise upon the new trial that must follow.

1. The tax deed conveying the interest of William Mayse, the common source, and the deeds vesting the interests of Shea’s heirs at law in the plaintiff, constituted a prima facie case of title. Sec. 5 of “An Act for the Support of the Government of the of Columbia for the Fiscal Year Ending 30, Eighteen Hundred and Seventy-eight, and for other purposes,” approved March 8, 1877 (19 Stat. at L. 376, chap. 117), provides that a tax deed “shall be admitted and held to be prima facie evidence of a good and perfect title in fee simple to any property bought at any sale herein authorized; and all proceedings prior to said deed shall be presumed to have been regular until the contrary be proved.”

The proceedings for the levy and collection of the tax upon the lot in controversy, culminating in the deed made May 29, *6041897, were governed by said act under tbe following provision of sec. 18: “Ibis act shall remain in force as the tax law of the District of Columbia for each subsequent year after June 30, 1878, until repealed.”

2. Defendant undertook to rebut the prima facie case of title, by proof that the report of listing, sale, etc., was made by the Commissioners of the District, instead of by the collector of taxes, as required by sec. 2 of the act of February 20, 1819, which is sec. 175, D. C. Rev. Stat. This revision and consolidation of tbe statutes relating to tbe District of Columbia was enacted December 1, 1873. Tbe contention is that sec. 175 was not repealed by tbe act of March 3, 1877, but remained in force, and contained a substantial requirement, tbe failure to perform which rendered tbe tax sale and deed void. We do not agree with this contention. Tbe act of 1877 provided a general and comprehensive system of procedure for the listing, advertisement, and sale of property for unpaid taxes, and as such was apparently intended to take the place of the former system. It covers tbe general subject-matter of tbe former tax laws with additions and modifications indicating that it was intended as a substitute therefor; and as such it was observed and followed until substituted, and thereby repealed, by the act of 1898. See United States ex rel. Bride v. Macfarland, 18 App. D. C. 120-125. That this was the intention of Congress was evidenced also by the declaration of the 18th section that tbe act shall remain in force as tbe tax law of the District for each subsequent year until repealed. This repeal was effected in the same manner by the act of 1898, as held in United States ex rel. Bride v. Macfarland, supra.

It was therefore error to admit in evidence the report of the Commissioners for the purpose stated, over the objection of the plaintiff.

3. Upon the assumption that the tax sale may possibly be hereafter shown to be void for failure to comply with some material requirements of tbe act of March 3, 1877, it would, nevertheless, be error to direct the jury to return a verdict for that part of lot 5 embraced in tbe “holding” of Young, tbe posses*605sion of which, was acquired by defendant by purchase from Young. The induction of Young into possession by Shea constituted him the tenant of the latter, in so far as to estop him from denying Shea’s title. Tenancy for such purpose does not necessarily mean a regular lease and the payment of rent. It may be implied, unless negatived by the terms of the contract under which possession was given. Carpenter v. United Slates, 11 Wall. 489-493, 21 L. ed. 680, 681; Wiggins Ferry Co. v. Ohio & M. R. Co. 142 U. S. 396-407, 35 L. ed. 1055-1059, 12 Sup. Ct. Rep. 188. One who occupies the land of another in subordination to that other’s title, and with his assent, becomes his tenant, so far, at least, as to estop him to deny the title. And this estoppel extends to anyone who enters under said tenant by assignment or purchase. Rector v. Gibbon, 111 U. S. 276-284, 28 L. ed. 427-430, 4 Sup. Ct. Rep. 605. Assuming then, but without intending to decide, that defendant entered upon lot 5 under color and in good faith, and ousted plaintiff from all that part of the same embraced in his improvements, he did not acquire Young’s holding thereby. On the contrary, the evidence shows that he purchased Young’s house and induced him to surrender possession for that consideration. His object was to come into possession of Young’s holding in that way, and by doing so he came under the estoppel that bound Young. The indorsement on the application of Young to move a house onto lot 4, square 611, does not of itself contradict the evidence of the agreement between Shea and Young for the occupation of the part of lot 5 and was therefore irrelevant.

4. It seems improbable that the question of defendant’s right to the claim of color of title under the marshal’s deed will arise in another trial. There is no question of limitation in the case. To overcome the prima facie title of plaintiff, the defendant must show the tax sale to be void for failure to comply with the requirements of the law of March 3, 1877. Were it necessary for defendant to show title, the marshal’s deed alone would not be sufficient for that purpose. There must be proof *606of the judgment and execution on which the deed is founded. Remington v. Linthicum, 14 Pet. 84—92, 10 L. ed. 364-368.

It follows that the judgment must be reversed, with costs, and the cause remanded with direction to set aside the verdict and award a new trial. Reversed.