
    McCREADY v. FREDERICKSEN.
    No. 2357.
    Decided August 5, 1912
    (126 Pac. 316).
    1. Tenancy in Common — Purchase by Cotenant — Rights Acquired. Where the interests of tenants in common in real estate are segregated, as where the interest of one is separately assessed and sold for delinquent taxes, or where an execution is levied on such interest, based on a judgment against one for his individual debt, or where there is an outstanding title against the property from some source other than the one under which the tenants hold, one tenant may become a purchaser of such interest or title, and may ordinarily, acquire an interest in the premises as against his cotenant. (Page 394.)
    2. Tenancy in Common — Payment of Taxes — Purchase at Tax Sale. A tenant in common may not acquire title as against his cotenant by purchasing at a tax sale. (Page 394.)
    3. Tenancy in Common — Rights of Tenants — Ouster. Where one enters avowedly as a tenant in common with others, his possession is the possession of the cotenants, so long as the tenancy in common is not openly disavowed; and, before adversa possession bv one tenant, against a cotenant can hfisim — the one in possession mnsiuJby j).pjen-and_nntorio.us-acts^-Gleai?l-y.-show that his possession is intended to be exclusive, but hejieed not give actual notice'to ThUcotenant. (Page" 396.)
    4. Tenancy in Common — Rights of Tenant — Ouster. Where real estate owned by tenants in common is assessed in the name of one of the tenants, or in the name of all, without stating the interest of each, it is the duty of each to pay all the taxes; and the one who pays does so for the benefit of himself and cotenants, and his right against the cotenants is that of contribution only. (Page 399.)
    5. Tenancy in Common — Rights of Tenant — Ouster. Where a tenant in common purchased outstanding tax certificates before a sale for nonpayment of taxes had ripened into an indefeasible legal title, and paid subsequent taxes and obtained a tax deed, which was void, and thereafter conveyed the title to the whole property, limitations did not begin to run, as against the cotenant at least, until the conveyance; and the eotenant suing to quiet title within seven years after the conveyance was entitled to relief. (Page 399.)
    6. Tenancy in Common — Tax Title — Purchase by Cotenant— Remedy. Where a tenant in common has the legal title to an undivided interest in real estate, subject to claims against him for taxes paid by the cotenant and bis grantee, the court, at the suit of the tenant in common, may quiet his title on condition that he pays his part of the taxes and accrued interest; and in ease of default the premises must be sold, and out of the tenant’s share the taxes and interest must be deducted, and the balance, if any, paid to him. (Page 401.)
    Appeal from District Court, Third District; Hon. F. C. Loofbowow, Judge.
    Action by John McCready against N. A. Fredericksen.
    Judgment for defendant. Plaintiff appeals.
    REVERSED AND REMANDED.
    
      Valentine Gideon for appellant.
    
      G. 8. Patterson and P. P. Christensen for respondent.
   FRICK, O. J.

On the 11th day of April, 1910, appellant commenced this action to quiet the title in himself to an undivided1 one-half interest in the real estate described in the findings. The respondent answered the complaint, and in his answer set up title in himself to the whole of the real estate in question, and prayed for a judgment or decree quieting the title thereto in himself. The appeal is upon the judgment roll without a bill of exceptions. The findings of fact made by the court, which in legal effect, for the purposes of this decision, may be treated as an agreed statement of facts, are as follows:

- “That on the 10th day of February, A. D. 1891, the plaintiff, John McCready, and one Fenno Wakeman were each the owner of an undivided one-half interest in the following described real estate situate in the county of Salt Lake, State of Utah, to wit: The E. % of the S. % of lot No. six (6), block No. thirty-nine (39), plat B, Salt Lake City Survey.

“That on the llth day of February, A. D1. 1891, the property hereinbefore described was, by the officers charged with sucb duty, sold to Axel Olsen for tbe delinquent taxes on said property for tbe year 1896, and a certificate of sucb sale issued to tbe said Axel Olsen, wbicb said certificate was duly recorded in tbe office of tbe county recorder of Salt Lake County, Utab, on tbe 22d day of March, 1897, in a book therein provided by law to be kept for that purpose, to wit, Book A of Tax Sales, page 27, line 18, of 'the records of said county.

