
    Charles B. Gilmore et al., Resp’ts, v. A. Augustus Healy, Impleaded with Others, App’lt.
    
      (Supreme Court, General Term, Second Department,
    
      Filed, June 25, 1888.)
    
    1. Tenants in common—Purchase of outstanding incumbrance by one WILL BE FOR BENEFIT OF ALL.
    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.
    2. Same—Purchase at tax sale by co-tenant for benefit of tenants IN COMMON
    One G. died leaving a will by which he gave his widow and children, the right to occupy the land in question during her widowhood. But those who occupied the property were by the terms of the will bound to pay the taxes, etc. The remainder was given to the seven children of G. The widow occupied these lands until her death in 1880, but at that time there were six years’ taxes, etc., unpaid. Theophilus, one of the sons of G., continued to occupy them exclusively until the spring of 1885. But in 1882 he conveyed his interest in the premises to three trustees, of whom the defendant Healy was one. The deed authorized the trustee to take possession of the land and to collect the rents, and to sell the lands and invest the proceeds. The beneficiaries were: 1st, Theophilus’ wife; 2d. himself, and 3d, the trustees were to convey the property after the death of both of these to the appointee of Theophilus, etc. Such being the state of the title, the city of Brooklyn sold the land for unpaid taxes, and said Healy bought the same in his own name and a deed was delivered to him. Held, that title never vested in Healy as against his co partners, as against his co-owners. That it was a purchase for them, not against them. That he would be paid back his money on equitable principles.
    Appeal by the defendant A. Augustus Healy, from those parts of the interlocutory judgment made in this action at the Kings county special term, as adjudged him to be a. tenant in common with the plaintiff etc. Also a motion, for a new trial under Code Civil Procedure, § 1001.
    This action was brought to partition certain lots: The title of the plaintiffs thereto and of Theophilus Gilman was derived from the codicil to the will of Nathaniel Gilman.
    The defendant A. Augustus Healy’s title was through two deeds, the first from Theophilus Gilman and Mary B. his wife, dated June 1, 1882, and the second from Matthias W. Cole, Registrar of arrears of the city of Brooklyn.
    The codicil gave to Theophilus, as one of the children of Joanna B. Gilman, a right of occupancy during the life of the mother to October, 1880, subject to the obligations to' pay the taxes and asessment and to keep the premises in repair.
    On the 1st day of June 1882, when A. Augustus Healy derived title from Theophilus Gilman, the taxes and water rates respectively for the years 1876, 1877, 1878, 1879, 1880» and 1881 were unpaid.
    The deed of June 1, 1882 which was accepted by A. Augustus Healy, contained the following provision.
    That.the said patry of the first part have granted * * * unto the said parties of the second part, and to the survivors and survivor of them, there successors and assigns forever, all the right, title and interest of the said parties of the first part, or either of them, of, in and to any real estate situated in * * * or in the city of Brooklyn, county of Kings and state of New York, * * * together with all and singular the tenements, hereditaments and appurtenances thereto belonging or in anywise appertaining, and the reversion and reversions, remainder and remainders, rents, issues and profits thereof. “ This property is to be held in trust for five designated purposes. The first is ” to enter into and take possession, * * * to take all necessary proceedings to obtain and maintain the possession thereof; to collect all the rents, incomes, increase, issues and profits thereof, and pay all necessary and proper expenses thereon. * * * To make and consent to partitions of any property held in common with other persons, and to execute and receive deeds to effect such partition; to sell, convey, mortgage and lease all or any part of the property at the time composing the true estate; and to invest the proceeds thereof in such other property, real or personal, as they shall see fit. * * * On the death of both grantors, “to assign, transfer and convey the trust property then held by said parties of the second part, the survivors or survivor of them, or their successors, as thé said Theophilus shall, by will, appoint.” The fifth trust directs to whom the said trust property shall be conveyed in that contingency in default of direction by Theophilus. The words “the said trust property,” in the fifth trust, refer to the same trust property as Theophilus was empowered to direct by the disposition by will, and that is defined in the fourth trust to be the trust property then held.
    
    
      Jay, Candler & Brush, for app’lts; James H. Hudson, for resp’t Gilman; Raphael J. Moses, for resp’t Garczynski.
   Barnard, P. J.

The principal question in this case is as to the validity of a deed from the registrar 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 Gilmore, 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 Gilmore. 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 Gilmore. Prior to the widow’s death, six years’ taxes and water rates were supposed to remain unpaid. Theophilus Gilmore 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 Gilmore and wife conveyed his 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 trustee to take possession of the land and to collect the rents and to sell the lands and invest the proceeds. The beneficia'ries were, first, Theophilus Gilmore’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 Gilmore, and if there was no appointee, then to the children of Theophilus Gilmore.

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 Gilmore and wife, but, as against the other owners, he claims the deed to be good.

It seems clear that the trustees of Theophilus Gilmore 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. Lestey (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 trustees of paying all necessary and proper expense upon the land. Theophilus Gilmore, 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 cannót 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 Horne v. Fonda, 5 J. Chy., 389; Burhans v. Van Zandt, 7 N. Y. (3 Seld.), 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-partners, 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 and Dykman, JJ., concur.  