Scribner, Burroughs & Co. v. Vandercook

Adams, Oh. J.

1. judicial ment. “ After the tax sale, but before the tax deed was executed, the plaintiffs obtained a judgment against the owner of the land; sold the same upon execution, and became the purchasers thereof at the sheriff’s sale. The defendant in the meantime held a junior lien upon the land. As junior lien-holder he paid to the clerk of the court, with the view of redeeming from the execution sale, the sum of $106.02, being the amount for which the land was sold, with interest. The payment was made within the time allowed by statute to junior lien holders to redeem from execution sales, but the payment was made too late nevertheless to effect a redemption, because a tax title had then virtually accrued. The tax deed had not been executed, but the plaintiffs had become entitled to one, and soon after procured one. The money, however, paid by the defendant with a view to redeeming from the execution sale was not withdrawn by him, but was allowed to remain in tho hands of the clork, and afterward the plaintiffs drew it and executed to the defendant upon the sheriff’s certificate held by them a writing, which is in these words: “We hereby assign, transfer, and set over to M. Vandercook the within certificate and the lands therein described,” and they delivered the same to the defendant.

It is averred by the defendant in his answer and cross-bill, and not denied, .that this was done in consideration of the $106.02 theretofore paid by him to the clerk of the court, and drawn by the plaintiffs. The defendant’s theory is that this money was received by the plaintiffs for the land, and that he thereby became- at least the equitable owner'. The plaintiffs’ theory is that the money was received by them for a void sheriff’s certificate, and that the defendant took nothing. ,,

If the money had been received by plaintiffs, and the assignment had been made by them to defendant, under a mistaken idea that no tax title had at that time accrued, we are not prepared to say that plaintiff's, upon discovery that a tax title had accrued, might not properly Insist upon it, and remit defendant to his right of action against them for money received by them under a mistake. But they do not aver any mistake. Indeed, it is abundantly evident that there was no mistake on their part. If there was none they knew when they took the defendant’s money that he would -take in consideration of it either the land or nothing. In our opinion they cannot be permitted, while still holding the money, to insist that the defendant took nothing. The assignment purports to he a transfer of the land as well as of the certificate. If we should hold that the money was not received by plaintiffs for the land we should convict them of dishonesty. In our opinion the defendant is entitled to a decree for a deed.

Reversed.