Lessee of Christopher Neiswanger v. Eli W. Gwynne.
The purchaser at a tax sale acquires no better title than, was held by the former owner at the time of sale.
The plaintiff claimed under a patent, dated November 20, 1838, the defendant set up a deed under a tax sale, dated July 29,. 1831; held, no defense at law against the legal title of the patentee.
But the purchaser is, under the occupying claimant law, entitled to his claim for improvements and taxes paid by him.
This is ail action of ejectment, from Madison county, upon the following agreed statement of facts:
“It is ^agreed that the patent for the land in controversy issued to Christopher Neiswanger, November 20, 1838, which is part of this case. That Eli W. Gwynne is in possession of the premises, claiming under a deed executed by P. McLene, auditor of Madison county (which said McLene was, and for many years prior had been auditor of said county), dated July 29,1831, to Lyne Starling, and by deed from said Lyne Starling, dated April 30,1832, to said Eli W. Gwynne for the land in controversy, both of which are made part of this case. .
*“ If the court shall be of opinion that the plaintiff, by law, is entitled to recover, judgment shall be entered for him for one cent damages and costs; and, in that case, the defendant shall have, if the court shall be of opinion he is entitled to it, the benefit of the occupying claimant law. If the court shall be of opinion the defendant is entitled to recover, judgment shall be ontered for him, and costs.”
The land was situated in the Yirginia Military District, and was listed and forfeited in the name of David Ross, original proprietor. The patent issued to Christopher Neiswanger, assignee of David Ross.
Brush and Gilbert, for plaintiff:
On the part of the plaintiff, it is insisted that the deed of the auditor, admitting that it is regularly and properly executed, can not be introduced to defeat the claim of the plaintiff at law.
The defendant (if he possess anything by virtue of that deed) can take only' the title of the warrantee; and this, prior to the is *66suing of the patent, was a mere equity upon which an ejectment could not be sustained. 7 Ohio, 146, pt. 1.
Neither the forfeiture to, nor the sale by, tho state could fortify the title. The owner could not forfeit a larger title than he had, and the state could not sell a larger title than that forfeited. Tho warrantee could not have sustained an ejectment prior to the issuing of the patent. The state could not have sustained an ejectment subsequent to the forfeiture, and it is not perceived by what operation the grantee of the state can now be enabled to exercise a right not possessed by his grantor. If the title of the defendant be not sufficient to sustain an ejectment, is it available as a defense against the legal title ? It is not, unless the title of the plaintiff, by virtue of the patent, inures to defendant; and this will hardly be insisted on in a court of law.
It will, perhaps, be contended that this defect, if it exist at all, is cured by section 6 of the law of 1827, which provides that tho deed of the auditor shall convey a good and valid title and be roceived by all courts, etc. These ^provisions, however, are supposed to refer to “ a good and valid ” title to the title or estate of the owners at the time of forfeiture; and this, as before observed, was a mere equity.
J. W. Andrews and G. Swan, for defendant:
All lands are subject to taxation. 23 Ohio L. 60, sec. 1. And, by section 21 of the same act, the state has a lien for taxes on all real estate, etc., which shall not bo affected by sale or transfer. The land in controversy was entered on June 22, 1810, and the survey was returned and recorded on September 29, 1817. The patent emanated on November 20, 1838.
Now it is admitted that, as between individuals who have no connection with the tax title, an ejectment could not lie upon any evidence of title, however perfect, short of the legal one. We, however, contend that an entry, and much more a survey, in the Yirginia military district, is such an appropriation of the land, at least while they remain unwilbdrawn, as subjects it to taxation and all the consequences of a legal title. Since the law of Congress of March 2,1807, Land Laws of Ohio, 134, surveyed lands are held by a title paramount to a patent obtained by an adversary.
