Shay v. McNamara
Before: Department, Ross
Synopsis
Tax Title—ATroRNEr-ix-FAOT — Praud. — S. having been furnished with money by J. to pay the taxes on J.’s homestead, failed to do so, and in consequence the land was sold for taxes to another, who afterward, by the procurement of S., and for his benefit, assigned the certificate to M.; and M., having received the tax deed, conveyed the land for the benefit of S., and by his direction, to S.’s wife. Afterward, S. holding a power of' attorney from J. to sell and convey the lot, executed a deed of conveyance of it, in fee to M., in the name of J., but without consideration, and for his own benefit. Hold, in an action by the wife of S. against the wife of J. and her tenant, that both deeds were fraudulent and void, and that the plaintiff derived no title under them.
Estoppel—Former Judgment — Privy—Definition.—A judgment is an estoppel only as to parties and privies; and those only are privies whose interest in the subject-matter of the suit originated subsequently to its commencement.
Id.—Id.—Trustee and Cestui que Trust.—As a general rule, trustees and cestuis que trustent are regarded as so independent that proceedings against one do not affect the other.
Id.—Id.—Relation.—The doctrine of relation is a fiction of law adopted by the courts solely for the purposes of justice.
Id.—Id.—Id.—Privy—Resulting Trust.—Accordingly, where one K. had purchased the homestead of defendant and her husband at a foreclosure sale at their request, and received a certificate of sale: Meld, that a judgment recovered against K. by the plaintiff’s grantor, in an action to quiet title, did not bind the defendant—whether the money paid by K. at the foreclosure sale was paid on his own account, or advanced as a loan to the mortgagors; that if the former was the case, the defendant and her husband derived no title or interest from K., and consequently were not his privies; that if the latter was the case, a trust resulted in their favor, but that they were not bound by the judgment against their trustee; and held, farther, that the doctrine of relation could not be resorted to for the purpose of establishing the title of IC. as of the date of the foreclosure sale, and of thus holding the defendants bound by the judgment against him.
Department No. 1, Ross, J.: Thomas C. and J ohanna J ohnson were married October 24th, 1858. On the 10th of January, 1866, the lot of land in con[172]troversy was conveyed to Thomas—the consideration therefor being paid out of their common property. On the next day Johnson and wife united in the execution of a mortgage on the lot to the California Building and Loan Society, to secure the payment of a certain sum of money. The money not having been paid, an action was afterward commenced in the Twelfth District Court to foreclose the mortgage, to which action Johnson and wife were made parties defendant; and such proceedings were had in that action, that- on the 22nd of March, 1872, a decree of foreclosure, in the usual form, was duly entered. Under this decree the lot in question was sold by the Sheriff on May 17th, 1872, to one Michael J. Kelly, who made the purchase at the verbal request of, and for, Johnson and wife. The purchase-money was advanced by Kelly out of his own funds at the request of, and for, Johnson and wife, and the money so advanced is still due and owing to him from them. On the day of sale the Sheriff, at the request of Michael, executed to his brother, Martin Kelly, a certificate of purchase for the lot. August 17th, 1867, Johnson and wife declared a homestead upon the premises.
In 1870, and before the taxes for the fiscal year 1870-71 became delinquent, Thomas C. Johnson, “ furnished ” to one Bartholomew J. Shay, the husband of the plaintiff, sufficient money to pay the taxes on the lot for that fiscal year, and Bartholomew undertook and promised to pay the taxes. He, however, failed to do so, and in consequence of such default the taxes became delinquent; and on the 3rd day of January, 1871, the lot was sold by the Tax Collector, for taxes, to one Murdock, who received the tax certificate therefor. On the 18th of May, 1872, Murdock assigned the tax certificate to one Charles H. Morgans, who on the same day, (the time for redemption having expired) received a deed for the lot from the Tax Collector. The consideration for the assignment of the tax certificate by Murdock to Morgans was paid by Bartholomew J. Shay, and the assignment of the certificate, as also the tax deed, was made to Morgans by the procurement and for the benefit of Bartholomew. On the 2‘2nd of May, 1872, Morgans, at the request of Bartholomew J. Shay, and without [173]
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