PAYNE N r . DANLEY. VOL. 18 *PAYNE ["441 V. DANLEY. The proceeding for the confirmation of a tax title must be governed by the ordinary rules of chancery practice, except where otherwise prescribed by statute: and all testimony, resting in parol, must be presented in the form of written depositions unless dispensed with, and oral testimony at the hearing be authorized by the direction of the court. The interest of two tenants in common, in a tract of land, may be assessed separately, and upon default by one to pay the taxes assessed upon his undivided, half, it may be sold without a sale of the entire interest of both tenants in common—the cote/ aut having paid his share of the tax.
JAN. TERM, 1857. PAYNE V. DANLEY. Appeal from the Circuit Court of Drew only for his own, and no one else pay-County in Chancery. ing for the former, the forfeiture ac-HON. crued. THEODORIC F. SOR-Upon the ground that he had RELLS, Circuit Judge. thus paid out money for the S. H. Hempstead, for the appellant. bank, Payne claimed a lien, for the sum paid out, on the undi Pike & Cummins, for the appellee. • vided half owned by that cor- [*443 442.] *SCOTT, J. This was a pro-poration, and upon that ground predi-ceeding on the chancery side of the cated his right to intervene and con-Drew circuit court, for the confirma-test the confirmation. No question tion to the complainant below, of title below seems to have been raised as to to a number of tracts of land specified the right of Payne to intervene. in his petition, purchased by him at a At the hearing, Payne, to sustain the sale by the auditor in pursuance of the several irregularities in the proceed-statute: the undivided half of the lands ings of the collector of taxes, which he thus sold and purchased having been had alleged in his answer and pleas, previously forfeited to the State for the offered to read in evidence a writing or non-payment of taxes assessed upon paper, purporting in its caption, to be a them ; and not having been redeemed "list of lands to be offered for sale on within the time prescribed by law. the first Monday of September, 1848 With the petition were filed the sev-for taxes, etc.," under which divers eral auditor's deeds, and the publica-tracts of land were described ; their tion prescribed by the statute, under value, the years for which they were which the proceeding was instituted, taxed, the amount of taxes on each, July proven. amount of penalty and the aggregate The confirmation of title was not were set out ; opposite to which were sought as to the entire estate in all the the respective owners' names; in which lands, but as to an undivided half of the lands in question were included, all the lands, that only having been and opposite which appeared the sold, purchased and conveyed, as ap-words : "Moses U. Payne and Bank of pears by the petition, and the auditor's Kentucky, each owns one undivided deeds exhibited therewith. half." signed by no oue, but endorsed Payne, the appellant, intervened and —"filed September 16th, 1848—Y. R. contested the confirmation, setting up, Royal, Clerk," which the petitioner by answer and by pleas, several irregu-objected to, and the court sustaining larities in the proceedings of the col-the objection refused to allow the paper lector of taxes. to be read in evidence. Whereupon, The answer, aud the admissions at Payne called Young R. Royal, the the hearing showed that, at the time clerk of Drew county, and proposed to of the forfeiture, and for so_me years prove by him that that paper was the previous thereto, Payne owned an un-only list ever filed in his office in re-divided half of the lands in question, spect to non-resident lands in that year and that the other undivided half be-and that that related to such lands, and longed to the Bank of Kentucky or offered to prove by him some other some other non-resident. That, for matters connected therewith, which it several years, Payne not only paid the is not necessary to set out ; but the taxes on his own half, but on the court refused to allow the witness to be bank's half also. At length he ceased sworn, on the objection of the peti-to pay for the bank's half, and paying tioner, that all such testimony should 39 Rep.
PAYNE V. DANLEY. VOL. 18 be by deposition, and not oral. Payne to invalidate the sale. It was the un-took his bills of exceptions, aud the divided equal share in the several court, finding all of the alleged irregu-tracts of land owned by two tenants in larities unsustained by the evidence in common, listed to b . ith of them, as the cause, decreed confirmation, accord-owning each one-half, the one tenant ing to the prayer of the . petitioner, and having duly paid his half of the tax, Payne appealed to this court. and the sale was to satisfy the residue There are but two grounds of reversal of the assessment. insisted upon by the appellants's coun-In the case of Roukendorff v. Taylor's sel in his argument. The one, that the lessee (4 .Peters R.), the land was court improperly rejected the testi-owned by two tenants in common. mony offered, and the other, that the The assessment lists showed that one-purchase and sale in question were il-half of the quantity was set down to legal and void, because the interest and each tenant—and thus each was taxed estate of one tenant in common only, separately for his undivided interest. 4441 was sold, hand not the whole One of the tenants in common paid his tract of hind as an entirety, or some part of the tax, and the other failing to specific part thereof as such. do so, his undivided share of the land With regard to the first question was sold. there can be no difficulty. This pro-The validity of that sale was con-ceeding is, substantially, a bill of peace. tested, and the circuit court of the Dis-Overmany . Parker, 4 Hemps. 6. C. _R., trict of Columbia, sustaining the objec-p. 694. Although special in its form, tion, held : "that the entire land should it is, iu its nature, but the application have been assessed to the two ten-of a well kown chancery remedy. (Id. *ants in common, Taylor and r445 p. 695.) It must, therefore, be gov-Toland, and accordingly advertised and erned by the ordinary rules of chan-sold as assessed to them ;" and so in-cery practice, unless in matters other-structed the jury. But the supreme court overruled the wise specially prescribed by the statute. objection, slying (Id. p. 362): "the There does not hppear to have been same valuation was placed on each any direction of the court below, pre-half of the land, so that so far as the viously, that authorized oral testimony assessment goes, it did not substantial-at the hearing, and dispensed with the ly differ from the instruction given. ordinary necessity of written deposi-But the sale, to be valid, need not ex-tions. (Dig., ch. 28, secs. (i5, 66.) The tend to the interest of both tenants ; written document offered to be read, one having paid his share of the tax, was not an exhibit in this case. Nor the interest of the other may well be could it. have been read in evidence, sold for the balance." anywhere, unless accompained by This authority goes to the extent of other proof, which, resting in parol, holding the assessment good, whether ought, in this proceeding, to have been made in the form used in the case at presented iu the form of written dep-bar, or in that used in the case cited ; osition, unless dispensed with. became "substantially" the same. The other ground, although not clear And that a sale to be valid need not ex-of difficulty when considered in refer-tend to the entire interest of both ten-ence to cases that might possibly arise, ants, but would be equally so if the es-does not seem tenable as an objection tate in fee of one of the tenants only to the sale made in this case. was sold upon his default, his co-tenant There is no want of certainty, as to having paid his own share of the tax. the laud bought and sold in this case, Black. on Tax Titles, 332.
JAN. TERM, 1857. We see no reason to doubt either as applied to the assessment and g ale in the case before us. The decree will be affirmed. Absent, Hon. Thos. B. Healy. Cited in Worthen v. Ratcliffe, 42-344.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.