Oliver v. Montgomery

Day, J.

i bes adjxt§ttauAjucig-' meat. We do not deem it necessary in this case to determine whether in any case and under any circumstance, a tenant ™ coinmon may acquire a tax title, and set it up against his co-tenants. At the time of instituting the partition proceedings William Montgomery held the deeds of the Marshal of Sioux City for all the lands which were the subject of the partition suit. lie commenced his action for partition, and made no claim of title in virtue of these tax deeds. Upon the contrary he conceded that the other parties owned an undivided interest in the lots then the subject of controversy, and he asked that they might be divided in proportion to the respective interests of the parties. He procured a judgment to be entered, the present plaintiff having made default, in which she was declared to be the sole owner of the lots which are the subjects of the present action.

If he was the sole owner of all the lots in fee, he should have declared the same, and instead of asking partition, he should have demanded, if necessary, that his title to .the whole be confirmed and quieted. But now we have the action.of a competent court, in a case in which the present plaintiff, and the ancestor of defendants, were parties, involving the subject matter of this suit, in which it was regularly adjudicated that this plaintiff is the owner of the lots in controversy. This judgment must estop William Montgomery and those claiming under him, from asserting a claim to this property under any chain of title which he held at the time the partition suit ■was commenced. This view is conclusive against any title which may be claimed under the marshal’s deeds.

, _. eqiü_ ty: estoppel, II. Like principles apply to the treasurer’s deed. This deed was executed on the lQfh day of April, 1865, either during the pendency of the partition suit, or before its commencement, and seventeen days before the judgment in the partition suit. If Hattie Oliver had been plaintiff in that partition suit, alleging that she was the owner of an undivided one-third of the lots, and asking that they be assigned to her in severalty, and William Montgomery had suffered judgment to go against him, without setting up a title acquired before judgment, and which might have been pleaded as a *604 defense, would not the judgment estop him and his privies from afterward insisting upon such title? Interest reipublieae ut sit finis litum. Where suit is brought, it is the duty of the defendant to plead everything upon whieli he can rely to defeat the plaintiff’s right. If he fails to do this even equity will grant no relief, unless upon distinct equitable grounds, such as fraud, accident or mistake. Campbell v. Ayers, 1 Iowa, 258 . It muát be equally incumbent upon a plaintiff to set forth his whole claim, and allege all the. grounds of it. Surely a party would not be permitted to have a partition of real estate, upon the ground that he owned an undivided one-third of it, and, after a judgment is obtained .confirming his title to him as claimed, and also confirming the title of the defendants to the remainder, be allowed to maintain a.further action for the whole, against the same parties, upon the ground that when the former judgment was rendered he owned it all, 'unless he could show some ground of equitable interference. 'Estoppels by judgment must be reciprocal, and it can make no difference in principle whether the party is plaintiff or defendant in the action. If Montgomery would have been estopped, had he been defendant, and had failed to plead a 'title which he might have pleaded before judgment, he must ■be equally estopped, being plaintiff, and failing in like manner to plead the same title. It seems to us, therefore; that the present defendants, who are in privity with William Montgomery, deceased, can make no claim to the property in virtue '■of the treasurer’s deed, and that the court erred in confirming defendant’s title to the land in controversy.

•3. TAxusipayment by oo-tenant. ■' III. It appears from the judgment in the partition suit that ’no allowance was made William Montgomery on- account of the taxes which he had paid. ITis claim in that - . . , , , regard seems not to have been passed upon or ■considered at all. It was probably not competent for the court in that action to grant him the relief which he asked. Plaintiff, in her petition, offered to reimburse defendants for ■the taxes paid, if it shall be determined that she is liable to •do so.

- Inasmuch .as William Montgomery was, at least equally with *605 liis co-tenants, under obligation to pay the taxes upon these lands, and'the payments were necessary for the protection of his own property, the recovery of the defendants will be limited to the amounts paid at the respective sales, and the amounts since paid, with interest on all from the dates of payment to the date of final decree, at six per cent. A full statement of the sums and dates of payment is attached to the additional abstract. As we understand the abstract, this statehnent includes the taxes paid upon all the lots owned in common, and not merely upon the lots , which plaintiff claims. Defendants will have judgment for one-third this amount, with interest at six per cent, from the respective dates of payment.

A decree will be entered quieting plaintiff’s title to the lots which were assigned to her by the partition judgment, and barring any claim of defendants under the tax deeds mentioned. Decree may be entered in this Court if desired.

Reversed.