Duel EE, O. J.
This is a suit in equity to vacate a tax title wbicb the defendant claims to have acquired in a lot of land in the city of Providence. The case set forth in the bill, which is demurred to, is as follows, to wit: The land formerly belonged to one Solomon Arnold, who died in 1873, leaving a will by which he devised it for'life to his widow, Phoebe Arnold, and after her in fee simple in remainder to the complainant and one Olin S. Aldrich. Phoebe Arnold, after the death of Solomon, had used and enjoyed the land until her death, March 10,1884. Olin S. Aldrich mortgaged his interest prior to 1878, to the amount of $2,100, to the defendant, by five different mortgages, which were all duly recorded. After the death of Solomon Arnold the annual taxes on the lot were assessed to “ Solomon Arnold, Phoebe Arnold, executrix,” and previously to 1880 had been paid by her. In 1880 a sewer tax and the usual annual tax were assessed on the lot, and were allowed to remain unpaid. On the last day of March, 1881, the. collector of taxes, on account of the non-payment of the sewer tax, after advertisement and notices to Phoebe Arnold, Olin S. Aldrich, and David Weaver, the complainant, sold at public auction “ all the right, title, and interest of the said Phoebe Arnold, Olin S. Aldrich, and David Weaver in and to an undivided seven eighths part ” of said lot to the defendant for $195.21, being the amount of sewer tax with interest and expenses, and afterwards, April 5, 1881, gave the defendant a deed purporting to convey the estate sold to him in fee simple. And on June 16, 1881, the collector of taxes, on account of the non-payment of the annual tax, after advertisement and notices, sold at public auction “ all the right, title, and interest of the said Phoebe Arnold, David Weaver, and Olin S. Aldrich in and to
tbree undivided eighths part ” of said lot to the defendant for $97.67, being the amount of the tax with interest and expenses,' and afterwards, June 18,1881, gave the defendant a deed purporting to convey the estate sold to him in fee simple. At the time of these sales the complainant was living, in sickness and extreme poverty, in Windham, Connecticut, having removed from the city of Providence, where he had previously lived, in 1880, and he received no notice of the sale, though it is not alleged that notices were not mailed to him as required by the statute. The defendant is now in possession of the land, claiming it under the tax titles, and denying that the complainant has any right therein, though the complainant has offered to reimburse him for the sums paid by him for taxes, as aforesaid, or for his equitable portion thereof, and to pay any other legal charges on the estate incurred by him.
The first ground on which the complainant asks relief is that the sales were illegal and void. The statute in regard to the assessment of the usual annual taxes provides, “ Taxes on real estate shall be assessed to the owners.” . . . “ Estates in possession of a tenant for life may be taxed to the tenant for life, who, for the purpose of taxation, shall be deemed the owner.” Gen. Stat. R. I. cap. 39, §§ 4,
6;
Pub. Stat. R.-1. cap. 42, §§ 4, 6. The statute in regard to the collection of such taxes by sale, pro-' vides, “ In case of a life estate, the interest of the tenants for life shall first be liable for the taxes.” Gen. Stat. R. I. cap. 41, § 8 ; Pub. Stat. R. I. cap. 44, § 8. The statute authorizing assessments for sewers in the city of Providence,
provides that the assessments “ shall be collected as the ordinary taxes of the city are collected.” The complainant contends that, in pursuance of these provisions, the interest of the life tenant ought to have been first sold for the satisfaction of the taxes, the interest of the remainder men being liable only jn case of a deficiency.”
We think there can be no question but that the complainant’s claim is correct in regard to the ordinary taxes. The provisions recited clearly show that it is the intention of the General As
sembly that the life tenant, who enjoys the use or income of the land, shall pay the taxes on it during the continuance of his estate, and that, if he neglects to pay them, his life estate shalí be sold for their payment before any resort is had to tbe reversion or remainder. The provision in regard to the sale is not directory merely, but imperative, being manifestly intended for the benefit of tbe reversioners or remainder men, and therefore, if it be disregarded, the reversioners or remainder men have a right to insist that as to them the sale is illegal and void. It is not so clear, however, in regard to the sewer tax, that the life estate must first be sold; for there is no provision that sewer taxes shall be assessed to tbe life tenants, the direction being tbat the assessments shall be on the estates themselves at tbe rate of sixty cents for each front foot, and one cent for each square foot, extending back not exceeding one hundred and fifty feet. It may be argued tbat, inasmuch as tbe assessment is for a permanent benefit, it cannot have been intended tbat it should fall primarily on the life tenant. We do not find it necessary, however, to decide this point; for if tbe life estate is not to be sold first, then the sale is to be according to the general provision, which we tbink was not duly observed in the case at bar. The general provision is that, “ In all cases when any parcel of real estate is liable for payment of taxes, so much thereof as is necessary to pay the tax, interest, cost, and expenses shall be sold by tbe collector,” etc., in tbe manner there prescribed. Gen. Stat. R. I. cap. 41, § 10; Pub. Stat. R. I. cap. 44, § 10. It will be observed that what -is authorized to be sold is so much of any parcel of real estate, liable for payment of taxes, as is necessary to pay tbe taxes, etc. Under this authority the collector might, if he had given notice to the defendant as mortgagee, as provided by § 12,
have sold so much of tbe entire estate, including tbe mortgagee’s interest, as was necessary to pay tbe tax and assessment.
