
    Nye, Benner & Co. v. Elizabeth F. Denny.
    The owner of land that had been sold for taxes requested '.the purchaser at? the tax sale, under an arrangement between the parties, twtransfer the certificate of sale to a third person, on the payment by him of the money advanced for the taxes, which was done, and a deed was made to such third' person pursuant to such sale; but, without the knowledge of the parties, the- ' sale was defective and the deed was void. Held, that in an action by the party to whom such deed was made against such owner, to recover the possession of'the land, such owner is not estopped from insisting on the-defect in the sale, and thus avoiding the deed, where he was wholly ignorant of such defect, and there exists no other ground on which to raise an . estoppel but his mere neglect to be informed of the defect in the sale.
    Error to the court of common pleas of Yinton county. Reserved-in the district court.
    Elizabeth F. Denny brought an action in the court of common-pleas of Vinton county, against Nye, Benner & Co. (otherwise-called the Eagle Furnace Company), to recover the possession of section 32, township 9, range 16, within the Ohio Company’s purchase, containing six hundred and forty acres, and for the use of the land. On the trial, it was admitted:
    1. That General Arthur St. Clair, deceased, was originally the-owner of the premises in dispute, being part of the land drawn by General St. Clair, in the division of the Ohio Company’s purchase.
    2. That General James O’Harra was also the owner of another share of land in said purpose.
    3. That both were non-residents of Ohio, and that all the parties-claim title to the land in controversy through General St. Clair., 247] *4. That the defendants in the action (the furnace company), in 1854, received a legal conveyance therefor from the heirs-of St. Clair, and went into possession in 1856, and have ever since-continued in such possession under said conveyance.
    5. That the premises in dispute were not in the actual possession of anybody until such possession was taken by the furnace-company ; the same being until then uninclosed, unimproved wild' lands.
    6. That the books and records of said company’s purchase were-kept at Marietta, Ohio.
    General O’Harra lived in Pittsburg, and General St. Clair in "Westmoreland county, Pennsylvania. In 1811, General St. Clair was insolvent, and largely indebted to General O’Harra. St. Clair-died August 31, 1818. O’Harra made his will, through which Mrs. Denny claims title, September 15, 1819, and died the following December.
    Mrs. Denny claimed that General O’Harra, her father, bought the land of General St. Clair, paid for it, and that, upon the facts, of the case, it should be presumed that he received a conveyance therefor. She also claimed that General St. Clair, and all claiming' under him, are estopped from denying the title of O’Harra, and those claiming under him, upon a deed of the lands made under a sale of the land for taxes.
    The plaintiff below g.ave in evidence the following letter from. General St. Clair to Benjamin Ives Gillman, dated Pittsburg,. June 22,1811:
    “ Dear Sir : Tour very obliging favor of the 26th of last month-was put into my hands yesterday by a gentleman I accidentally met with on the road, otherwise it would have been acknowledged before this time. The favor you have done me, and which it announces you are still ready to do, is such as to lay me under the-greatest obligations. I had heard of the sale, but could not learn who was the purchaser; and twice I wrote to you, requesting you to take the trouble to make inquiry and give me information, but the letters must have miscarried, as I am sure, bad either of them got to your hands, my request would have been complied with.
    “ I now request that the property may he transferred to General *James O’Harra, of this place, and that you will be pleased [. 48' to send him a certificate that the transfer has been made upon the books, or give, should he send a special messenger, the certificate to-that person, and draw upon him for the money you are in advance,.' which, if I had known it, should not have stood over so long.”
    
