
    Williams vs. Gray.
    Where two non-residents held in common an unsettled tract of land, which without their knowledge was sold for non-payment of the State taxes; and they after-wards made partition by mutual deeds of release and quitclaim, in common form; after which one of them, within the time of redemption paid the tax to the purchaser at the sheriff's sale, from whom he took a deed of release and quitclaim to himself alone, of the whole tract; — it was held that this payment and deed enured to the benefit of them both; — that the party paying had his remedy by action against the other for contribution; — and that he who had not paid, might still maintain a writ of entry against the other, for his part of the land.
    This was a writ of entry to recover possession of certain lands-in Etna; and came before the Court upon a case stated by the parties, as follows.
    
      
      Gen. Crosby, being, the proprietor of township No. 4, in the second range north of the Waldo patent, now called Etna, by his heed dated Dec. 15, 1810, mortgaged the south half of the-township to Mr. Gray. — and afterwards, Jan. 16,1812, mortgaged the remaining half to the Penobscot bank; which last mortgage was, prior to 1820, assigned to Mr. Gray and Mr. Williams, in the proportion of four fifths to Gray, and one fifth to Williams. Gen. Crosby, being unable to pay the mortgages, afterwards ■released his equity of redemption.
    
      January 10, 1820, the parties divided that portion which had been mortgaged to the bank, and which they held in common ; and Gray made to Williams a deed of release and quitclaim of the demanded premises, with covenants that they were free of all incumbrances by him made, and of warranty against the grantor and his heirs, and all persons claiming under them ; — and Williams made a sipiilar deed to Gray of the residue of the land.
    The State taxes upon the whole township for the years 1812 to 1818 inclusive, amounting to $41,09 being wholly unpaid, it was sold by the sheriff of the county January 4, 1819, under a warrant from the treasurer, pursuant to the statute, to Hill & McLaughlin, they being the highest bidders, for $61,10, being the amount of the taxes and charges of sale ; and a deed was made to the purchasers, conveying the township to them and their heirs, subject to the right of the proprietors to redeem the land, by payment ofthe money at any time within two years.
    
      March 13, 1820, an agent of Mr. Gray came to Hill & McLaughlin professedly to redeem the land ; and paid them the amount of their claim. Whereupon they executed a deed to Gray, prepared by the agent, by which they “ sold, released and quitclaimed” to him all the right, title, interest and claim which they had to the township by virtue of their deed from the sheriff. Under this deed the tenant now claimed to hold the land.
    
      Orr for the demandant, and Greenleaf for the tenant,
    submitted their arguments in writing, to the following effect.
    Arguments for the demandant.
    1. No title passed to the tenant in the demandant's land, by the deed of Hill & McLaughlin to him. The sheriff’s deed to them reserves a right of redemption to the proprietors of the land. This reservation is a substantive part of the deed, in its operation on the rights of the demandant. Of whom, by this reservation, was he to redeem his land ? Not of the assignee of Hill & McLaughlin, but of them personally, or their heirs. Otherwise, the owner of land might always be defeated of his right of redemption by a succession of assignments or releases, and thus be deprived of his land. The purchaser from the sheriff must therefore retain the capacity to release to the owner, till the time of redemption expires; and consequently none but the owner can redeem. It follows that by Hill & McLaughlin’s deed to the tenant, no estate passed in the demandant’s land.
    
      2. If the joint right to redeem the whole tract sold by the sheriff, was not severed by the partition deeds of the parties, so that Hill & McLaughlin were obliged to release to each his share ; then their deed to Gray would operate as a confirmation of the demandant’s title to an estate in fee under him. , And such was the nature of the incumbrance that they were not obliged thus to release to the respective owners in parcels. And if either or both the parties had a right to tender the whole sum and demand a deed of release, then the demandant is entitled to the benefit, of the redemption; for even an estate held by two joint purchasers under a disseisor, and of course any other joint right, would be confirmed by a deed of confirmation from the disseisee to one of them. Co. Lit. 297. Here the parties had a joint right to redeem the whole tract, and therefore a deed to one, discharging the incumbrance, shall avail the other; the party making the payment having a right to a contribution from the other for the money advanced.
    3. But as between these parties, the deed of the tenant to the demandant, of Jan. 10,1820, conveyed a several right of redemption. It is a release and conveyance of all his title and interest. Now the right of redemption existed at the time of the execution of the deed; and if so, then it passed, as .fully as any other right in the land. The tenant is therefore estopped by the deed to say that he had no such right, or that he afterwards acquired it. And he is equally estopped by his covenant to warrant and defend to the demandant the very title he now claims, against all persons claiming under him and his heirs. Co. Lit. 47. (X) 4 Com. Dig. 85, tit. Estoppel E. 10. Trevivanv. Lawrence & al. 1 Salk. 216,
    
