Without such notice the length of time intervening between the decree and the institution of the present suit would give him no better right than he previously possessed, and his holding possession would, under the authorities, be treated as in subordination to the title of the real owner. This is a well established rule. Jackson v. Bowen, 1 Wend. 341; Burhans v. Van Zandt, 7 Barb. 91; Ronan v. Meyer, 84 Ind. 390; Jeffery v. Hursh, 45 Mich. 59; Jackson v. Sternbergh, 1 Johns. Cas. 153; Doyle v. Mellen, 15 R.I. 523; Zeller's Lessee v. Eckert, 4 How. 289. We are of opinion that the decree below was clearly correct, and should be
The evidence in this case, if admissible, establishes as a fact that the defendant was entitled to reimburse himself in full out of the trust estate before satisfying the demand of the plaintiff. Mr. Henry Beard and Mr. Charles H. Armes, for appellant, cited: Hidden v. Jordan, 21 Cal. 92; Case v. Codding, 38 Cal. 191; Bayles v. Baxter, 22 Cal. 575; Millard v. Hathaway, 27 Cal. 118; Currey v. Allen, 34 Cal. 254; Jenkins v. Frink, 30 Cal. 586; Burhans v. Van Zandt, 7 N.Y. 523; Rothwell v. Dewees, 2 Black, 613; Flagg v. Mann, 2 Sumner, 486, 523; Kreutz v. Livingston, 15 Cal. 344; Gunter v. Jones, 9 Cal. 643; King v. Remington, Sup. Ct. Minnesota, 1886, not yet reported, and cases therein cited. Mr. Evans S. Pillsbury, for appellees, cited: Dutton v. Warschauer, 21 Cal. 609, 623; Kreutz v. Livingston, 15 Cal. 344; Grattan v. Wiggins, 23 Cal. 16; White v. Carpenter, 2 Paige, 217, 239; Cunningham v. Hawkins, 27 Cal. 603; Troll v. Carter, 15 W. Va. 567; Taylor v. McClain, 60 Cal. 651; Nat. Bk. v. Ins. Co., 104 U.S. 54; Taylor v. McClain, 64 Cal. 513; Knatchbull v. Hallett, L.R. 13 Ch. Div. 696; Bayles v. Baxter, 22 Cal. 575; Wright v. Ross, 36 Cal. 414; Millard v. Hathaway, 27 Cal. 119; Hoyt v. Martenso, 16 N.Y. 231; Roberts v. Ware, 40 Cal. 634; Twin Lick Oil Co. v. Marbury, 91 U.S. 587; Bostford v. Burr, 2 Johns. Ch. 405; Plymouth v. Hickman, 2 Vern. 167; Roe v. Popham, Doug. 251; Gibson v. Jeyes, 6 Ves. 266, 270, 280; Walker v. Walker, 2 Atk. 98; Lake v. La
"`By the execution and delivery of a deed of land the entire legal interest in the premises becomes vested in the grantee, and if the grantor continues in possession afterwards, his possession is not that of owner, but of a tenant of the grantee. He will be regarded as holding the premises in subserviency to his grantee, and nothing short of an explicit disclaimer of such a relation, and a notorious assertion of right in himself, will be sufficient to change the character of his possession, and render it adverse to the grantee.' — Burhans v. Van Zandt, 7 Barb. (N.Y.) 91 [(1849)]; Butler v. Phelps, 17 Wend. (N.Y.) 642 [(1836)]."
Respondent's other claim to ownership stands on his foreclosure judgment and referee's deed. As to the foreclosure of the tax lien, we think he must be held to have taken the referee's deed in trust for appellants. No decision has been found with precisely the same facts as ours, but to the facts of our case there is clearly applicable the settled rule of equity that one in possession of realty whose position is such that he owes some protective or similar duty to the owners of other interests, cannot purchase an outstanding interest and use it to exclude those other persons to whom he has a duty (as to the generality of that rule, see Burhans v. Van Zandt, 7 N.Y. 523, 526, 527, and, particularly, Rothwell v. Dewees, 2 Black [U.S.] 613, 614, 619; see elaborate note and numerous citations, 140 A.L.R. 294). Thus, purchase by a mortgagee in possession, of a tax lien, is regarded as payment of the taxes and a foreclosure of the lien is, in equity, a nullity ( Ten Eyck v. Craig, 62 N.Y. 406; Burchard v. Roberts, 70 Wis. 111; Shepard v. Vincent, 38 Wn. 493). Quite recently, in Van Duzer v. Anderson ( 306 N.Y. 707), we made a similar holding as to the purchase of an outstanding tax lien, by a tenant in common.
