CHAPTER XXXVIII. OF THE TITLE WHICH PASSES TO THE PURCHASER AT A TAX SALE. SUPPOSE the land subject to taxation—that it was duly listed and charged with the tax-that the tax was unpaid—that all conditions precedent and subsequent to the sale have been strictly complied with-that the owner has neglected to redeem and that a deed in due form has been executed and delivered to the purchaser-what kind of title does the grantee of the State acquire? Is it an original, or derivative one? Does it pass merely the title of the person in whose name it was listed, and on account of whose delinquency it was sold and conveyed, or is it to have the sweeping effect of divesting all prior interests in the land, and vesting in the grantee an independent and paramount legal and equitable title in fee? Does it annihilate a contingent estate? Is the dower of the wife and curtesy of the husband gone for ever? Are all covenants running with the land merged in the new title? and are estates in remainder and reversion extinguished? These are questions of great practical importance to land-owners, and of much interest to the profession. [In Parker v. Baxter,2 it was held, under the statutes of Massachusetts, that if land was rightly taxed to a mortgagor who was in possession, lien was thereby created on the entire estate, and a sale * 535 thereof in due *form, would also pass the rights of the 1 [In Hubbell v. Weldon, Hill & Denio, 139, it was held, that after such a sale, the person in possession was to be considered as holding in subordination to the purchaser, and not adversely, so that a deed from the purchaser who had no possession in fact, would not be void, as for a disseisin.] 2 2 Gray (Massachusetts), 185. But subsequently the statutes were some what modified. See statute, 1848, ch. 166; 1849, ch. 213; 1856, ch. 239; General Statutes, ch. 12. prior mortgagee therein. And in New York it has been determined, that a sale, by order of court, in an action to which all persons having vested estates at law or in equity are made parties, or are proceeded against by the publication of notice, as owners unknown, cuts off all estates, contingent and unvested, as well as others, including all possible interests which might, under contingent limitations, vest in persons not yet in being, and transfers to the purchaser a fee-simple absolute.1 But when a statute declares that a tax execution shall bind the property only from the date thereof, it has been held, that a tax execution against a mortgagor does not bind the right and title of a prior mortgagee, but in order to have that effect it must be issued against him under the statute.2] In Atkins v. Hinman,3 Chief Justice Treat said, "The land itself is sold, and not a particular interest in it. If the land was subject to taxation, and the proceedings under the revenue law have been regular, and the owner has failed to redeem within the time limited by the law, then the whole legal and equitable estate is vested in the purchaser.5 A new and perfect title is established. This results from the paramount authority of the State to levy taxes on property within its limits, and coerce the payment by subjecting the property to sale. It is one of the necessary and inherent rights of the sovereign power." It may be proper to remark, that the question did not arise in that case, as to the effect of the sale, but only as to its regularity. [In Arkansas, the statutes authorize the sale of the land itself, and not merely the particular interest or title of the person to whom the tax is assessed. While in Mississippi, it has been held under the statute of 1846, that a sale con 1 Jackson v. Babcock, 16 N. Y. (2 Smith) 246. 2 Doane v. Chittenden, 25 Geo. 103. In Pennsylvania, a sale for taxes assessed after a mortgage has been recorded will not divest its lien. Cadmus v. Jackson, 52 Penn. St. 295. 3 2 Gilm. 449. 4 See Clarke v. Strickland, 2 Curtis, C. C. 439. 5 [And see Dunlap v. Gallatin Co., 15 Ill. 7, that all prior liens and encumbrances are devested.] See also Jarvis v. Peck, 19 Wisc. 74; Cram v. Cotting, 22 Iowa, 411. 6 Biscoe v. Coulter, 18 Ark. 423. * 536 veys only* the title of the party assessed.1 (a) In Ohio, a valid sale and conveyance of a husband's land for taxes, bars the wife's right of dower.2] This question was discussed in Neiswanger v. Gwynne, which was argued on four several occasions before the Supreme Court of Ohio, on the law and equity side. The facts were, that the premises in controversy were situate in Madison County, and constituted a part of the Virginia Military District. They were entered by David Ross in 1810, surveyed in 1816, and patented in November, 1838, to Neiswanger, the assignee of Ross. The land was listed for taxation in the name of Ross, while he was the owner of the equity, and forfeited to the State for the nonpayment of the tax. In 1829, the land was sold for the arrears of tax due upon it, to Lyne Sterling, who subsequently conveyed it, by quitclaim, to Gwynne, and the latter took possession under the tax title. Neiswanger instituted an action of ejectment to recover the possession of the premises. The statute under which the sale took place, declared that the "deed shall convey to the purchaser, &c., a good and valid title to the land, and such deed shall be received in all courts of this State as good evidence of title," &c. The court, upon this statement of facts, gave judgment in favor of Neiswanger. The counsel for the defendant insisted "certainly, the deed of the State, declared to be a good and valid title to the land,' ought to have as much effect as that of an individual with covenants