    Arguments for the tenant.
    1. By the St at. 1785, ch. 70, to which the authority of the sheriff is referred, he is to sell the land, and execute a deed to the purchaser and his heirs and assigns, saving to the proprietor a right of redemption; to whom, on payment of the money, the land is to be re-conveyed by the purchaser. The alienation of the estate is involuntary, by operation of law; but the rights of the parties are the same as if the transaction were voluntary, and between themselves; in which case the purchaser would take a fee simple conditional; liable to be defeated on payment of the sum agreed. In this latter case the purchaser might alien the estate at" his pleasure, subject to the condition; such being the attribute of every fee simple. And there is no difference, whether the estate be acquired by voluntary grant, or by force of the statute. The owner, by suffering his land to be thus bur-thened, in effect mortgages it for the amount of the tax; and the difficulty of redeeming it after successive assignments, is no more than is incident to every mortgage. The estate, therefore, which Hill & McLaughlin took was alienable, and of course it passed to their grantee. Rising v. Granger 1 Mass. 47. Gilman v. Brown 1 Mason 212 — 218.
    
      2. It appears that the tenant owned at least one half the township in severalty, and yet the tax is upon the whole tract, in one entire sum. Had this been a tax assessed by town officers in a gross sum upon a tract of land held in severalty by different owners, whose deeds were recorded, it would have been illegal; for in such case no one could relieve his own land, without paying the debt of his neighbor also. The taxes in the present case being imposed by the sovereign power of the State, must be taken with reference to the acknowledged rights of the citizens in other and similar cases; which can only be done by admitting each owner in severalty to redeem his own land by paying his proportion of the tax. If therefore the tenant had been redeeming his own land only, he would have taken a deed of his own part of the tract. But as he took a regular conveyance of the whole, his intent obviously was to acquire the right of his grantors to the whole estate. The passage cited from Co. Lit. 297, only means that the release of the disseisee to one jointenant shall enure to both as against him; but not that it shall effect their lights as against each other.
    
    
      3. If Mr. Gray stands in the place of Hill & McLaughlin, the demandant cannot have the land, on his own principles, without first tendering his proportion of the taxes. Had he done this, and a reconveyance been refused him, his remedy would have been plain by bill in equity, in which case the real merits of the contest would be opened, and both parties be compelled todo equity. For if the purchase from Hill & McLaughlin was a redemption of the land, it was so as to them alone. It still remained equitably charged with the lien in the hands of the tenant; who ought to be regarded in as favorable a light as an equitable mortgagee by deposit of title deeds; — 9 Fes. 115. 2 Fes. & Beame IQ, 83. Russell v. Russell 1 Bro. Ch. Ca. 270; — or as a surety who pays the debt of his principal, and takes an assignment of the debt, and of the mortgage which the principal had given to secure it. Norton v. Soule 2 Greenl. 341. See also Davis v. Maynard 9 Mass. 242. Cary v. Prentiss 7 Mass. 63. Parsons v. Welles 17 Mass. 419. Clason & al. v. Morris 10 Johns. 524.
    As to the estoppel, — it must not work injustice. The doctrine is conceived to apply only to the cases where one having no estate, undertakes to convey, — or where one undertakes to convey a greater estate than he had at the time. The universal administration of the rule would work great mischief. As if A sells land to B, with warranty; and G, a creditor of B, extends his execution upon it, and thus acquires an absolute title; and afterwards sells it again to A; can B, claim it of A, by estoppel ? The reasonable limitation of the rule would seem to require that the intent of the parties at the time of the conveyance, should be carried into effect. Now their obvious intent, by the deeds of partition in the present case, was nothing more than to designate the portions which each should hold in severalty, and to protect each one against titles then subsisting in or derived from the other; leaving lights unforeseen, and subsequently acquired, to their unrestrained operation.
   Mellen C. J.

at the adjourned session of this Court in Cumberland, in April 1825, delivered the opinion of the Court as follows.

