#### Frentz vs. Klotsch.

Tax deed. (1) *Recital as to place of sale.*(2) *Presumption from recital that grantee held the tm certificate as*“ *assignee of the*treasurer,” *etc.*(2) *Power of county to purchase at tax sale, and assign certificate.*

TENANTS in Common. (3, 4) *When one tenant may claim under a tax deed as against his co-tenant.*

1. A tax deed under ch. *2%*Laws of 1859, which states that the land was sold at a public auction at the county seat of the proper county (naming both), is not void because it does not further define the *place*of sale (as “ at the court house,” if that was the fact.)

2. Where the tax deed recites that the grantee held the tax certificate as “ assignee of the treasurer ” of said county, it must be presumed that the treasurer bid off the land for the county, as he was authorized to do.

3. Where one of two tenants in common stands in such confidential relations in regard to the other’s interest, that it would be inequitable to permit him to acquire a title solely for his own benefit, and expel his co-tenant, he will be treated as a trustee as to his co-tenant’s interest.

4. Where tenants in common derive title under different conveyances, or through different acts of the parties or of the law, and have not entered into any engagement or understanding with each other in regard to the common property, and neither is in .actual possession, *qitmre,*whether one may not acquire title by a tax deed’as against the other.

*313APPEAL from tbe Circuit Court for *Winnebago*County.

Ejectment, commenced in 1870, for tbe undivided balf of a lot in tbe city of Osbkosb. Plaintiff showed title in fee to tbe lot in A. E. David and Henry A. Callup, as tenants in common, and a conveyance to bimself from David of an undivided balf thereof. Defendant put in evidence, (1.) A tax deed dated May 15, 1866, from tbe state and county to S. B. and J. A. Paige, assignees of tbe ■ treasurer of said county, upon tbe sale of 1863, for taxes due upon tbe whole lot for 1862. (2.) A warranty deed from tbe Paiges to defendant. As rebutting evidence, plaintiff introduced a succession of conveyances, in terms, of tbe whole lot, from said Henry A. Callup to Mears, from Mears to Eollins, and from Eollins to said S. B. and J. A. Paige. Mears, as a witness for plaintiff, was asked: “ At tbe time you convey ed to Eollins, who was tbe owner of tbe tax certificate upon which this tax deed was issued?” Objection overruled. Answer: “Well, I suppose I was.” He then testified, in substance, that be gave it to Eollins, and that, a good while before this, be bad bought it of one E. L. Eunals; and upon cross-examination be testified, be thought (but could not be positive) that be gave, at tbe time,, two or three tax certificates to Eollins ; and that be was pretty positive that tbe one for tbe sale of 1863 was among them; that be could not tell what tbe amounts or dates of tbe others were, that bis attention bad only been called to tbe matter within balf an hour, and that be bad never thought anything about tbe matter before. This was all tbe material testimony. Tbe court charged tbe jury to find a verdict for tbe plaintiff, in tbe usual form in ejectment. Defendant moved for a new trial, on tbe ground that tbe court admitted irrelevant testimony, and erred in its charge. Motion denied; and judgment upon tbe verdict; from which defendant appealed.

*FeTker &*Weisb'od, for appellant:

1. Tbe tax deed is good, under tbe repeated adjudications of this court It recites that tbe Paiges are tbe assignees of tbe *314treasurer-; that tbe treasurer was purchaser (21 Wis., 173; id., 351; id., 530; 22 id., 430), and all other matters, material and immaterial, required by law. General Laws of 1859, ch. 22, sec. 50. The objection that the deed does not recite at what public place the lands were sold, is not well taken. Sec. 2 of ch. 22, Gen. Laws of 1859, requires the treasurer, in his notice of sale, to specify some public place, at the seat of justice, etc.; but it is not necessary to set it out in the deed; and the form of the deed prescribed by statute plainly shows it was not intended to be set out. Sec. 50, ch. 22, Gen. Laws of 1859. Compare with sec. 86, ch. 15, R. S., 1849, and sec. 116, ch. 18, R. S. 1858; ch. 503, Laws of 1852; ch. 66, Laws of 1854; *Falhner-v.*Dorman, 7 Wis., 388; 23 Wis., 613. The deed was protected by the statute of limitations. Sec. 5, ch. 138, Gen. Laws of 1861. 2. By the conveyances in evidence, Mears became the owner of Gallup’s undivided one-half. As the title or interest of Mears did not accrue under the same instrument as that of David, and as it was not shown or claimed that there was any obligation, engagement or agreement between Mears and David relative to the payment of taxes, or purchase of outstanding titles, Mears had a right to fortify his title to the whole by purchase of the certificate, and obtaining a tax deed. In the principal case, the doctrine that one tenant in common will not be allowed to purchase in an outstanding title against his co-tenant, is limited to this state of facts, viz: when the tenants hold under the same instrument. *Van Horne v.*Fonda, 5 Johns. Ch., 388,'407; and this doctrine has not been carried further in the courts. Leading Cases in Eq., 96; *Matthews v.*Bliss, 22 Pick., 48; 21 Wis., 331. 3. The defendant is a *bona fide*purchaser. No attempt was made to show that he had any knowledge that Mears was the owner of the certificate. Unless he had notice, the acts of Mears would not affect him. 23 Wis., 292, 294. 4. The question of fact, whether Mears was ever the owner of the tax certificate, should have been submitted to the pry-