The defendant and his grantor were bound to know that McGillis had and could convey only an estate for her life. ( Acer v. Westcott, 46 N.Y. 384; Sweet v. Henry, 175 N.Y. 268.) Their possession, being in subordination to and in privity with the title of the remaindermen, did not become hostile even after the termination of the life estate in the absence of some positive act of disclaimer brought home to the latter. ( Zeller's Lessee v. Eckert, 45 U.S. [4 How.] 289; Jeffery v. Hursh, 45 Mich. 59; Doyle v. Mellen, 15 R.I. 523; Jackson v. Graham, 3 Caines, 188; Jackson v. Sternbergh, 1 Johns. Cas. 153; Jackson v. Scissam, 3 Johns. Rep. 499; Jackson v. Stiles, 1 Cowen, 575; Jackson v. Burton, 1 Wend. 341; Burhans v. Van Zandt, 7 N.Y. 523; Whiting v. Edmunds, 94 N.Y. 309; Bedlow v. New York Floating Dry Dock Co., 112 N.Y. 263.) The defendant's deed purported to convey only what was conveyed by the deed to his grantor.
Possession by a grantor, after he has deeded away the land, must be deemed to be in subordination to the legal title, and will not be presumed to be adverse without proof of ouster, or notice of the claim of title in hostility to the true owner, which would amount to an ouster. (Jackson v. Burton, 1 Wend. 341; Burhans v. Van Zandt, 7 Barb. 91; Schwallback v. Chicago etc. R'y Co ., 73 Wis. 137; 69 Wis. 292; 2 Am. St. Rep. 740; Jay v. Welchel , 78 Ga. 786; Evans v. Templeton, 69 Tex. 375; 5 Am. St. Rep. 71.) The alleged possession of plaintiff was not notice of adverse holding.
But even if there was ground for questioning the correctness of the positions last considered and the facts be assumed as claimed by the plaintiffs in reference to the possession of Walker, it does not necessarily follow that the city could not have acquired a title by an adverse possession. Some cases are relied upon by the appellants' counsel to sustain the doctrine contended for. ( Jackson v. Burton, 1 Wend. 341; Jackson v. Aldrich, 13 Johns. 106; Burhans v. Van Zandt, 7 Barb. 91; Wilklow v. Lane, 37 id. 244, 248; Zeller's Lessee v. Eckert, 4 How. [U.S.] 289. We do not deem it necessary to examine these cases in detail, as the facts differ in many essential particulars from the case at bar, and it is sufficient to say that they are distinguishable therefrom.
The judgment in the ejectment suit of Reynolds v. Lowry, was a conclusive bar in this suit as to all matters decided in that. (1 Green Ev. Secs. 189, 523; Bates v. Stanton, 1 Duer, 87; Burham v. Van Zandt , 7 N.Y. 523; Bennett v. Coachman, 48 Barb. 73; Coon v. Osgood, 15 Barb. 588; White v. Evans, 47 Barb. 179.) The patent to Reynolds was the elder patent, and must prevail, unless the holder of the junior patent shows a prior equitable right to the land.
itself considered, for Braley and Gallimore to buy up the Kealy judgment for the protection of the common plan, but the claim so acquired could not, on the principles of equitable dealing, be used by them to secure the whole of that to themselves which they had agreed to share with others, and on the faith of which agreement their associates had already acted. They were bound by the express contract to cooperate with the other parties in securing the objects for which the union was formed, and it is settled that if parties are interested together by mutual agreement, and a purchase is made agreeably thereto, neither party can exclude the other from what was intended for the common benefit; and any private benefit touching the common right which is secured by either party will turn him into a trustee for the benefit of both or all. ( Flagg v. Mann, 2 Sum. 490; Van Horne v. Fonda, 5 John. Ch. 406; Burhans v. Van Zandt, 7 N.Y. 523; Armour v. Alexander, 10 Paige, 572; Rupp v. Orr, 31 Penn. 517; Switzer v. Skiles, 3 Gil. 529; Rothwell v. Dewees, 2 Black. 618; Venable v. Beauchamp, 3 Dana, 321.) Complaint to enforce implied trust .
( Stevens v. Melcher, 152 N.Y. 551, 565.) Where a tenant in common in possession defaults in the payment of taxes, suffers the land to be sold for those taxes, and becomes the purchaser at the tax sale, he cannot hold the land for his exclusive benefit, but holds the title for the common benefit. (Burhans v. Van Zandt, 7 N.Y. 523.) The effect of a purchase at such a tax sale is that the taxes are paid, but the title is left exactly as it was before the tax sale.