“That on tbe 21st of December, A. D. 1897, tbe property hereinbefore described was, by tbe officers charged with said duty, sold to M. 0. Moon for tbe delinquent taxes on said property for the year 1897, and a certificate of such sale issued to tbe said M. O. Moon, wbicb said certificate was duly recorded in tbe office of tbe county recorder of Salt Lake County, Utab, on tbe 21st day of December, A. D. 1897, in a book therein, provided1 by law to be kept for that purpose, to wit, Book B of Tax Sales, page 3, line 9, of tbe records of said county.

“That each of said hereinbefore-described certificates of tax sale were by tbe holders thereof duly assigned in tbe year 1899 to Fenno Wakeman.

“That on or about tbe 6th day of March, A. D. 1901, George H. Wood, tbe duly elected, qualified, and acting auditor of Salt Lake County, Utab, executed and' delivered to tbe said Fenno Wakeman a tax deed to tbe premises hereinbefore described, and to tbe whole thereof, which-said1 deed recited that it is issued under and' by virtue of a certificate of tax sale in wbicb said property was sold1 to Axel Olsen for tbe unpaid taxes for tbe year 1896, and wbicb said deed was filed for record in tbe office of tbe recorder of Salt Lake County, Utab, on tbe 6th day of March, A. D. 1901, and duly recorded in a book therein required by law to be kept for sucb purpose, to wit, Book 5F of Deed's, on page 126 thereof, of tbe records of said county,

“That in tbe years 1896 and 1897 the property hereinbe-fore described was assessed for taxation in tbe name of ‘Fen-no Wakeman et al./ and was not assessed, nor any part there*of, in tbe name of tbe plaintiff, John MfeCready, although the name of the said plaintiff appeared of record in the office of the recorder of Salt Lake County in connection with the title to an undivided one-half interest therein; that in neither of said years was a tax notice sent to the plaintiff; that the assessment roll for the year 1896 in Salt Lake County did not contain the warrant required by law to accompany the duplicate roll, authorizing the collector to collect the tax; that in the publication of the delinquent tax list for the year 1896 the property was described as belonging to ‘Fenno Wakeman et al

“That the plaintiff, John McCready, has been engaged in the retail dry goods business at Ogden, Utah, for the past twenty years, but that he has, during all of said time, owned real estate in Salt Lake City and paid taxes thereon; that he ascertained in the year 1897 that the property hereinbefore described was sold for taxes for the year 1896, and also knew that it was sold again in the year 1897; that he knew of the issuing and recording of the tax deed to Fenno Wakeman; that he made no effort to pay the taxes assessed against said land for the year 1896, or for any year since said date; that in the year 1897, and for many years thereafter, there was no right of way appurtenant to said land, which is in the center of a block; and that there is still no right of way to said land, except over other lands now owned by the defendant.

“That neither the said Fenno Wakeman, nor the defendant, N. A. Fredericksen, at any time ever requested or demanded of the plaintiff that he pay his share of the taxes for the year 1896 or 18.97, or any subsequent years.

“That during all of the time since the 6th day of March, 1901, the said described premises have been protected by a substantial inclosure.

“That during the years 1901, 1902, 1903, 1904, 1905, 1906, and 1907 the premises were cultivated by a tenant of the said Fenno Wakeman, who occupied said premises by virtue of an oral agreement, by the terms of which the said tenant agreed to look after the property and endeavor to sell it in return for the use thereof; that during each of said named years tbe said tenant bad a garden, and raised vegetables on tbe said described premises.

“That on tbe 15th day of October, 1907, tbe said Fenno Wakeman and Jennie A. Wakeman, bis wife, conveyed said premises, by warranty deed, to> tbe defendant, N. A. Ffed-erictsen. Said deed was died for record in tbe office of tbe county recorder of Salt Lake County, Utab, on tbe 30tb day of October, 1907, and recorded in a book therein required by law to be kept for tbat purpose, to wit, Book 7Q of Deeds, on pagjs 101 thereof, of the records of said county.