      This letter was inclosed by O’Harra to Gillman in the following letter, dated Pittsburg, September 10, 1811.
    “ Dear Sir : Inclosed you will receive General A. St. Clair’s, requesting your transfer of his Ohio Company land. This letter was mislaid, or should have been sent before. You will please transmit to me the conveyance, and your account of expenses or disbursements, which will be paid to your order on demand.”
    November 7,1811, Gillman inclosed to O’Harra a tax deed of the land, with a statement of the amount due from St. Clair, being nearly eighty-seven dollars, which was paid by O’Harra.
    Under date of February 24,1812, St. Clair wrote from 'Washington, to O’Harra, the following letter :
    “ Dear Sir : You have often assured me that you wished nothing from my property that fell into your hands but the payment of what I was indebted to you; and the last time I was in Pittsburg you were pleased to observe to mo that the property had produced you nothing, and you would be glad to have your money in lieu of it. I have now, sir, found a friend who will advance the sum necessary; that is, as far as ten thousand dollars. Though that .sum may not entirely cover the whole debt, it will come so near it that the balance, if any, could, I suppose, be easily accommodated; and you releasing the property, on receiving it, would release me from the greatest misery, and, at the same time, lay me UDder an •everlasting obligation to you, without any injury to yourself; for I have no doubt that you could turn the money to much better .•account than the furnace and lands will ever produce. I beg the favor of an early answer, as soon as convenient — if possible, by the "249] return of the mail; and if the proposal *meets with your approbation I will make the necessary arrangements with him, that the business may be completed on my return, which will not be ■delayed.”
    Previous to 1811, St. Clair had been largely indebted to O’Harra, upon which judgments had been obtained, and, in part, satisfied by the sale of large tracts of land and a furnace property belonging to 'St. Clair in Pennsylvania.
    The arrangement alluded to in the foregoing letter was never perfected.
    O’Harra and those claiming under him paid the taxes on the land ;in controversy from 1811 to 1854.
    The court charged the jury that “ if they found from the evidence In the ease that said O’Harra had bought the land from St. Clair :and paid him for it; and that he afterward exercised acts of ownership over it, such as paying the taxes, etc.; and, in addition to that, there was a silence of St. Clair and his heirs for the period of about forty years; and if they found facts that would raise a strong equity in O’Harra and his heirs to the beneficial ownership of the land, that -then they had a right to presume a grant from St. Clair to O’Harra for the lands; that it made no difference as to the right of the jury to presume such grant upon such a stare of facts being proved, whether the evidence on the trial of this case tended to show that .•such a grant ever had or had not been made by St. Clair to O’Harra.”
    The court refused the following charge requested by the defendants below: “ That if they found that the defendants were innocent or bona fide purchasers of the disputed premises, without notice of any other title in the plaintiff than the said supposed tax deed do O’Harra, they must find for the defendants.”
    The court further charged that a recovery could not be had upon the collector’s tax deed, “because the taxes upon said premises and upon the other lands of St. Clair had been added together, and said premises sold at such tax sale for the taxes, etc., due upon all St. Clair’s Ohio Company’s purchase lands, as well as upon this 'tract.”
    The court further charged the jury: “That if the said St. Clair Rnew of the said objection to said tax sale, and so knowing *it, [250 induced O’Harra to advance the money due on account thereof— ■O’Harra being ignorant of such objection — and to take the deed to himself therefor, with the view to become the owner of such lands -through and by such tax deed, St. Clair and all claiming under him were estopped from insisting upon such objection to said deed; but If St. Clair was ignorant of such objection, and made such arrangement with O’Harra to advance such money and receive such conveyance, or if O’Harra was aware of such objection as well as St. j-Clair, no such estoppel would arise; that St. Clair had a right to ■suppose the collector had conformed to the law in his proceedings to sell said lands for taxes; and the fact that St. Clair, by his letter of June 22,1811. constituted Gillman, the purchaser at said tax sale, his agent to do the things specified in said letter, and that Gillman, in transacting the business, knew of the objection, while St. Clair was in fact ignorant of it, would not estop St. Clair or those claiming under him from objecting to the deed; for it then might well have' been that St. Clair’s ignorance of the errors in the tax sale-caused him to order or request G-illman to do what he directed him-to do by that letter; that the jury must further find such agreement or arrangements to have been made between St. Clair and O’Harra, and that if St. Clair was ignorant of such objection, toestop him would require the jury to find that such ignorance on his part existed from his gross neglect.”
    The defendants excepted to the charge as given, and to the refusal' to charge as requested by them.
    The jury returned a verdict for the plaintiff, and the defendantsfi'led their motion for a new trial, on the grounds that the court admitted improper evidence to be given by the plaintiff; that the-court erred in the charge given, and in refusing to charge as requested by defendants; and because the verdict was against the law and against the evidence.
    The motion was overruled, and judgment was rendered for the-plaintiff.
    The defendants filed a petition in error in the district court on-the grounds stated in their motion for a new trial.
    The district court reserved the case for decision in this court.
    
