Willard v. Ames

30 N.E. 210, 130 Ind. 351, 1892 Ind. LEXIS 348

• Court: Indiana Supreme Court
• Decided: February 20, 1892
• Docket: No. 15,327
• Status: Published

Opinions

Mcller, J.

This was an action brought by the appellees against the appellants, to quiet the title to a tract of real estate.

The complaint was in two paragraphs, the first being in the ordinary form, alleging that the plaintiffs were the owners of the land in fee simple, and the defendants claimed an interest therein adverse to the plaintiffs, which claim was without right, and was a cloud upon the plaintiffs’ title.

The second paragraph, as amended, averred that in 1872 Kate Ames was the • owner of the property, and that there was then pending a certain slander suit, in which Joseph Hendricks was plaintiff and Oliver Ames defendant; that said Kate Ames and the plaintiff in the slander suit entered into an agreement in writing, to the effect that if Hendricks would dismiss the slander suit against said Oliver he, Hendricks, should have the premises described in the complaint free of rent until the youngest of the plaintiffs should become of age, 'provided Hendricks would pay the taxes on the property and keep the same in repair; that, in pursuance of the agreement, Hendricks took possession of the property; that Kate Ames died in the year 1877, and the plaintiffs are her heirs at law, and are now over the age of twenty-one years; that said Joseph Hendricks violated said agreement by allowing the property to become delinquent for taxes, and permitting the same to be sold therefor ; that Rebecca Hendricks, who was the wife of said Joseph, became the purchaser of the property at tax sale, she at the time having full knowledge of the written agreement; that the plaintiffs were without knowledge, until .recently, that the property had been sold for taxes, or that it had become delinquent; that, since the sale of the lot to Rebecca Hendricks by the auditor, she has sold and conveyed the same to the defendants, who had full knowledge of the facts herein stated; that plaintiffs can not set out a copy of the written agreement for the reason that the original is in the hands of the defendants’ counsel.

The prayer is that the conveyance from Rebecca Hendricks to the defendants be declared null and void, and that the title of the plaintiff be quieted.

A demurrer was overruled to this paragraph of complaint, and this ruling is assigned as error here.

The paragraph of complaint under consideration proceeds upon the assumption that the tax sale to Rebecca Hendricks was ineffectual to convey title, because she was the wife of Joseph Hendricks, who was in possession of the land at and prior to the tax sale, under an agreement to pay the current taxes, and that, having acquired no tide under that sale, she could convey none to the appellant. ,

It is well settled that one in possession of land, under covenant to pay taxes, can not permit the land to be sold, and acquire title against the rightful owner by becoming the purchaser at a tax sale. Blackwell Tax Titles, section 579; Black Tax Titles, section 145; Busch v. Huston, 75 Ill. 343.

This doctrine has been extended to include agents and attorneys, tenants in common, tenants for life, mortgagors, and other lien-holders.

In Bernal v. Lynch, 36 Cal. 135, it was held that the purchase of property at a sale for taxes, by the agent of one who was in possession of land, either by himself or his tenants, did not pass or otherwise affect the title to the land.

In Burns v. Byrne, 45 Iowa, 285, it was held that a husband who was in possession of property with his wife, and presumably enjoying fhe profits of the land, could not neglect to pay the taxes and purchase the property at a tax sale so as to acquire a valid title, either against her or one who was a tenant in common with her.

In Laton v. Balcom, 64 N. H. 92, it was held that a husband could not become the purchaser of the separate real estate of the wife by a clandestine payment of taxes. The opinion recognizes the separate property rights of the husband and wife, but holds that, owing to the confidential relations existing between them, it would be inequitable, shocking to the moral senses, and a palpable violation of the marital contract to permit either party to thus deal with the property of the other.

In Carter v. Bustamente, 59 Miss. 559, the court held that the wife of a grantor in a trust deed could acquire a tax title to the incumbered land, and defend against a purchaser at a sale by the trustee.