We are not prepared to maintain, nor is it necessary in this case to go so far, that, as against one in actual possession, the holder of the plat and certificate could maintain ejectment upon it; but it is *67clear, from principle and authority, that a patentee can not prevail against an actual possessor under a survey since the passage of the law above referred to. Lessee of McArthur’s Heirs v. Gallaher, 8 Ohio, 517.
We should suppose there could bo no doubt but lands thus held were subject to taxation in this state, and that under our laws tho tax was a lion that every purchaser, subsequent, must take notice of. In fact it would be quite preposterous, and against all views of sound policy to hold that subsequent purchasers took the lands discharged from the tax. If this be law, the holder of lands in the Virginia military district only *needs to neglect or avoid calling for a patent and he may, through all time, avoid the payment of taxes, although the legal owner of the land, against all the world, under a survey.
In fact, the law of January 29,1827, section 6, which was in force when this tract of land was sold for taxes, declares, in terms which admit of no doubt, that the “deed shall convey to the purchaser Or purchasers, his or their heirs or assignee or assignees, a good and valid title to the land so sold.” Counsel on the other side supposes his language means something widely different — the title of the owner. We certainly must demur to this amendment to Ihe law. As if the language quoted were not sufficiently strong to evince the legislator’s intent, the act declares, “and such deed shall be received in all the courts in this state as good evidence of title to the purchaser,” etc. We can not see how language can be more explicit to vest a legal title in the purchaser.
It may be pretty fairly supposed that a court would not feel botind to construe a law very favorable to one attempting to evade the payment of taxes. There is a class of eases in which tho attempt to evade taxes in the shape of duties would be deemed a fraudulent act. 1 Maule & Sel. 593.
The rule laid down in Spurgen v. McElvain, 6 Ohio, 464, is this: “If one intend to aid another in an illegal object he shall not be assisted by the law.” If the holder of a plat and certificate attempt to evade the payment of taxes by procuring a patent after the land has been sold, he deserves not the aid of tho law to enable him to obtain possession. If the plat and certificate title is gone by the tax-sale, the patent, so far as it regards the state and the purchaser, has no foundation, and ought to be hold void as against the deed of the state, which, by law, is to be good evi*68dence of title. If the patent is paramount evidence of title, then the statutory evidence of title, instead of conveying to the purchaser a title to the land, is altogether nugatory.
The case before the court is one very similar in principle to that of the Lessee of Jackson et al. v. Williams, 10 Ohio, 69. It was there held that a plat and certificate gave such an interest *in an estate as could be sold under an execution, and when a patent afterward emanated, it inured to the benefit of the purchaser.
Certainly the deed of the state, declared to “ be a good and valid title to the land,” ought to have as much effect as that of an individual with a covenant of warranty; and when land has beem sold for taxes, and a patent afterward issues to the delinquent, it ought, on principles of public policy, to inure to the benefit of the purchaser, and estop the defaulter from setting up his naked, legal evidence against a fair and bona fide purchaser under the law.
The opposing counsel can not deny but the defendant here has a clear, equitable title lo the land in controversy. He seeks to recover upon a naked, legal title against one which he says has only an equity. We deny this position; but suppose it was as the plaintiff claims, would it not prevent circuity of action and a great unnecessary expense to hold the patentee estopj>ed by his delinquencies, and suffering the land to be sold for taxes ? The action of ejectment is one within the complete control of the court, nor will it ever be suffered to be used for the purpose of oppression of aiding one who has been guilty of unfair or fraudulent conduct..
So, when it appeared that the defendant held under the judgment debtor as tenant, it was held he was estopped to show title out of a debtor. Jackson v. Jones, 9 Conn. 182; Adams on Eject. 69, n. 1. The defendant, in ejectment brought by a purchaser, can not question the title. The sheriff stands as the attorney of the debtor. Cooper v. Gilbraith, 3 Wash. C. C. 546; Adams on Eject. 301, n. 1. Nor can one whose property has been sold by the sheriff defeat the purchaser in obtaining possession by connecting himself with one that has a good title. Tillinghast’s Adams on Eject. 301.