      *Alfred Yaple (with A. G. Brown), for plaintiffs in error:
    There is nothing in the claim of estoppel. All the acts done by O’Harra and his agents are referable to the tax deed. The acquiescence of St. Clair and his heirs is referable to the same thing;, for, being non-residents of Ohio, the law of Ohio as to these tax' proceedings and deed being void or valid is a fact to them, and' knowledge of it is not brought home to them. They must be held to have supposed the deed valid as a tax deed, because the presumption of law was that the officers did their duty according to law in the premises. See Buckingham et al. v. Smith & Dille, 10 Ohio, 288-299; McAfferty v. Conover’s Lessee, 7 Ohio St. 99; Dunbar v. Frederick, 2 Ball & Beatty, 217; Murray v. Palmer, 2 Sch. & Let. 486; Boyd v. Hawkins, 2 Dev. Eq. 215.
    
      Selden S. Cooke, for defendant in error:
    St. Clair and all persons claiming under him are — by reason of' the fact that O’Harra paid him the full value of the land, under an-agreement for a conveyance, and of St. Clair’s neglect to inform himself of the true state of his title, after learning of the tax sale,. when about to convey to O’Harra, and his constructive knowledge of the defect in the tax sale, or of the facts constituting such defect, .and the waiver by himself and his agent, Gillman, of the defect, on actual or constructive notice thereof, or of the facts aforesaid— estopped to deny the validity of the collector’s tax deed made to -O’Harra, pursuant to St. Clair’s request and authority. Chase’s Stat. 536; Storrs v. Barker, 6 Johns. Ch. 166; Wells v. Pierce, 7 Poster (N. H.), 503; 1 Parsons on Contr. 39, 74; Story on Agency, secs. 139, 140, 208, 452; Ish v. Crane, 8 Ohio St. 520, 541; Pickard v. Sears, 6 Ad. & Ell. 475; Erwin v. Lowry, 7 Howard U. S. 182; McAfferty v. Conover’s Lessee, 7 Ohio St. 105; Beardsley v. Foote, 14 Ohio St. 414; Dezell v. Odell, 3 Hill, 215; Knox v. Jenks, 7 Mass. 488; 1 Story’s Eq., sec. 387.
    Knowing well, as St. Clair knew, and as his heirs must afterward have known, that O’Harra and his heirs, in full faith and belief that they owned the share, were at the annual expense of paying the taxes and hiring an agent to protect *the lands, the [252 mouths of St. Clair and his heirs are shut to deny such ownership. To countenance a claim on the part of St. Clair’s heirs, under such circumstances, would be to sanction a clear fraud, or, at the least, gross negligence on the part of St. Clair himself, and his heirs after him. They stood by a long time, knowing O’Harra’s disbursements, and knowing their own rights, or having the means of knowing them, and made no objection.
   Day, C. J.

The action in the court below was for the recovery of a section of land. Both parties claim title under Gen. St. Clair. The plaintiff in the action, as devisee of Gen. O’Harra, claimed title from St. Clair under a presumptive grant,” and by a collector’s ■deed to O’Harra on a sale of the land for taxes. The defendants claimed title by deed from the heirs of St. Clair. They claim that the tax deed is void, and that the presumption of a grant is rebutted, because all the facts from which such a presumption can ¡arise are referable to the actual grant under the tax sale.

It is conceded that the tax deed is void, for irregularities in the sale under which it was made. But it is claimed that the defendants are estopped from insisting upon the invalidity of the deed.

