1 Reported in 292 N.W. 257. Plaintiff brought this action to quiet title to certain real estate, basing her claim on a tax title. She appeals from a judgment in defendants' favor.
The property involved is in the city of Benson, Swift county. It constituted the homestead of one J.N. Edwards prior to his death on January 24, 1930. Thereafter a life estate therein was decreed to his widow, Alvira T. Edwards, one of the defendants in this action, and the remainder to his children and grandchildren by a former marriage, the other defendants herein. Plaintiff is a daughter of Alvira T. Edwards by a former marriage and lives in Minneapolis. Her mother occupied the premises until September, 1936, when she moved to Minneapolis to reside with plaintiff.
Mrs. Edwards failed to pay the 1929 taxes, and the property was sold at tax sale on May 11, 1931, to plaintiff for $193.63. A certificate of tax judgment sale issued to her. She also purchased the property at tax sale each of the succeeding years to and including 1936, and there issued to her a similar certificate each of such years. She paid the 1935 and 1936 taxes when they became due and procured receipts therefor. In May, 1936, plaintiff presented her 1931 certificate to the county auditor of Swift county, whereupon he issued and caused to be served on Alvira T. Edwards, the occupant, a notice of expiration of time for redemption. No redemption was made. Plaintiff thereafter instituted this action to quiet title to the premises.
The trial court, among other things, found that there was collusion between the life tenant and plaintiff to defeat the rights of the remaindermen and that the tax judgment was void; it ordered judgment dismissing the action with prejudice. Plaintiff's alternative motion for amended findings of fact or a new trial was denied. Thereafter she moved for a determination of the amount of the taxes paid and in order adjudging the same to be a lien. It was denied, and plaintiff then moved for an order vacating the previously mentioned order for judgment and for an *Page 457 order determining the amount of taxes paid and adjudging the same to be a lien. These motions and plaintiff's further motion for a new trial were denied. Judgment was entered dismissing the action with prejudice and denying plaintiff any lien for taxes paid.
On this appeal it is contended: (1) That the trial court erred in permitting evidence to be introduced to prove fraud and collusion; (2) that the evidence does not sustain a finding of fraud or collusion on the part of plaintiff and the life tenant; and (3) that plaintiff is entitled to a lien on the premises for the amount of the taxes paid by her. It is not here argued, as it was below, that the trial court erred insofar as it based its conclusion that the tax judgment was void upon the fact that the property in question was inadequately described in the proceeding culminating in the sale thereof for delinquent taxes.
1. Plaintiff alleged in her complaint that she was the owner of certain described land and in possession thereof. The basis of her claim was not referred to or set out in the complaint. The answer denied that plaintiff was the owner of the land or entitled to its possession. Upon trial, plaintiff produced, in support of her claim of ownership, a certificate of tax judgment sale. Defendants introduced evidence tending to show that this title was procured by fraud and collusion. Appellant argues that this evidence was not admissible under the pleadings. It is true that as a general rule fraud is new matter to be specially pleaded and is inadmissible under a general denial. See 3 Dunnell, Minn. Dig. (2 ed.) § 3836, and 5Id. § 7585. This rule, however, has no application where a written instrument is introduced in support of a general allegation not disclosing its existence. In Reeves Co. v. Cress, 80 Minn. 466, 83 N.W. 443, it was held that when a writing is introduced in support of an allegation in a pleading which does not in any way indicate the existence thereof, it cannot be required that the opposite party shall anticipate its production and allege in his pleading fraud in its procurement in order to introduce evidence of such fraud. See also Adamson v. *Page 458 Wiggins, 45 Minn. 448, 48 N.W. 185. Plaintiff's allegation of ownership did not disclose to defendants that she was relying on a tax deed. Defendants could not, therefore, under the rule of the Reeves case [80 Minn. 466, 83 N.W. 443], be required to have alleged fraud in order to introduce evidence thereof.