If he had so sold, the burden would have fallen proportionately on all interests, and the sale, without doubt, would have been valid. He did not so sell, but advertised to sell only the right, title, and interest of Phoebe Arnold, Olin S. Aldrich, and the complainant, and sold at the two sales their entire right, title, and interest only, the mortgagee’s interest remaining intact. Now we have seen that the mortgages, which were duly recorded, covered only the undivided moiety in remainder of Olin S. Aldrich. Manifestly, therefore, if this moiety was no more than sufficient to pay the mortgages, the effect of the sale, if sustained, was to throw the burden of the entire tax upon the interests of Phoebe Arnold and the complainant. And if this moiety was more than sufficient, nevertheless the effect was to charge the other interests disproportionately, and
pro tanto
to exonerate said moiety of a part, at least, of its proper share of the burden. In other words, the effect was to sell one man’s estate to pay more or less of another man’s taxes. We do not think the statute authorizes this, or that it would be constitutional if it did authorize it. The statute in § 10, as we construe it, authorizes sales for taxes subject to two limitations, namely:
first,
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Duel EE, O. J.
This is a suit in equity to vacate a tax title wbicb the defendant claims to have acquired in a lot of land in the city of Providence. The case set forth in the bill, which is demurred to, is as follows, to wit: The land formerly belonged to one Solomon Arnold, who died in 1873, leaving a will by which he devised it for'life to his widow, Phoebe Arnold, and after her in fee simple in remainder to the complainant and one Olin S. Aldrich. Phoebe Arnold, after the death of Solomon, had used and enjoyed the land until her death, March 10,1884. Olin S. Aldrich mortgaged his interest prior to 1878, to the amount of $2,100, to the defendant, by five different mortgages, which were all duly recorded. After the death of Solomon Arnold the annual taxes on the lot were assessed to “ Solomon Arnold, Phoebe Arnold, executrix,” and previously to 1880 had been paid by her. In 1880 a sewer tax and the usual annual tax were assessed on the lot, and were allowed to remain unpaid. On the last day of March, 1881, the. collector of taxes, on account of the non-payment of the sewer tax, after advertisement and notices to Phoebe Arnold, Olin S. Aldrich, and David Weaver, the complainant, sold at public auction “ all the right, title, and interest of the said Phoebe Arnold, Olin S. Aldrich, and David Weaver in and to an undivided seven eighths part ” of said lot to the defendant for $195.21, being the amount of sewer tax with interest and expenses, and afterwards, April 5, 1881, gave the defendant a deed purporting to convey the estate sold to him in fee simple. And on June 16, 1881, the collector of taxes, on account of the non-payment of the annual tax, after advertisement and notices, sold at public auction “ all the right, title, and interest of the said Phoebe Arnold, David Weaver, and Olin S. Aldrich in and to
tbree undivided eighths part ” of said lot to the defendant for $97.67, being the amount of the tax with interest and expenses,' and afterwards, June 18,1881, gave the defendant a deed purporting to convey the estate sold to him in fee simple. At the time of these sales the complainant was living, in sickness and extreme poverty, in Windham, Connecticut, having removed from the city of Providence, where he had previously lived, in 1880, and he received no notice of the sale, though it is not alleged that notices were not mailed to him as required by the statute. The defendant is now in possession of the land, claiming it under the tax titles, and denying that the complainant has any right therein, though the complainant has offered to reimburse him for the sums paid by him for taxes, as aforesaid, or for his equitable portion thereof, and to pay any other legal charges on the estate incurred by him.
The first ground on which the complainant asks relief is that the sales were illegal and void. The statute in regard to the assessment of the usual annual taxes provides, “ Taxes on real estate shall be assessed to the owners.” . . . “ Estates in possession of a tenant for life may be taxed to the tenant for life, who, for the purpose of taxation, shall be deemed the owner.” Gen. Stat. R. I. cap. 39, §§ 4,
6;
Pub. Stat. R.-1. cap. 42, §§ 4, 6. The statute in regard to the collection of such taxes by sale, pro-' vides, “ In case of a life estate, the interest of the tenants for life shall first be liable for the taxes.” Gen. Stat. R. I. cap. 41, § 8 ; Pub. Stat. R. I. cap. 44, § 8. The statute authorizing assessments for sewers in the city of Providence,
provides that the assessments “ shall be collected as the ordinary taxes of the city are collected.” The complainant contends that, in pursuance of these provisions, the interest of the life tenant ought to have been first sold for the satisfaction of the taxes, the interest of the remainder men being liable only jn case of a deficiency.”