The arrangement by which O’Harra obtained the deed was entered into with St. Clair after the defective sale for taxes was made, and before the deed was executed. On the question of the' estoppel, the court charged the jury:

“ That if St. Clair knew of the said objection to said tax sale, and-so knowing it, induced O’Harra to advance the money due on account thereof — O’Harra being ignorant of such objection — and to> take the deed to himself therefor, with the view to become the' owner of such lands through and by such tax deed, St. Clair and. all claiming under him were estopped from insisting upon such-objection to said deed ; but if St. Clair was ignorant of such objection, and made such arrangement with O’Harra to advance sucb money and receive such conveyance, or if O’Harra was aware of such objection as well as St. Clair, no such estoppel would arise;. . . . .' . that the jury must further find such agreement 253] *or arrangements to have been made between St. Clair and O’Harra; and that if St. Clair was ignorant of such objection, to estop Mm would require the jury to find that such ignorance on his-part existed from his gross neglect.”

. The clear implication of the last clause of the charge is that if St. Clair’s ignorance of the defects in the tax sale existed from his-gross neglect or want of slight diligence to be informed thereof, he would be estopped from insisting on the objection to the deed.

The jury might, then, fairly understand the charge, when taken together, to be that the estoppel claimed arises if St. Clair, by the exercise of slight diligence, might have known the defect in the tax sale, the same as it would had he known it in fact, and concealed it from O’Harra.

In the entire absence of proof of any diligence whatever on the-part of St. Clair, to be informed of the correctness of the proceedings in the tax sale, the jury, with this understanding of the law, might readily find that his ignorance “ existed from his gross neglect,” and that he would, therefore, be estopped from insisting upon the objection to the deed, whether he was ignorant of it or not,, when he made the arrangement with O’Harra.

This would be carrying the doctrine of estoppel in pais, as a muniment of title in real estate, to an extent not warranted by the authorities, nor by the principles upon which it is founded... The rule-adopted in the charge requires no vigilance on the part of O’Harra, as the purchaser of the estate, nor that the seller should do or say anything to deceive the buyer. “Without any duty resting upon St. Clair, more than upon O’Harra, to be informed about the validity of the tax sale, his failure to exercise some diligence to be informed about it, without requiring any diligence on the part of O’Harra, is, alone, made a fraud equivalent to the willful concealment of the fact if it had been known.

The same principle, applied to any case where knowledge is a material ingredient of fraud, would so modify the rule that a part}' will be held to know what he might know by the exercise of some' degree of diligence; and the question would *be, not whether [254 he knowingly mistakes or conceals a fact, but whether he would do' so if properly informed.

Under the charge in question, the jury were warranted in finding for the plaintiff below, although they found St. Clair entirely ignorant of any defect in the tax sale, and that he was actuated by the utmost good faith in the transaction, if they further found that he exercised no diligence to be correctly informed on the subject.

We see nothing in this case to take it out of the rule laid down in McAfferty v. Conover’s Lessee, 7 Ohio St. 99 : “ To work an estoppel in pais, and forfeit title, the acts and declarations of the owner must, in general, be willful; that is, with knowledge of his rights, or with intention to deceive the other party.”

Moreover, there does not appear to have been anything said by St. Clair that was not true, or anything done by him to mislead the other party. The defect in the tax sale was unknown to him, and OHarra was in no way deceived, in that respect, by him. The defect was a matter of public record, open and ascertainable to each of them equally. No special confidence, as to the validity of the tax sale, was reposed by OHarra in St. Clair. It was no more the duty of the one than the other to be vigilant to ascertain about the validity of the sale. If the transaction was a sale of real estate, it ,was as much the duty of the purchaser as of the seller, to beware of defects in the title. Their mutual ignorance of the invalidity of the tax sale no more affected the conscience of one than the other; and it maybe more unconscionable to enforce the invalid tax sale against one party, than it would be against the other to set it aside, and leave the parties to their rights, as they would then exist. That depends upon other matters not taken into the account in the part of the charge under consideration.

The charge, in the particular referred to, was, at least, calculated to mislead the jury, in a matter material to the case; and, upon the construction of which it was fairly susceptible, it was clearly erronoons. For this reason, the cause must bo reversed, and the cause remanded for another trial.

255] *As to the other questions raised in the case, we express no opinion, for the reason that, upon the re-trial of the case, they may come up in a form so far modified by the facts as to make their present determination of little utility to the parties.

Brinkerhoff, Scott, and White, JJ., concurred.

Welch, J., did not sit in the case.  