2. There is little conflict in the testimony which we now consider. It does not appear that Mrs. Edwards ever made any serious attempt to fulfill her duty to pay the taxes on the homestead. Yet by writing to one of the remaindermen and stating that she had all she could do to keep up the taxes on the home she implied that the taxes were being paid. The relations between Mrs. Edwards and plaintiff appear to have been very friendly. From the testimony it can be gathered that Mrs. Edwards paid the money for delinquent taxes most of the time although she did so in the name of her daughter and, it is claimed, with Miss Turner's money. At the time the period for redemption expired the amount required to redeem was considerably less than the value of the house, and yet, so far as the record shows, Mrs. Edwards made no effort to secure funds with which to pay the taxes and prevent the acquisition of title by her daughter. The period for redemption had but recently expired when Mrs. Edwards was acting as agent for plaintiff in an attempt to sell the property. It is not without significance that Mrs. Edwards, when she left the home, moved to Minneapolis to live with plaintiff. The net result of the transaction was that the life tenant lived in the homestead for about five years without paying the taxes, whereupon her daughter by a former marriage obtained legal title to the property, valued at about $5,000, for less than $1,000. It may be added that the testimony shows quite clearly that both Mrs. Edwards and Rose Turner intended this result, knowing that as a consequence the children of Mr. Edwards would be deprived of their interest in the home.
It is quite apparent here that what plaintiff did was to advance money to her mother for the purpose of paying the taxes. We quote from her testimony: *Page 459
Q. "You were supposed to have $193.63 on the 11th day of May, 1931. Did you send that by cash in an envelope to your mother?
A. "I did not; my mother came down to the G. A. R. convention; she has done so for many, many years. Some of those conventions come in May, some of the various departmental meetings come along before that. She has been down probably a dozen times, practically every year, ever since she came here. I saw her many times when she was there and I gave her the money; when she wasn't there I came up and gave it to her. I myself came up very often, and she is often down there when I was on duty; I have always seen to it that she got that money in time to pay the taxes."
Collusion is a secret agreement and cooperation for a fraudulent or deceitful purpose. Webster's New International Dictionary 2d 1935. It implies a secret understanding whereby one party plays into another's hands for fraudulent purposes. W. E. Bowen Improvement Co. v. Van Hafften, 209 Mo. App. 629,238 S.W. 147; Brainerd Dispatch Newspaper Co. v. County of Crow Wing, 196 Minn. 194, 196, 264 N.W. 779, 780; Lindstrom v. National L. Ins. Co. 84 Or. 588, 594, 165 P. 675, 677. In its legal significance it involves an agreement between two or more persons to defraud another of his rights by forms of law or to obtain an object for bidden by law. Burt v. Clague, 183 Minn. 109,235 N.W. 620. It is a general rule that fraud renders voidable everything into which it enters. The court will look through any form of instrument or proceeding, no matter how solemn, in order to prevent a party from profiting by his own fraud. It is immaterial that he has conformed to all the formal requirements of the law. 3 Dunnell, Minn. Dig. (2 ed. 1937 Supp.) § 3834; Baart v. Martin, 99 Minn. 197, 108 N.W. 945.
The court could find, as it did, collusion between the life tenant and plaintiff.
3. Plaintiff concedes that her tax title is invalid not because of collusion, as found by the trial court, but because the property *Page 460 was improperly described in the certificate and notice. She contends, however, that, even though her title is invalid, she is entitled to a lien on the premises involved for the amount of the taxes and penalties paid by her with interest at the rate specified in the statute. She bases her claim on the provisions of 1 Mason Minn. St. 1927, § 2188, which gives a lien to a person whose tax title is declared invalid for any cause other than one which renders the tax embraced in the certificate void. Involved in this case, however, is a factor not covered by the statute and probably not even contemplated by it. The trial court found and, as we have indicated, the evidence sustains such finding, that plaintiff and the life tenant colluded to defeat the interests of the remaindermen. That presents for determination the question as to whether plaintiff under such circumstances is in a position to acquire any greater interest than the life tenant would have acquired had she purchased the property at tax sale and thereafter caused a notice of expiration of time for redemption to be served.
As between the life tenant and the remaindermen, it was the duty of the former to pay the taxes. 2 Dunnell, Minn. Dig. (2 ed. Supps.) § 3170; Wilson v. Proctor, 28 Minn. 13,8 N.W. 830; Smalley v. Isaacson, 40 Minn. 450, 42 N.W. 352; St. Paul T. Co. v. Mintzer, 65 Minn. 124, 67 N.W. 657, 32 L.R.A. 756,60 A.S.R. 444; Baldwin v. Zien, 117 Minn. 178, 186,134 N.W. 498; Nordlund v. Dahlgren, 130 Minn. 462, 153 N.W. 876, Ann. Cas. 1917B, 941; Kreuscher v. Roth, 152 Minn. 320,188 N.W. 996. It appears that Mr. Edwards died in January, 1930, and that plaintiff's certificate purchased in 1931 represented taxes for the year 1929. Any claim that the life tenant was not responsible for these taxes is disposed of in Baldwin v. Zien,supra.
