Worthing v. Webster , 45 Me. 270 ( 1858 )

The opinion of the Court was drawn up by

May, J.

In 1807, Salter Soper died seized of the farm situate in Gray, which is described in the demandant’s writ. At his decease he left eight children, or their representatives. Of these children, one named Margaret had then been married to Isaac Oakman. She died Nov. 5, 1807, leaving only two children, the demandant, and a sister who died without issue, about a fortnight after the death of her mother. Isaac Oak-man, the father of the demandant, lived until Nov. 12, 1847. It is, therefore, apparent that the demandant, upon the death of her mother and sister, became seized of that share in the farm which descended from her grandfather, Salter Soper, to her mother, subject only to her father’s life estate therein as tenant by the curtesy. That share was one undivided eighth, and is the same now demanded in this suit. The demandant’s right to recover possession of said share, after the termination of her father’s life estate in 1847, is beyond all question, unless she.is barred thereof by reason of the facts relied upon in defence.

The tenant sets up, as his first ground of defence, a title under a tax deed from Woodbury Storer, as collector of a direct tax levied by the United States in 1815, to one Jonathan ■ Nash, .through whom he claims- by appropriate mesne conveyances. This tax deed is dated Oct. 13, 1818, and was duly acknowledged and recorded on the 14th of November following. It is admitted that said Storer was duly appointed as collector of said tax, but there- is no other evidence in the case that said tax was legally assessed, or that said collector, in, making sale of said farm for the non-payment of said tax, complied with • any of the requirements of the federal statutes authorizing the same, except what arises from the recitals in. the collector’s deed to Nash, and the long continued subsequent possession of the premises by the tenant, and those under whom he claims. It is contended in defence that, from the recitals in said deed, said deed being an ancient one, taken in connection with such subsequent possession, under it, the Court ought to presume a full compliance with the requisitions of the statute, so far as .is necessary to give efficacy to the deed.

In. determining this question, it becomes important to look into the nature of the possession and all the circumstances attending it. Nash, the grantee in the tax deed, does not appear to have been in possession of the premises at any time. He conveyed them to Salter Soper, his son-in-law, one of the children of Salter Soper, deceased, who was also the administrator upon his father’s estate, by a deed of quit-claim bearing even, date with the acknowledgment and registry of Storer’s tax deed to him. The consideration recited in this deed is only $21, and the. case shows that at this time Salter Soper, the grantee, had in his hands, as administrator, several hundred dollars belonging to himself and his co-heirs, which is still unpaid. He appears, also, -to have been in possession of said premises after the death of his father, and to have charged himself, in his account as administrator, settled with the judge of probate in October, 1809, with the sum of $70 for the improvement thereof. The value of the farm appears to have been about §1500, and the direct tax assessed upon it, was only $6,74. The whole farm was sold July 16, 1816, for the sum of §8,09, being the amount of said tax and the incidental expenses of the sale. So far as the case shows, Salter Soper, the administrator and tenant in common with the other heirs, remained in possession of said premises from the death of his father, until Nov. 16, 1848, when he conveyed them to Albert W. Sopor. The character of Salter Soper’s possession may depend very much upon the purpose and effect of the deed from Nash to him.

In view of the foregoing facts, if this deed to Salter Soper was not intended as an extinguishment of the tax title, it is difficult to reconcile the conduct of said Soper, under all the circumstances of the case, with any other theory than that of an attempt, on his part, to practice a gross fraud upon his co-tenants. If, however, he intended to claim title in the farm as against them, and all the preliminary steps necessary to give effect to the tax deed had been taken, we cannot doubt, in view of the authorities cited, that equity would regard and treat the conveyance from Nash to him, as a conveyance in trust for the benefit of all the co-heirs or tenants in common. In consequence, therefore, of such resulting trust, his possession, down to 1843, would be that of one co-tenant holding in trust for the benefit of all the cestue que trusts. Such a holding, for any length of time, would, undoubtedly, have much less tendency to show that all the preliminary steps necessary to make the deed effectual had been taken, than a possession under claim of an absolute title free from such trust. If, upon the other hand, Salter Soper is to be regarded as having been in possession, claiming the whole estate, in no way subservient to the rights of his co-heirs, then the fact that such a possession was continued from the date of Nash’s deed to him, to the inception of this suit, is to have such effect in raising a presumption that the recitals contained in the tax deed are in accordance with the facts stated, as it deserves.