For some time prior to January 10, 1820, the parties in this suit were tenants in common of the north half of the township in question; and on that day they came to a division; and Gray, by his deed of that date, sold and released all his right to the demanded premises (being part of said north half) to Williams; and Williams sold and released to Gray all his right to the residue of said north half.

This deed from Gray is a good title as against him; and unless he has since that time acquired a title paramount to this, and of which he has a legal right to avail himself in this action, the de-mandant is entitled to recover. Whether he has acquired such a title is the question. The facts in the case are few and simple.

A year before the division, viz. on the 4th of January 1819, the whole of said township was sold, pursuant to law, by the sheriff of the county, for the payment of the taxes which had been assessed thereon for the seven next preceding years. It was purchased by Hill & McLaughlin for $61 10; and the sheriff gave them a deed of it, reserving to the proprietors or owners the right of redeeming it within two years. On the 13th of March 1820, Gray paid the purchasers $69 11 by way of redeeming the property sold; and they thereupon gave him a deed, whereby they sold and released to him all their right in said township. On these facts the tenant grounds his defence. From a view of them it appears that as the township had been sold a year before the execution of the division deeds, Gray and Williams, at the time of making those deeds, had no right or title remaining in them but the right of redemption; and the right of redeeming the demanded premises was conveyed to and vested in Williams by virtue of Gray's deed of Jan. 10, 1820. What then was the effect of Gray’s payment to Hill & McLaughlin, and of their deed to Gray 9 The answer to this questiou will settle this cause.

It is not necessary in this cause to decide whether Hill & McLaughlin could, during the two years, sell the same land to a stranger, and thereby subject the original proprietors to the inconvenience and necessity of redeeming the lands of such stranger; the facts do not present this question. Whatever Gray did was in the form of redeeming the lands; and the deed which he received of the purchasers, contains merely a release of their right, without any reservation of a right of redemption, as would probably have been the case had the conveyance been made to a stranger. Nor need we decide the effect of such a deed. We place the decision of the cause on another ground.

It is a well settled principle of law that if A sells with warranty to B, a piece of land to which he has no title ; and after-wards purchases a good title ; such title thus procured shall enure to the use and benefit of B ; — because A is estopped, by his deed to B, to demand the land of him, or deny his own right to convey what he undertook to convey to him. Co. Lit. 47, b, and note 307. Fairtitle v. Gibbs 2 D. & E. 171. Jackson v. Metcalf 10 Johns. 91. McCracken v. Wright 14 Johns. 193. Jackson v. Stevens 16 Johns. 110. And there are also several cases by which it is decided that although a deed contains no covenants of warranty, still the grantor shall never be permitted to aver that he had no title to the land at the time of conveyance, and thus to claim against his own deed, in consequence and in virtue of an after-acquired title. To this point may be cited Jackson v. Bull 1 Johns. Cases 91, and same v. Murray 12 Johns. 201. These cases seem not to have been decided on the ground of estoppel technically considered. Perhaps, however, it is not necessary particularly to notice this distiction between the two classes of cases abovementioned, because the deed to Williams contains a special covenant of warranty on the part of Gray, against all persons claiming from, by or under him or his heirs. This covenant must surely be as binding on him in this action as it would be if his heir or assignee was the defendant and the defence should succeed. According to the true intent and spirit of his covenant, it must be construed to extend as well to his own acts, as to the claims of those claiming from, by or under him. Should the defence in this action prevail, it must prevail in consequence of Gray’s own act in procuring the alleged title from Hill & McLaughlin. Against this act and claim his covenant binds him ; and, therefore, according to all the authorities, he is now estopped to claim the demanded premises against his own deed to the demandant. We see no principles on which the defence can be supported. In redeeming the lands, Gray must be considered as the agent of Williams, so far as his interest extended. And if Williams has not already reimbursed the monies advanced by Gray for the purpose of redemption, he stands legally liable for the amount. For the present action is a ratification on the part of Williams of the act of Gray in redeeming the lands.

Let a default be entered, and judgment for the demandant.  