30 Me. 529 | Me. | 1849
The opinion of the Court, was drawn up by
— The County Commissioners of the several counties were authorized by the act approved on April 1, 1836, c. 242, to assess unincorporated townships of land for the repair of highways laid out and opened over them. It is admitted by the agreed statement, that township numbered three in the second range was legally assessed for that purpose. That the same was sold by the treasurer of the county of Washington to obtain payment of the amount thus assessed ; and that it was legally conveyed to Jacob Longfellow on September 27, 1837 ; that the demandants then owned one eighth part and Charles E. Qunicy one fourth part of the township. That before the term of three years allowed by law for the redemption thereof had elapsed, Quincy, on May 25, 1840, paid to Longfellow the amount claimed to be due to him on those portions of the township owned by himself and by the demandants, and received a conveyance thereof from Longfellow, which was recorded on the same day. That the demandants, on September 19, 1840, tendered to Longfellow an amount of money sufficient to redeem their eighth part, which he refused to receive, because he had before that time conveyed the whole township to Quincy and to the other-owners. The tenants derived their title to the one eighth part demanded, from Quincy.
The counsel for the demandants contends, that they are entitled to recover in the first place, on the ground that their land was redeemed from the sale by the tender made to Longfellow ; and in the second place, that the payment made by
1. The effect of the tender made to Longfellow will be first considered. It will not be necessary to consider or to decide, whether a tender made to such a purchaser after the land had been sold and conveyed by him in the usual course of business, and not because it had been redeemed by the owner of the whole or of a part of it, would be effectual to redeem it. A state of facts calling for such a decision is not presented in this case. Longfellow does not appear to have sold the land to a stranger to the title for its estimated value, but to have released his title to it to part owners, because they had claimed to redeem it, and had paid to him the whole amount, for which he was entitled to retain it. When such a purchaser has thus conveyed the title acquired by him, that title has been legally extinguished. A tender made to him after that time can have no effect upon the title. It cannot operate to produce a result, which had been accomplished before. The whole interest and title acquired by Longfellow had before been legally extinguished by payment, by those entitled to make it, of the amount required to redeem the land from that sale. Without deciding, whether a conveyance made by him to a stranger to the title, before the time allowed by law for a redemption, had expired, would convey any title or interest so as to affect the rights of the owners to redeem from the purchaser, there can be no doubt, that a conveyance made by the purchaser to a part owner, entitled to redeem all the shares, that he might relieve his own, would be effectual to transfer to such part owner an interest or lien upon the other shares for the reimbursement of his necessary expenditures. The reasons why it should have this effect will be more fully stated hereafter. The tender made to Longfellow must therefore be considered as wholly ineffectual to accomplish the purpose intended.
2. The effect of a payment made by the co-tenant, and of a conveyance of the land to him, remains to be considered.
An owner, who pays the amount required to redeem his own share and the share of a co-tenant, cannot be entitled to recover of that co-tenant the amount equitably chargeable to
The law cannot be justly chargeable with such results, as produced by conformity to its provisions. The principle is well established and is of frequent application in the redemption of mortgages, that one having a legal interest in an estate under incumbrance, may redeem the whole estate when necessary, to enable him to redeem his own share or to relieve his own title from incumbrance, even against the pleasure of a co-tenant or other owner, and may be regarded as the assignee of the incumbrance upon the other shares or interests, and may retain possession of them to secure a reimbursement of the amount equitably chargeable to them. Gibson v. Crehore, 5 Pick. 146; Jenness v. Robinson, 10 N. H. 215; Wilkins v. French, 20 Maine, 111.
A sale made for the payment of taxes is but an incumbrance upon the estate, so long as the right to redeem exists. The purchaser receives and holds the title as security for money paid; and such a title is in principle a mortgage, although it does not exist in a form to be included by our statute provisions respecting mortgages. By the application of this principle to cases of this kind, complete justice may be done to all interested in the land, and without it such a result would fail to be accomplished.
The principle applied in this case will not be applicable, should one tenant in common purchase the whole estate from the purchaser at a sale made for the payment of taxes after the right to redeem had expired. In such case one of the co-tenants could derive no benefit from the purchase made by another co-tenant. Kirkpatrick v. Mathiot, 4 Watts & Sergt. 251.
The demandants will not be entitled to recover without proof, that they have paid or tendered to the holders of the legal title the amount equitably due upon their share.
Demandants nonsuit.