King v. Harrington

Ejectment: Compensation to defendant for improvements: Statutory title and mesne profits: Setoff. The statute authorizing a defendant in ejectment to claim compensation in certain specified cases, for the value of improvements made hy him, confines the privilege to cases where the possession has heen held, and the improvements made by virtue of the specific titles mentioned in the statute — £ Comp. Laws, %.kf08. It excludes the cases where the defendant claims title in any other way. Where, therefore, a defendant entered into possession of premises and claimed title thereto, hy virtue of several tax titles, and a sheriff’s deed under execution sale, and made improvements, and continued in possession during six years, it was held that he did not come within the provisions of the statute. Held further, That though not entitled to compensation for improvements under the statute, yet he might still, hv way of set off, obtain compensation to some extent for improvements if the plaintiff ¿should proceed for the recovery of mesne profits. — $ Comp. L. § A,£02.

Error to St. Clair Circuit. This was an action of ejectment. The defendant having claimed compensation for improvements under the statute —2 Comp. A. § § 4P93 to 6 — sought to defeat plaintiff’s title by proving title in himself; first, by deed made on a sale under execution; and, second, under several deeds from the Auditor General, for delinquent taxes. Judgment for possession was rendered in favor of the plaintiff, and a judgment for compensation for improvements in favor of the defendant. In this case, the plaintiff is the owner under a patent from the United States. The defendant is in possession claiming adverse title. ^ The plaintiff’s title is undisputed; but defendant claims that he has such a title, and has had such possession as entitles him to compensation for improvements. The defendant holding and claiming under the sheriff’s deed, as well as the tax deed, cannot claim that he has been in actual possession oi tbe premises for six successive years before the commencement of the suit, claiming title by virtue of a sale made by the Auditor General, for the non-payment of taxes, and therefore is not entitled to compensation for improvements under section 4603 of the compiled laws. To entitle him to such compensation, he should have taken possession under, and relied only on, his tax title. He stands in the same position as if he had no tax title, and claimed only under sheriff’s deed; This statute is in contravention of the common law, and to entitle, a party to its benefits, he must be strictly within the statute. However much equity might abate from the damages in an action for the mesne profits, no decision goes to the extent of giving improvements against, or as contingent to, a recovery of possession. Improvements might be set off or recouped in the action for waste or mesne profits, but not set up to prevent or hinder the original recovery.— 1 Kent. Com. 884 J 5 Johns. 272 j 1 A. K. Marshall, 444 S 2 Johns. Gas. 281; 1 Johns. Gh. 887; 8 Wheat. 81 and 82. According to the strict rules of the common law, the owner recovers his land in ejectment, without being subjected to the condition of paying for the improvements which may have been made upon the land by an adverse possessor. — Blackwell on Tax Titles, 587 ; 4 Mete. (Ky.) 828. The action is ejectment, and the material facts are as follows: Plaintiff below claims under a patent issued to him May 22d, 1843. One Atwater attached the lands in question in a suit against plaintiff below; recovered judgment November 9th, 1849, under which said lands were sold by the sheriff and deeded May 20th., 1851, to Minnie and Ashley, who, March 22d, 1852, conveyed to the defendant. This attachment proceeding proved to be wholly void for want of jurisdiction. The land was sold for taxes, for 1847, 1849 and 1850, and the Auditor General, by three deeds, dated respectively November 20th, 1850, October 27th, 1852, and November 20th, 1854, conveyed said lands to defendants below. In the fall of 1852 said defendant entered into possession of said lands. On March 24th, 1854, said defendant being in possession, filed his bill in chancery against said plaintiff, and another “to avoid an alleged fraud in attempting to establish an unauthorized redemption of the attachment title.” In this proceeding a decree was rendered according to the object of the bill of complaint. In the present action of ejectment, the attachment sale and all the tax deeds were ruled to be invalid; and then the question arose as to the defendant’s right to be allowed compensation under sec. 4693 of the compiled laws. At the trial the plaintiff objected that the defendant could not give the tax deeds in evidence and claim possession under them, because, in the chancery proceeding, he had not, in any way, set up his tax titles. This involves, as I understand, the only question in the case, and the various errors all point to that. 1. The tax deeds were the competent evidence of the fact that the lands had been sold at tax sale and deeded by the Auditor General. No authority need be cited to prove this. They were under the statute prima facie evidence of title. The burden of proof to show the invalidity of such deeds was thereby placed on the plaintiff. — Rev. Stat. of 184-6, § 82, p. 114; 1 Comp.' L.p. 818 (906); Sibley v. Smith, 2 Mich. 486; Lacey v. Davis, 4 Id. Ilf). The defendant had a right to put in all his tax deeds; in other words, to rely on all his itftles in defense, so held expressly in this court. — Tweed v. Metcalf, 4 Mich. 587; Amberg v. Rogers, 9 Id. 882; Case v. Dean, 16 Id. 80. 2. The chancery proceedings constituted no. estoppel. A judgment or decree does not estop a person from raising, in a subsequent action, questions not litigated or decided in the first action. — Enauth v. Bassett, 84 Barb. 81; 16 N Y. 575. No acts work an estoppel in pais unless some one has been thereby induced to act in such way that it would now be inequitable to allow the contrary to be set up. Aclcley vs. Dygert, 88 Barb., 176; Dezell vs. Odell, 8 Hill, 226; Lawrence v. Brown, 5 N. Y., 894; Ohautauque BanJc vs. White, 6 Id., 286; Jewett vs. Miller, 10 Id., Jfi2; Dlumb vs. Cattaraugus Mut. Ins. Go., 18 Id. 892.