*315
      *Gahe JBouclc,*for respondent:

1. Tbe ownership of Mears, as a tenant in common with respondent’s grantors, operated as payment or cancellation of tbe tax certificate. Tbe courts will not even permit in sucb cases tbe buying -of outstanding titles, etc. *Van Horne v. Fonda,*5 Jobn. Ch.,-406. This question is virtually disposed of in *Wright v. Sperry,*21 Wis., 331. See *Williams v. Gray,*3 Greenl., 297; *Balter v.*Whiting, 3 Sum., 476; 3 Sbep., 455; *Oris-wel v. Altemus,*7 Watts, 566; 1 Watts & S., 488. 2. Tbe court could not leave tbe question of fact as to Mears being tbe owner of tbe tax certificate, etc., to tbe jury. There was no-conflicting evidence as to that fact. Besides, it is too late to-raise that point in this court, under a general exception. If the-appellant wished tbe jury to pass upon that fact, be should have, so specifically requested on tbe trial. *Winchell v. Hides,*18 N. Y., 558; *Hunt v. Maybee,*7 id., 266; *Plumb v. O. M A Co.,*18 id., 392 ; *Grasera¡ Steelwagen,*25 id., 316. 3. This tax deed is void upon its face. (1) Tbe sale purports- to have been made “ at public auction,, at Oshkosh, in tbe county of Winnebago.” Tbe law requires tbe officer to sell tbe land 11 at public auction, at some public place, naming tbe same, at tbe seat of justice of tbe county;” and further provides : *“*and if in any county no seat of justice shall be established, then at sucb public place therein as be shall select.” Sec. 2, cb. 22, laws of 1859. Tbe form of deed leaves a blank for tbe place of sale. Tbe court will take judicial notice that there- is a *city*of Oshkosh, and also a *town*of Oshkosh. See page 79, R. S. 1858. To make this deed a valid one, two facts must appear as- to to tbe place of sale, viz: first, that it took place at tbe “ seat of justice;” second, “ at some pubbe place” at tbe seat of justice... Tbe law is very particular, by providing that tbe treasurer, in bis notice, shall name sucb pubbe place, and tbe blank left in the deed should be so filled as to show that tbe sale took place in compliance therewith. Blackwell on Tax Titles, 322. Counsel distinguished tbe case of *Huey v. Van Wie,*23 Wis.,. 613. (2), Tbe *316treasurer bas no authority to purchase or own county tax certificates, but, on the contrary, is prohibited by law; therefore such proceedings are void. *Knox v.*Peterson, 21 Wis., 247. *Woodmanv. H. S. Clapp,*21 Wis., 350, ismot an analogous case. In *Stridde v.*Saroni, 21 Wis., 173, this point was made in the briefs, but the court did not pass upon it.

Cole, J.

In this case the court directed the jury to find for the plaintiff, doubtless upon the the theory that the tax deed was void as against the plaintiff. In support of this ruling of the court below, it is insisted that the tax deed was void upon its face on account of the. omission to state the *place*where the sale took place. The deed récites, among other things, that the lot was sold by the treasurer of the county “ at public auction, at Oshkosh, in the county of Winnebago, on,” etc. It is claimed that the law requires the deed further to recite that the sale was “ at some public place,” as, for example, at the “ court house ” in the city of Oshkosh; or, if not at the court house, that it should show that the sale was “ at some public place,” stating where it was; and that, unless the deed contains such a recital, it is void on its face.

