Gibson v. Boynton

The opinion of the court was delivered by Smith, J.:

This action was brought by Gibson to recover the northwest quarter of section 17 in township 27 of range 41, in Stanton county.'

There is no conflict in the evidence, and it appears therefrom that Mary J. L. Maine, by her trustee, acquired the title of the patentee to the entire tract by deed; that thereafter one John Plummer obtained a tax deed to the land and brought action to quiet the title, procuring service by publication against “Jeremiah Lillibridge, Trustee for Mary J. L. Maine; Mary J. L. Maine and-Maine, her husband, whose real name is unknown,” and obtained a judgment quieting ■the title. The trustee and Máry J. L. Maine died before the judgment was rendered. Mary J. L. Maine left surviving her, as her heirs, her husband, whose right had been extinguished by the judgment, arid two *713 daughters who conveyed their interest in the land to the appellant. John Plummer conveyed his rights, acquired by the tax deed and by the judgment quieting the title, to the appellee. The tax deed obtained by Plummer is confessedly void or voidable, but it is contended, and we think correctly, that the deed was validated by the judgment as against the husband of Mary J. L. Maine as to the one-half interest in the land inherited by him from his deceased wife. The interest inherited by the daughters from their mother, however, was not affected by the judgment as they were not parties to the action. ■ It appears, then, that the parties hereto each own a one-half interest in the land, and the. appellee claims and the court held that they are tenants in common and, in effect, that one tenant in common can not maintain ejectment against the other.

In this case each party claimed full title to the land adverse to the other. The appellant contends, and cites authorities in support of his contention, that in this situation the parties are not tenants in common. However this may be, it is in evidence that appellee holds under a tax deed of record which purports to convey the entire title to the land. Section 9485 of the General Statutes of 1909 reads, in part, as follows:

“Any person putting on record any tax deed shall be deemed to have set up such a title to the land described in such deed as will enable the party claiming to own the same land to maintain an action for the recovery of the possession thereof against any person claiming under the deed, whether such person is in actual possession of the land or not.”

Assuming, without deciding, that the parties are tenants in common, and conceding that usually one tenant in common can not maintain an action for possession against the other, it must be said that this statute, under the situation presented, revokes the rule. Otherwise the holder of the fee to a moiety of the title to a tract of land would be powerless to defend his rights *714 against one who obtained a voidable tax deed to the entire tract, and the hands of the holder of the moiety of fee title might thus be tied until the statute of limitations effectually ripened the title under the tax deed.

The judgment is reversed.