“Tbat since tbe 15th day of October, 1907, tbe said defendant, N. A. Fredericksen, has caused said land to be cultivated as a garden, has bad a barn thereon, used by bis tenants, has extended the sewer along tbe side of said property for its full length, and has caused a large number of loads of earth to' be hauled on said land for tbe purpose of raising tbe grade thereof.

“That tbe said defendant and bis grantor have paid taxes on said described premises as follows: 1896, $8.89; 1897, $7.95; 1898, $8..22; 1899, $8.07; 1900, $9.40; 1901, $11; 1902, $10.65; 1903, $10.61; 1904, $10.95; 1905, $11.44; 1906, $11.75; 1907, $13.80; 1908, $13.69; 1909, $14.13; 1910, $16.43. Said payments having been made on or about tbe 1st day of November in each year, and tbe same being all tbe taxes levied or assessed against said premises during said years.

“Tbat since tbe execution and delivery and recording of tbe tax deed described in tbe fifth finding of fact herein tbe said plaintiff has not offered to pay any portion of tbe taxes, costs, and expenses incurred by reason of tbe said tax deed, or taxes levied and assessed against said property since tbe year 1896, until shortly before this action was commenced, and in tbe early part of 1910, when tbe plaintiff called on tbe defendant, N. A. Fredericksen, and offered at tbat time to pay to him, bis share of all taxes assessed against said premises; tbat there has been no revenue derived from tbe said premises since tbe year 1896, except tbe occupancy and use by the defendant and the said Eenno Wakeman, as herein-before stated.”

As conclusions of law, the court,, in substance, found that the tax deed mentioned in the findings was void; that the defendant and his grantors had held the whole of the premises in question by adverse possession for a pieriod of more than seven years next preceding the commencement of this action; that they had paid all the taxes assessed and levied against-said premises during said time; that respondent had acquired the title to said premises by adverse possession of his grantors; that respondent therefore was’entitled to a judgment or decree quieting the title to the whole of said premises in himself, and for costs. A decree was accordingly entered, quieting the title to the whole of said premises in respondent, and appellant has appealed, praying for a reversal of said judgment or decree.

The only errors assigned are that the conclusions of law are not supported by the facts found and are contrary to- law, and that the judgment or decree is contrary to law.

In view of the importance of the principles involved, we have set forth the court’s findings of fact in full. The questions that arise upon the foregoing facts, and which are to be determined, are: (1) Are the conclusions of law as found by the court supported by the facts found; and (2) is the judgment or decree contrary to law ?

From the findings of fact it is conclusively established that the appellant and respondent’s grantor, Nenno Wakeman, in the year Í891, were, -and from thence forward continued to-be, tenants in comnton of the premises described in the findings, each owning an undivided one-half interest therein, and that such relation continued up to- the 15th day of October, 1901, when said Wakeman conveyed the whole premises to respondent, unless Wakeman’s acts in paying taxes and in obtaining a tax deed, under the circumstances stated in said findings, severed that relation at an earlier date. The first question that arises, therefore, is: -What are the mutual rights and obligations of tenants in common with respect to the real estate owned by them as such tenants ? What interest, if any, may one tenant acquire as against the other while the relation exists ?

There is no doubt that where the interests of cotenants are segregated — that is, where, for example, the interest of one is separately assessed' and offered for sale for delinquent taxes, or where an execution is levied upon such an interest, based upon a judgment obtained against one of the tenants only for his individual debt, or where there is an outstanding title against the premises from some source other than the one under which the tenants hold — then, under certain circumstances, one co-tenant may become a purchaser of such interest or title, and may ordinarily acquire an interest in the premises as against his cotenant. May he do this, however, where the judgment is upon the whole land, and where it is obtained for a joint debt, or where the taxes are levied and assessed in the name of both as against the whole land, and are delinquent as against the entire premises?