The form of the tax deed is prescribed by chap. 22, Laws of 1859, and it is certainly far from being clear that the legislature intended this degree of particularity. At all events, the form given does not recite that the sale was “ at some public place,” or at “ the court house.” Section 50. Nor do we think that it is essential to the validity of the deed that it should contain such a recital. For obvious reasons, the statute requires that the notice published by the county treasurer should state that the delinquent land will “ be sold by him at public auction at some public place, naming the same, at the seat of justice of the county, that he may select,” etc. Section 2. This, evidently, is for the purpose of informing the public and parties in interest where the sale will take place, so that they may attend if so disposed. But after the sale, when the officer comes to execute *317tbe conveyance, we cannot see tbat it would subserve any useful purpose for tbe deed to recite tbat tbe lands were sold “at tbe seat of justice,” or at some other designated “ public place.” Tbe presumption is tbat it was so sold. Of course, if we could say tbe legislature intended tbat tbe deed should contain such a recital, it would then be material, and tbe deed would be fatally defective without it. But we are unable to so bold from tbe form given in tbe statute.

It appears from tbe tax deed tbat tbe grantees therein held tbe tax certificate as *“*assignees of tbe treasurer ” of tbe county. It is said tbat tbe treasurer bad no authority to purchase or own county tax certificates. We suppose tbe land was bid off by tbe treasurer for tbe county, in this instance, for tbe want of other purchasers. Tbe county has authority to purchase in such a case. Section 9, chap. 22, Laws of 1859.

Another objection taken to tbe validity of tbe tax deed is, tbat it appears from tbe evidence tbat tbe grantor of tbe plaintiff and one Mears owned tbe lot as tenants in common; tbat while they so owned it, Mears became tbe owner of tbe tax certificate upon which tbe tax deed was issued. Tbe purchase of tbe tax certificate by Mears, it is claimed, must be regarded as a redemption of tbe land, and no tax deed could afterwards be issued upon tbe certificate, for tbe reason tbat one tenant in common is not permitted to purchase for bis exclusive benefit an outstanding title with a view to become himself tbe sole owner of tbe property.

Without entering into any lengthy discussion of this question at tbe present time, we will say tbat we are not prepared to decide upon tbe facts disclosed, tbat Mears could not under any possible circumstances take a tax deed, even as against bis co-tenant. It appears in evidence tbat be and bis co-tenant, David, derived title to .the lot under different conveyances, and tbat tbe premises were unoccupied by any one until tbe defendant took possession on tbe 7th of August, 1869. Now tbe doctrine tbat one tenant in common will not be allowed to purchase in *318an outstanding title, and avail bimself of tbe benefit of sucb title as against bis co-tenant, is limited and qualified b j some of tbe authorities. Tbe rale cannot be said to be one of universal application, but depends somewhat upon tbe facts of tbe particular case. Tenants in common are bound to deal -fairly with each other, and when they stand in sucb confidential relations in regard to one another’s interest, that it would be inequitable to permit one to acquire a title solely for bis own benefit, and expel bis co-tenant, then be will be treated as a trustee for tbe share of bis co-tenant. But it is suggested by some of tbe authorities that tenants in common are probably subject to this mutual obligation to preserve tbe estate for each other only when their interests accrue under tbe same instrument, or act of tbe parties or of tbe law, or where they have entered into some engagement or understanding with one another; for, it is said, persons acquiring unconnected interests in tbe same subject by distinct purchases, though it may be under tbe same title, are probably not bound to any greater protection of one another’s interests, than would be required between strangers. Leading Cases in Equity, note to *Keech v.*Sandford, p. 96; *Roberts v.*Thorn, 25 Texas, 728; *Brittin v. Handy,*20 Ark., 381. See also *Wright v.*Sperry, 21 Wis., 331-337. Tbe evidence before us does not disclose whether indeed there were any peculiar relations of trust and confidence between David and Hears, which would render it inconsistent with tbe utmost good faith and duty on tbe part of the latter to acquire a tax title upon tbe entire lot. If nothing of tbe land is shown, it may then be a serious question whether Mears could not take a tax deed upon the certificate, and hold it for his own benefit, the same as though he were a stranger to the title. The parties will have an opportunity of going into these matters on another trial, if they wish to; and it is probably not desirable that we discuss the subject farther. There were questions of fact in the case which should have been left to the jury.

*319
      *By the*Court.— Tbe judgment of tbe circuit court is reversed, and a new trial ordered.