
    Gilman et al. v. Healy et al.
    
    
      (Supreme Court, General Term, Second Department.
    
    June 25, 1888.)
    Trusts—Sale of Trust Property for Taxes—Purchase by Trustee.
    A will gave to the testator’s widow and children the right to occupy certain premises during the widowhood of the first named; those occupying being required to pay the taxes, and keep the premises in repair. The remainder was given to certain of the children, among whom was one of those who occupied during the life of the widow, and who afterwards was for a time the sole occupant, during which time he conveyed the property to three trustees under an active trust for the benefit of the grantor, his wife, and children. Held, that a purchase of the property by one of the trustees at a sale for unpaid taxes, a portion of which had accrued during the life-time of the widow, vests no title in him as against the other owners in common.1
    1One of several tenants in common cannot acquire a tax title to the prejudice of his co-tenants, Holterhofi! v. Mead, (Minn.) 29 N. W. Rep. 675, and note; his purchase of such title will be treated as a payment of the tax for which, the property was sold, or a redemption from the sale, Hall v. Westcott, (R. I.) 5 Atl. Rep. 629; Lomax v. Gindell, (HI.) 7 N. E. Rep. 483; and such payment or redemption will inure to the benefit of all his co-tenants, Id.; Id.; Holterhofi v. Mead, supra; Minter v. Durham, (Or.) 11 Pac. Rep. 231; Hardy v. Gregg, (Miss.) 2 South. Rep. 358, and note; and the, purchaser be entitled to reimbursement, Hall v. Westcott, supra; Lomax v. Gindell, supra; the amount of which becomes a lien or charge upon the interests of such co-tenants, Lomax v. Gindell, supra. Respecting the rights of tenants in common inter se, in general, see Earnshaw v. Myers, ante, 901, and case cited in note.
    Appeal from special term, Bangs county; Edgar M. Cullen, Justice.
    Partition by Charles B. Gilman and Caroline R. Garezynski against George F. Gilman and others. Defendant A. Augustus Healy appéals from a portion of the judgment decreeing a partition.
    
      
      Jay, Gaudier & Brush, for appellant. Raphael J. Moses, Jr., and James A. Hudson, for respondents.
   Barnard, P. J.

The principal question in this case is as to the validity of a deed from the register of arrears of the city of Brooklyn to A. Augustus Healy covering the lands sought to be sold in partition. The evidence shows that the land originally belonged to one ¡Nathaniel Gilman, who died in 1859, leaving a will and codicil by which he gave to his wife and children a right of occupancy in the premises during her widowhood. The widow and certain of the children availed themselves of this right to occupy and live on the premises from testator’s death until the death of the widow, in 1880. One of these children was Theophilus Gilman. Those who occupied were, by the terms of the will, bound to pay the taxes, and keep the premises in repair. The remainder in these lands was given to seven children and their representatives. Among these children entitled to the remainder was Theophilus Gilman. Prior to the widow’s death, six years’ taxes and water-rates were supposed to remain unpaid. Theophilus Gilman occupied the premises exclusively from the spring of 1883 to the spring of 1885. The rental value of the property is proven to be $1,000 a year. Theophilus Gilman and wife conveyed their interest in the premises, in June, 1882, to three trustees, of whom the defendant A. Augustus Healy was one. The trust was an active trust. The deed authorized the trustees to take possession of the lands, and to correct the rents, and to sell the lands, and invest the proceeds. The beneficiaries were,—First, Theophilus Gilman’s wife; second, Theophilus himself; third, the trustees were to convey the property, after the death of both of these, to the appointee of Theophilus Gilman, apd if there was no appointee, then to the children of Theophilus Gilman. Such being the state of the title, the city of Brooklyn sold the land for unpaid taxes, and A. Augustus Healy bought the same in his own name. He admits that this purchase must be held subject to the rights of Theophilus Gilman and wife, but as against the other owners he claims the deed to be good. It seems clear that the trustees of Theophilus Gilman became, by the deed of trust, tenants in common in the lands with the other owners. The case is not one which is embraced within the principle held in Stevenson v. Lesley, 70 N. Y. 512. There a remainder was devised which was outside of the trust entirely. In this case it is clear that the entire title passed, as between the parties to the trust, and thereby the trustees became the owners of the land, and were bound by all the obligations under which the land was placed by the will. The trust deed in terms imposed the duty upon the trustee of paying all necessary and proper expense upon the land. Theophilus Gilman, at the time of the trust deed, was bound to pay his share of these taxes, under the special direction in the will, and as one of the tenants in common. One tenant in common cannot purchase an outstanding title or incumbrance on the joint estate for his exclusive benefit, and use it against his co-tenants. The purchase is for all, and the purchaser is to be reimbursed ratably. Van Home v. Fonda, 5 Johns. Ch. 389; Burhans v. Van Zandt, 7 N. Y. 523. If this conclusion be right, the right to redeem within a year has no application. The title never vested in the purchaser as against his co-owners. It was a purchase for them, and not against them. The decree protects the holder of the tax title. He will be paid back his money, upon equitable principles. The judgment should be affirmed, with costs.

Pratt, J., concurs.  