In Black on Tax Titles (section 28.2), the author states the law upon the subject now under consideration in the following words:

“One of the most familiar applications of the rule under consideration is this: Where land is owned by joint tenants, co-parceners, or tenants in common, and taxes are assessed upon it as a whole, and it is sold for nonpayment of the same, neither of the cotenants can purchase a title at the sale which shall be paramount to that of his companions, or operate to dissolve the relationship. His payment is regarded as simply discharging the assessment, and it will inure to the benefit of all. He acquires no other or greater interest than he held before, except that he has a claim upon the others for reimbursement according to their respective shares. This rule rests upon very obvious principles, and there is no possible question as to its justice and strict legality. For, in the first place, it is plainly a duty which any and each of the eotenants owes to the state to pay the taxes upon the whole tract when they are so assessed. And, of course, he must not be allowed to reap an advantage from his neglect of this duty. But, in addition to this, there is a strong objection to such a proceeding arising from the mutual relations of the parties. It is well illustrated in the following remarks by the court in Kentucky: ‘As a general rule, one tenant in common, before partition, is not permitted to purchase in a superior outstanding claim for his own exclusive benefit, and much less to use it for the expulsion of his cotenant. Such a purchase is considered in equity as inuring to the benefit of both, and the purchaser is entitled to contribution. This principle arises from the privity subsisting between parties having a common possession of the same land, and a common interest in the safety of the possession of each, and it only inculcates that good faith which seems appropriate to their relative position.’ ”

In section 284 of the same book, the author also states the law to be to the effect that neither of the cotenants can acquire any rights in the premises as against his cotenant, except for contribution, by purchasing a tax certificate from one who has paid the taxes upon the premises owned' by the cotenants. Nor can such cotenant acquire any right, except where the tax sale has ripened into a complete and indefeasible title prior to the time of the purchase by the cotenant. The latter transaction is generally held to be equivalent to purchasing an outstanding title from an independent source. In Freeman on Cotenancy, etc. (section 158), the rule applicable to the facts in this case is stated by the author as follows:

“As a general rule, no contenant will be permitted to assert against bis companion a title acquired by purchase at tax sale for taxes imposed on their common property during their joint ownership. Tax titles affecting undivided interests may arise from a sale which includes the interest of all the owners, or from a sale which includes the interest of but one. Where, as in the former case, the cotenant purchasing at the sale is himself in fault for not mating payment of the amount due on his own moiety/ there is no doubt that his purchase cannot be enforced against his companions, except as a basis for compelling them to reimburse him for their pro ráta of the sum paid to release the common property from a common burden.”

In referring to the question now under consideration, Judge Cooley, in bis work on Taxation (3 Ed.), p. 963, says:

“Some persons, from their relation to the land or to the tax, are precluded from becoming purchasers on grounds which are apparent when their relation to the tax and to the property is shown.”

The author cites many eases in support of the doctrine and! then, at page 966, proceeds as follows:

“The cases to which attention is called in the margin, and many others to which they refer, will show the application of the rule under a great variety of circumstances. It has been applied to cases where the default was only in part that of the purchaser, as where he was tenant in common with others.”

In other words, a tenant in common is one whose relation to the tax and the property is such as ordinarily precludes him from acquiring title as against his eotenant by purchasing at a tax sale.

By reference to the cases cited in support of the foregoing texts, it will be found that all three of the authors are supported by 'the decisions of the courts. In Sorenson v. Davis, 83 Iowa at page 409, 49 N. W. at page 1005, Mr. Justice Given, in speaking for the Supreme Court of Iowa, lays down the rule in the following language:

“It is a well-established principle that a tenant in common cannot acquire title adverse to his cotenants by purchase at tax sale. He will be regarded as holding the title he thus acquires in trust for his cotenants, until the presumption is repelled by their refusal to contribute in payment of his outlays.”

The doctrine laid down by the three distinguished authors and by the Supreme Court of Iowa is, however, not seriously questioned by counsel for respondent; but they insist that in this case the acts of Fenno Wakeman constituted an ouster of his cotenant, the appellant, and hence contend that the statute of limitations as against appellant was set in motion from the time of the ouster.