The question then returns to the recitals in the tax deed, and the subsequent possession of the tenant and those under whom he claims, taken in connection with all the other facts in the case, furnish satisfactory evidence of a compliance with the requisitions of the federal statute, and of the performance of such acts on the part of the collector, and all others, as are absolutely essential to authorize and give effect to the deed. This inquiry involves two questions. First, whether these recitals, in view of all the facts, are to be taken as true, and second, if so, whether they are sufficient to make the deed effectual to pass the title.

By the principles of the common law, the recitals in a tax ■deed are not, in themselves, evidence of a compliance with •the requirements of the statute. Blackwell on Tax Titles, '603. In all cases where the statute does not make them evidence, the burden is upon the party claiming title under such deed to show, by other evidence, step by step, a full compliance. Ibid, 94, and cases there cited. On page 97 of the .Same work, it is said to be the business of the grantee “ to collect and preserve all the facts and muniments on which his title depends.” It is also well settled that no lapse of time will afford presumptive evidence of the regularity of a tax sale, when the purchaser, and those claiming under him, have not had possession under the deed, and no such presumption can be indulged where the evidence clearly shows upon its face that the proceedings were irregular, and, yet, it is very clear, in view of the authorities cited upon both sides, that an ancient deed and its recitals, with subsequent possession following the deed, and long continued, are facts competent for the consideration of a jury, and should have their proper weight in determining whether the matters and things recited in such deed, as having been performed, were in fact performed. Such facts are not, however, conclusive evidence of such performance. They are merely evidence to be considered with all the other evidence in the case.

In the case before us, authorized as we are to draw inferences as a jury might, we have no hesitancy in coming to the conclusion that the evidence arising from the age of the deed relied upon in defence, and its recitals, with the subsequent possession which is shown as following the deed, when considered in connection with the fact, that the whole farm was sold for so small a sum; that the purchaser immediately conveyed it to his son-in-law, who was then in possession of the farm, and had been for some years before, and who had abundant funds in his hands, as administrator on his father’s estate, and arising from the income of the premises, with which he might have discharged the tax; and the further fact, that the grantee of Nash was one of the tenants in common of the farm with the other heirs of his father, and nearly related to them by ties of consanguinity, and that the demandant, if not others of the tenants in common, was, until very recently, under legal disability to test the validity of the deed or titles, is insufficient to establish the fact, that the prerequisites recited in the deed, and required by the statute to make the deed effectual, have been performed. The whole evidence fails to satisfy us of that fact. The title, therefore, under that deed, is not established. Our conclusion upon this question renders it unnecessary to consider whether the recitals contained in the deed, if shown to be true, embrace all the particulars which are essential to give efficacy to the deed.

The only other ground of defence is, that the tenant, and those under whom he claims, have so long been in the open, notorious, exclusive and adverse possession of the premises in controversy, that the demandant, by force of our statutes, is barred of her right to recover. This ground cannot be sustained upon the facts before us. There is no evidence of any adverse possession prior to the tax deed in 1818. Up to this time, the possession of Salter Soper was that of one tenant in common for the use and benefit of all. Whether the deed from Nash to him was regarded by him as conveying an indefeasible title, or an estate in trust; or as extinguishing the tax title; or whether he thought the tax title altogether unavailing and void, is, in our judgment, wholly immaterial in its effect- upon this question of a title acquired by disseizin, because, whatever may have been the character of the possession of Salter Soper, and those claiming under him, it does, not seem to have been continued ■ long enough to bring the case within the provisions of the statute cited by the counsel in defence, (R. S., 1851, c. 105, § 15,) so as thereby to cut off by limitation the rights of the demandant. She was born July IT, 1.805, and was married to Jonathan Worthing, Nov. 23, 1823. Her testimony shows that his death occurred in 1853 or 1854. The writ in this case is dated June 19, 1856, before the expiration of forty years from the date Of the tax deed, which was Oct. 13, 1818. During- almost this whole period the demandant was under a legal disability to commence a suit for the recovery of her rights. Her infancy and coverture were not disconnected, and the latter continued until two or three years prior to the date of her writ. The result is, that the tenant must be defaulted, and the demandant is entitled to recover one undivided eighth part of the farm of which her grandfather died seized, and which is demanded in her writ. No claim appears to have been made for rents and profits. Tenant defaulted.

Tenney, C. J., Hathaway, Cutting, G-oodenow, and Davis, J. J., concurred.