Little v. Edwards

Cassoday, J.

As indicated in the foregoing statement, Albert A. Little died intestate, seised in fee of the lands in question, September 12, 1866. As he left no issue nor parent, and as the law then stood, the title to the premises thereupon descended to his widow during her natural lifetime, and after her decease to his brothers and sisters,— the plaintiffs in this action. Subd. 2, 3, sec. 1, ch. 92, R. S. *651 1858. The widow thereupon became a tenant for life of the premises. Being such tenant, it became her duty to such heirs at law to pay the taxes on the land. She failed to pay the taxes for the year 1867, and hence the land was sold for taxes in 1868; and the tax deed under which the defendants claim title was executed and recorded November 4, 1871. As such “ widowed woman,” she had the right to redeem from such tax sale “ at any time within five years after such sale.” Ch. 89, Laws of 1868; sec. 155, ch. 18, Tay. Stats.; secs. 1181, 1191, 1208, R. S. Her right to redeem, therefore, had she not conveyed, would not have expired until the spring of 1873. The result was that the tax deed to Ellis, November 4, 1871, gave him no title nor constructive possession as against the widow. In legal effect it was the same, as to her, as though he had taken no tax deed but simply held the tax certificate at the time she conveyed to him by warranty deed, November 8, 1871. That deed simply conveyed to Ellis the widow’s life estate in the land. He thereby became a tenant of the land during her life, charged with the duty to the plaintiffs of paying the taxes thereon during that period. The acceptance by Ellis of that deed from the widow necessarily operated as a redemption from, or extinguishment of, his tax lien. The widow did not die until March 1, 1890, and hence the conveyance from Ellis and wife to the defendants, January 2, 1888, was, in effect, a mere transfer from him to them of such tenancy during her life. Of course, such tenancy terminated upon her death; and hence, at the time of the commencement of this action, upon the undisputed evidence, the defendants held possession without any color of right.

By the Court.— The judgment of the circuit court is reversed, and the cause is remanded with direction to enter judgment upon the special verdict in favor of the plaintiffs and against the defendants, and for further proceedings according to law.