DUTY OF GUARDIAN TO PAY TAXES ON WARD’S PROPERTY.

Court of Appeals for Trumbull County.

#### Frank Raub v. Mary Appleby et al.

Decided, October 11, 1918.

*Guardian and Ward*— Relation *of Trust and Confidence*— Prevents *Divesting of Title of Ward*— In *Property Acquired by Guardian at Delinquent Tax Sale.*

It is the duty of tbe guardian of a tenant in common, who is under mental disability to pay tlie taxes on the ward’s property, and such guardian can not acquire title to the common property by allowing ' the taxes to become delinquent and then purchasing the same at a tax sale, and the same rule applies to a tenant in common who is in possession of the property.

*G. P. Gillmer,*for plaintiff.

*J. E. Leffingwell,*contra.

Metcalfe, J.

This action was brought in partition by the plaintiff in error, Frank Raub, against the several defendants to partition certain lands in the city of Niles.

The mother of both the plaintiff and defendants died seized with the property in question. By the terms of her will the land was to be divided equally among the children.

The will provided, also, that so long as any of the children remained unmarried such unmarried child or children should have the right to occupy the property, and the duty of paying the taxes and assessments of all kinds was imposed upon the one so occupying the property.

*463All the plaintiffs and defendants had either died or married excepting Hannah and Lizzie Raub. Hannah is under mental disability, and Mary Appleby is her guardian. Hannah and Lizzie had the right to occupy the premises, and the duty rested upon them jointly to keep up the taxes and assessments.

The taxes, however, were allowed to become delinquent, and the premises were sold at delinquent tax sale and bought in by Mrs. Appleby while acting as such guardian for Hannah. The tax deed is conceded to be in conformity to the law, and under ordinary circumstances would convey a good title.

The question here is whether or not Mrs. Appleby, being a tenant in common with the other parties in this case and guardian of one of the defendants upon whom rested the duty to pay such taxes could, by allowing the taxes to become delinquent, acquire title to the premises at a delinquent tax sale.

We are firmly of the opinion that under the circumstances such a transaction is not authorized by law, and that a deed obtained under these circumstances does not, as against the other tenants in common vest any title in Mary Appleby whatever, beyond a lien upon the land to the amount of the taxes which she paid.

In the ease of *Clark*v. *Lindsay,*47 O. S. 437, the widow of a decedent was entitled to dower in lands of her deceased husband, and the duty of paying the taxes rested upon her. She allowed the taxes to become delinquent and the property was sold and purchased by one of the devisees, or heirs, who was tenant in common with the other parties in the case. Judge Diekman, writing the opinion of the court, uses this language:

> ‘£ The auditor’s deed under the statute vests in the grantee, his heirs and assigns £a good and valid title, both in law and in equity,’ but the question arises, whether by virtue of the tax sale and the auditor’s deed, J. W. Clark was divested of all interest in the land upon his failure to redeem his separate interest from his co-tenant within two years. In our view th,e relations existing between tenants in common, whether in possession of the property or entitled to an estate in remainder, is of a nature to preclude such a result. Just dealing and the confidence necessarily reposed in each other would suggest that owners in com*464mon of real estate should consult for the mutual benefit. While one should not act intentionally to the detriment of the other, good faith should withhold him from all actions in reference to the common property that would work exclusively to his own advantage. ’ ’

The opinion then quotes approvingly the following language from *Tisdale*v. *Tisdale,*2d Snead 599:

> ‘ ‘ Tenants in common by descent are placed in confidential relations to each other by operation of law as to the joint property, and the same duties are imposed as if a joint trust were created by contract between them, or the act of a third party. Being associated in interest as tenants in common by descent an. implied obligation exists to sustain the common interest. This reciprocal obligation will be vindicated and enforced in a court of equity as a trust. These relations of trust and confidence bind all to put forth their best exertion and to embrace every opportunity to protect and secure the common interest and forbid the assumption of a hostile attitude by either.”

Our attention is called to the case of *Jinkiaway*v. *Ford,*decided by the Supreme Court of Kansas, L. R. A. 1915-E, 343, and it is urged that that case sustains the plaintiff’s position. We do not think so. In that case the title to the property was acquired by a remainderman who was not in possession and was under no obligation to pay the taxes, but that is quite a different proposition from the one we have before us. Mrs. Appleby was a tenant in common; was under personal obligations to pay her share of the taxes; and under legal obligation to pay the taxes for her ward.

To allow her under such circumstances to acquire title-to the common property would be to allow her by her own wrong to obtain an advantage over her co-tenants which the law will not permit.

Judgment of the lower court affirmed.

Pollock, J. and Farr, J., concur.