We think there can be no question but that the complainant’s claim is correct in regard to the ordinary taxes. The provisions recited clearly show that it is the intention of the General As
sembly that the life tenant, who enjoys the use or income of the land, shall pay the taxes on it during the continuance of his estate, and that, if he neglects to pay them, his life estate shalí be sold for their payment before any resort is had to tbe reversion or remainder. The provision in regard to the sale is not directory merely, but imperative, being manifestly intended for the benefit of tbe reversioners or remainder men, and therefore, if it be disregarded, the reversioners or remainder men have a right to insist that as to them the sale is illegal and void. It is not so clear, however, in regard to the sewer tax, that the life estate must first be sold; for there is no provision that sewer taxes shall be assessed to tbe life tenants, the direction being tbat the assessments shall be on the estates themselves at tbe rate of sixty cents for each front foot, and one cent for each square foot, extending back not exceeding one hundred and fifty feet. It may be argued tbat, inasmuch as tbe assessment is for a permanent benefit, it cannot have been intended tbat it should fall primarily on the life tenant. We do not find it necessary, however, to decide this point; for if tbe life estate is not to be sold first, then the sale is to be according to the general provision, which we tbink was not duly observed in the case at bar. The general provision is that, “ In all cases when any parcel of real estate is liable for payment of taxes, so much thereof as is necessary to pay the tax, interest, cost, and expenses shall be sold by tbe collector,” etc., in tbe manner there prescribed. Gen. Stat. R. I. cap. 41, § 10; Pub. Stat. R. I. cap. 44, § 10. It will be observed that what -is authorized to be sold is so much of any parcel of real estate, liable for payment of taxes, as is necessary to pay tbe taxes, etc. Under this authority the collector might, if he had given notice to the defendant as mortgagee, as provided by § 12,
have sold so much of tbe entire estate, including tbe mortgagee’s interest, as was necessary to pay tbe tax and assessment.
If he had so sold, the burden would have fallen proportionately on all interests, and the sale, without doubt, would have been valid. He did not so sell, but advertised to sell only the right, title, and interest of Phoebe Arnold, Olin S. Aldrich, and the complainant, and sold at the two sales their entire right, title, and interest only, the mortgagee’s interest remaining intact. Now we have seen that the mortgages, which were duly recorded, covered only the undivided moiety in remainder of Olin S. Aldrich. Manifestly, therefore, if this moiety was no more than sufficient to pay the mortgages, the effect of the sale, if sustained, was to throw the burden of the entire tax upon the interests of Phoebe Arnold and the complainant. And if this moiety was more than sufficient, nevertheless the effect was to charge the other interests disproportionately, and
pro tanto
to exonerate said moiety of a part, at least, of its proper share of the burden. In other words, the effect was to sell one man’s estate to pay more or less of another man’s taxes. We do not think the statute authorizes this, or that it would be constitutional if it did authorize it. The statute in § 10, as we construe it, authorizes sales for taxes subject to two limitations, namely:
first,
that only the estate which is liable for the taxes shall be sold ; and
second,
that only so much thereof shall be sold as is necessary to pay the taxes for which it is liable. We think, therefore, the collector exceeded his authority when he adopted a mode of sale by which, in consequence of its exemption of the mortgagee’s interest, the complainant’s estate' was sold for more than its own taxes. The injury, to the complainant is patent. ■ It is impossible to say that, if the mortgagee’s interest had been included, it would have been necessary to sell his entire estate. Indeed, it is scarcely conceivable that in such a sale such a result would have occurred, if there had been other bidders than the defendant, without collusion. Our conclusion is that the sales, and consequently the conveyances under the sales, were, as against the complainant, illegal and void.
The complainant contends that, notwithstanding the invalidity of the sales, the conveyances under the sales create a cloud upon the estate which he is entitled to have removed. The defendant, on the other hand, contends that, if the sales and conveyances were void, the complainant has an adequate remedy at law, and
cannot maintain Ms suit. We think ¡the defendant is right. ^We think it is well settled that a court of equity will not entertain a suit for the removal of a cloud in favor of a party out of possession claiming under a legal title against a party in possession under the deed or other written or record title which is supposed to constitute the cloud. In such a case there is no necessity for the exercise of the equitable jurisdiction, as the validity of the disputed title can be determined at law-j
Apperson & Co.
v.
Ford et al.
23 Ark. 746, 756, and cases there cited;
Orton
v. Smith, 18 How. U. S. 263;
Herrington
v. Williams, 31 Tex. 448;
Clark et al.
v.
Covenant Mat. Life Ins. Co.
52 Mo. 272;
Gage
v. Schmidt, 104 Ill. 106;
Gould
v. Sternburg, 105 Ill. 488;
Polk
v. Pendleton, 31 Md. 118, 124. The defendant here is in possession, keeping the complainant out, and there is therefore nothing to prevent the complainant from vindicating his title at law.
Wilson S? Jenckes,
for complainant.
Benjamin N.
Lapham, for respondent.
In this view it is unnecessary to consider whether the complainant would still have a right to redeem the estate if the sales had been valid; for very clearly, if the estate did not pass to the defendant, the complainant cannot redeem it from him. The bill will, therefore, be dismissed with costs.