of warranty; and when land has been sold for taxes, and a patent afterwards issues to the delinquent, or his assignee, it ought, on principles of public policy, to enure to the benefit of the purchaser, and estop the defaulter from setting up his naked legal title against a fair and bona fide purchaser under the law." To which Birchard, J., replied: "The first question is, 1 Dunn v. Winston, 31 Miss. (2 George) 135. (a) In New Jersey, under a statute providing that the purchaser of land at a tax sale shall hold "against the owner or owners thereof and all and every person or persons claiming under her, him, or them," &c., it was held that the title of a mortgagee from one who was not the owner at the time of sale but prior thereto, was not affected, and semble, that even a mortgage the person owning at the time of sale would be protected. Hopper v. Malleson's Exor's, 1 N. J. (C. E. Green), 382. 2 Jones v. Devore, 8 Ohio St. 430. whether a purchaser at a tax sale, made under the act of January 9, 1827, admitting the same to be valid, acquires a better or different title than was possessed by the former owner? This question appears to have been settled in * 537 this court by the decision in Stuart v. Parish, where it was held, that the legal title of the patentee was not affected by a sale for taxes before the patent issued. Other authorities may be found to sustain this point, but as we are satisfied with this, it is not deemed necessary to cite them. The plaintiff, then, has the legal title, and must prevail in this action. The defendant has, at best, but an equitable title. If the proceedings in the tax sale were regular, his remedy is a bill in equity. Until the tax sale is brought before us in such manner as makes it material to the determination of the cause, we cannot, with propriety, be called upon to determine its validity.”1 In accordance with this intimation, Gwynne filed a bill in chancery, to compel a conveyance of the legal title, and enjoin the judgment in ejectment. To this bill a demurrer was interposed, which was argued and overruled. Two questions were discussed. 1. Whether a court of equity, acting within its ordinary powers, can compel the legal owner of land to convey the same to a purchaser at a tax sale, the owner, at the time of the sale, having no other than an equitable interest, but having, subsequent to the sale, acquired the legal title? 2. If the court has such power, is the case made in the complainant's bill such as to justify the execution of it? Both of these questions were answered in the affirmative. The train. of reasoning adopted by the court was, that the legal title was in the United States; that Ross had an equity by virtue of his entry and survey; that his equity was subject to taxation; that the tax purchaser acquired the whole interest of Ross; that when the patent issued, the holder of it became the trustee of the person claiming under the tax title; and that a court of equity had the power, and it was its duty, to compel a conveyance to the tax purchaser or his assigns.2 Upon the overruling of the demurrer, leave was given the defendant to answer the bill. An answer was accordingly filed, to which the complainant replied, and evidence was taken to *show *538 2 15 Ohio, 367. 1 13 Ohio, 74. an irregularity in the listing of the land. The statute which declared that no irregularity in the listing should affect the title of the purchaser, has been cited already.1 A decree was rendered for the complainant, the court deciding, 1. That when the land was sold for taxes, the conveyance, in pursuance of the sale, vested in the purchaser and his grantee, the entire title of the original proprietor; 2. That the title of Ross, when the land was sold, was purely equitable; 3. That when his assignee subsequently acquired the legal title from the United States, he became the trustee of the complainant, and was bound to convey to him; and, 4. That evidence of irregularity in the listing was not admissible under the statute. A rehearing was granted, and the cause continued. It was re-argued, at the next term, when the court dismissed the bill, upon the ground that the complainant acquired a legal title by his purchase, though the patent had not been issued at the time. Caldwell, J.: "We are of the opinion that much of the difficulty in this case arises from attempting to make a tax title analogous to an ordinary chain of title. A tax title, from its very nature, has nothing to do with the previous chain of title; does not in any way connect itself with it. It is a breaking up of all previous titles. The party holding such title, in proving it, goes no further than his tax deed; the former title can be of no service to him, nor can it prejudice him. It was well said by counsel, in argument on this point, that a tax sale operated on the property, not the title. In an ordinary case, it matters not how many different interests may be connected with the title, what may be the particular interest of the party in whose name the property may be listed for taxation, it may be a mere equitable right; if the land be regularly sold for taxes, the property, accompanied with a legal title, goes to the purchaser, no matter how many estates, legal or equitable, may be connected with it. And in case the person in whose name it was listed, who had but an equitable title to the land at the time of the tax sale, gets a conveyance from the person *539 holding the legal title, he cannot avail himself of it. The land is gone, and another title has intervened. Just so with a person holding under a purchase from the gov1 Ante, p. 88. * * |