To preclude a person from acquiring a valid tax title, he must be under some legal or moral obligation to pay the tax, or there must be something in his contract of fiduciary relation to the owner of the property which renders it inequitable, as between them, that he should acquire the title. Brown v. Simons, 44 N.H. 475, 477, 478; Woodbury v. Swan, 59 N.H. 22; Kezer v. Clifford, 59 N.H. 208; Blackwood v. Van Vleit, 30 Mich. 118, 121; Moss v. Shear, 25 Cal. 38; Bowman v. Cockrill, 6 Kan. 311, 336; Cool. Taxation 346-348. Owing the plaintiff's ancestor no duty in respect to the delinquent tax, and standing in no contract or fiduciary relation with him, there was nothing precluding the defendant from acquiring a valid title to the land in suit as against him; and there being no defect in the proceedings pertaining to the tax sale, the effect of the defendant's purchase was to extinguish the ancestor's existing title. Eastman v. Thayer, 60 N.H. 408, 418. *Page 95
Applying the like principles, the defendant was precluded from becoming a purchaser of the land for his own benefit, as against his wife. The obligations and duties of husbands and wives to each other, both express and implied, create such relations of trust and confidence between them that neither can acquire the other's property by a clandestine payment of taxes. Such a seizure of each other's estate, alike inequitable and shocking to the moral sense, is believed to be unsupported by any adjudged case, and would be a palpable violation of the marital contract, which, from its very nature, creates a mutual right of faith in the constant regard of each for the interests and welfare of the other. In this respect husband and wife are still a legal unit; for while the legislation on which the defendant relies has greatly enlarged the property and civil rights of the wife, and materially diminished the liabilities and the powers of the husband, it has proceeded on the ground of equal right of personal liberty, and of ownership and control of property, and not on the ground of dissolving or in any degree impairing the relations of trust and confidence which marriage presupposes, and which are made by the marital contract an essential part of the marital relation.
In the progress of society juster notions of the nature of the marriage contract have obtained, and accordingly the theory of servitude formerly attaching to the status of the wife has been superseded by the theory of equality. Her legal existence is now recognized. She may hold property, earned, purchased, inherited, or devised, for her own benefit. She may contract and sue and be sued in her own behalf. Her civil rights are no longer subject to her husband's control. She may exercise the right of suffrage in educational matters, and be elected to any school office. But there is nothing in the series of statutes by which her rights and privileges have gradually approximated an equality with those of her husband that abrogates the marital rights of trust and confidence incident to the relation in all stages of society. On the other hand, the existence and continuance of these relations are recognized and enforced in the statute rendering husband and wife competent witnesses for and against each other, by expressly excluding them when their testimony "would lead to a violation of marital confidence" (G. L., c. 228, ss. 20, 21, Clements v. Marston, 52 N.H. 31); and the progress of common law has been in the same direction, in accordance with the advance of popular intelligence by which it has been moulded.
The obligations, the disabilities, and the privileges, inherently consequent upon the marriage union, remain unchanged. The contract, stipulatory or consensual, still is "for better for worse, for richer for poorer, in sickness and in health, to love and to cherish." And although "they two are no longer one, and he that one," in respect to property, they still have interests, direct and indirect, in each other's estates, and these interests alone, like those *Page 96 of partners and tenants in common, are sufficient to prohibit such an adverse resort to a tax title by either as in the fair understanding of both would be a breach of marital faith. But apart from mutual interests of property, which are of but secondary importance, such a breach of faith is a legally impossible destruction of that relation of trust established by the marriage, and which society has even more interest in preserving than the parties themselves. While unjust disabilities of the wife have been removed, there are implied stipulations of the contract which each party remains justly disabled to violate.
Judgment for the plaintiff.
BINGHAM, J., did not sit: the others concurred.