The acquisition of a tax title by a life tenant is treated as a payment or redemption thereof. Any other rule would permit the defaulting life tenant to benefit by his own wrong. See generally 17 A.L.R. 1399; 94 A.L.R. 321; Duffley v. McCaskey, 345 Mo. 550, 134 S.W.2d 62, 126 A.L.R. 853. *Page 461
The considerations of public policy upon which these rules are based cannot be evaded by an arrangement between the life tenant and another whereby the life tenant allows taxes to become delinquent in order to enable such other person to acquire a tax title free from the interests of the remaindermen. Restatement, Property, § 149, pp. 488, 490, and 491, provides:
"When an estate for life and a future interest exist in the same land, and both interests become subject to sale for the collection of a sum of money, and, as between the owner of the estate for life and the owner of such future interest, this whole sum is payable by the owner of the estate for life, or out of his estate, then the owner of the estate for life, by acquiring the interests so sold, acquires no interest which he can assert in derogation of the said future interest.
* * * * * *
"b. Acquisitions direct and indirect. The owner of the estate for life acquires 'the interests so sold,' within the meaning of this Section whether he buys directly and in his own name at the time when such interests are offered for sale, or buys through an agent, or other person acting in collusion with him, or later buys from a person who acquired on the original sale an ownership which, by him, could have been asserted in derogation of the future interests included in such sale. This disability of the owner of the estate for life makes likewise ineffective any acquisition of the interests so offered for sale, by any person who buys at the sale, under a collusive agreement with the owner of the estate for life by which such purchase is to benefit the owner of the estate for life."
The rule stated in this section of the Restatement finds substantial support in the decided cases. 3 Simes, Law of Future Interests, § 637, note 50; Boon v. Root, 137 Wis. 451,119 N.W. 121; Fountain v. Starbuck (Mo.) 209 S.W. 900; Newport v. Hatton, 195 Cal. 132, 231 P. 987; First Congregational Church v. Terry, 130 Iowa, 513, 107 N.W. 305, 114 A.S.R. 443; Inman v. Quirey, 128 Ark. 605, 194 S.W. 858. While no case from this *Page 462 jurisdiction precisely in point has been found, Hall v. Hall,173 Minn. 128, 216 N.W. 798, enunciates the principle that parties cannot void a fiduciary disability by collusive arrangements with third persons. See also 24 Minn. L.Rev. p. 589.
Because of the likelihood that life tenants would be tempted to defeat the interests of remaindermen by collusion with third persons and the difficulty of proving the fraudulent character of such plans, courts have considered the relation of the parties as an important factor in deciding whether or not there was collusion. Where the relation between the life tenant and the purchaser at the tax sale is that of husband and wife, some courts apply a conclusive presumption (which is, in effect, a rule of law [Ryan v. Metropolitan L. Ins. Co. 206 Minn. 562,289 N.W. 557]) that fraud was practiced. First Congregational Church v. Terry, 130 Iowa, 513, 107 N.W. 305,114 A.S.R. 443. The likelihood of there having been collusion where the relation is that of parent and child is, as a general rule, less than where the relation is that of husband and wife. The temptation to treat the remaindermen unjustly and the difficulty of proving collusion does, however, remain. The parent-child relationship as between a life tenant and a purchaser of the tax title is a factor to be given serious consideration in deciding if the breach of duty on the part of the one and the purchase by the other were the fruit of a collusive agreement between them. See Cain v. McGeenty,41 Minn. 194, 42 N.W. 933; Barnard v. Seaman, 169 Minn. 409,211 N.W. 473.
It is our opinion (1) that the life tenant could not acquire a title adverse to that of the remaindermen at the tax foreclosure sale and that such a purchase would be treated as a payment of taxes; (2) that the evidence amply sustains the trial court's finding that plaintiff was acting in collusion with the life tenant when she sought to obtain a tax title to the premises herein involved; and (3) that in view of the collusive agreement to defeat the interests of the remaindermen plaintiff is in no better position than the life tenant would be had the latter redeemed in her own name. We regard her attempt to acquire title as a payment of taxes in behalf of her mother. *Page 463
It follows that plaintiff is not entitled to a lien against the reversionary interest in the property for the amount of the taxes paid by her. We so hold but without prejudice to her right to apply to the trial court for a lien against the life estate.
Affirmed.