The real question to be answered therefore is: What acts as between cotenants amount to an ouster ? Upon this question the authorities are^ to* say the least, conflicting. Some of the courts are inclined to be more liberal than others in construing certain acts as sufficient to constitute an ouster. In this connection it must be remembered that the possession, and even the use, by one cotenant of premises is always presumed to be the possession of all. Moreover, that any act of his which is calculated to protect the property against a lien, or sale, or otherwise, will also be presumed' to be for tbe benefit of bis cotenants; and tbis presumption prevails until tbe contrary is clearly made to appear. Although tbe decisions are in conflict with regard to what acts of one in possession are, in law, sufficient, to constitute an ouster of bis cotenant, yet, in view of tbe undisputed facts in tbis case, we are dearly of the opinion that under tbe great weight of authority tbe acts of Fenno Wake-man, prior to tbe time be conveyed tbe property in question to respondent, were dearly insufficient to constitute an ouster of bis cotenant, tbe appellant. Counsel for respondent have cited a large array of cases which, they contend, support their contention that tbe acts of Fenno Wakeman, as set forth in tbe findings of fact, constituted an ouster of appellant, and that tbe statute of limitations was set in motion as against him from tbe time said Wakeman obtained tbe tax deed in question, although said deed was void upon its face under tbe former decisions of this court. Counsel rely upon tbe followL ing cases: Lavelle v. Strobel, 89 Ill. 370; King v. Michael, 136 Ind. 20, 35 N. E. 509, 43 Am. St. Rep. 303; Elder v. McClaskey, 70 Fed. 529-542, 17 C. C. A. 251; Winierburn v. Chambers, 91 Cal. 170, 27 Pac. 658; Packard v. Johnson, 57 Cal. 180; Clark v. Crego, 47 Barb. (N. Y.) 599; Baird v. Baird, 21 N. C. 524, 31 Am. Dec. 399; Van Gunden v. Va. C. & I. Co., 52 Fed. 838, 3 C. C. A. 294; Knowles v. Brown, 69 Iowa, 11, 28 N. W. 409; Stevens v. Reynolds, 143 Ind. 467, 41 N. E. 931, 52 Am. St. Rep. 422; Davis v. Chapman (C. C.), 24 Fed. 674; Nelson.v. Davis, 35 Ind. 482; Bennet v. N. C. S. & I. Co., 23 Colo. 470, 48 Pac. 812, 58 Am. St. Rep. 281.

While it is held im tbe foregoing cases that in case of ouster one eotenant may acquire title by adverse possession as against bis eotenant, yet in every ease referred to above there is some special ground or reason, which is not present in tbe ease at bar, upon which tbe decision is based. In some of tbe foregoing cases, the decisions are based upon the fact that tbe grantee of one of the cotenants bad been in possession under bis deed, claiming title to tbe whole property, for tbe time required' by tbe statute of limitations, and bad thus acquired title by adverse possession as against the claimant. In other words, the claim in those cases was the same as though the respondent had been in possession under the deed from Fenno Wakeman for the period of time required by our statute of limitations to acquire title by adverse possession. If in this case respondent had been in possession of the premises in question under his deed from Hr. Wakeman, and had paid the taxes thereon for seven years prior to the commencement of this action, a different question would be presented. The act of Mr. Wakeman in making a deed, whereby he in terms conveyed the title to the whole of the premises in question, was an unequivocal act, by virtue of which he clearly indicated to every one, including his cotenant, that he claimed the title to the whole of the premises in question. Such an act was therefore one which was notice to all the world' that the grantor claimed title to the whole property, and thus excluded all others, including the appellant. We think the true rule with regard to what constitutes an ouster is stated! in the case of Elder v. McClasIcey, 70 Fed. at page 542, 17 C. C. A. at page 264, by Mr. Justice Taft, in the following words:

“Where one enters avowedly as tenant in common with others, his possession is the possession of those others, so long as the tenancy in common is not openly disavowed. Before adverse possession by one tenant in common against another can begin, the one in possession must, by acts of the most open and notorious character, clearly show to the world, and to all having occasion to observe the condition and occupancy of the property, that his possession is intended to éxclude, and does exclude, the rights of his cotenant. It is not necessary for him to give actual notice of this ouster or disseising of his cotenant to him. He must, in the language of the authorities, ‘bring it home’ to his cotenant. But he may do this by conduct, the implication of which cannot escape the notice of the world about him, or of any one, though not a resident in the neighborhood, who has an interest in the property, and exercises that degree of attention in respect to what is his that the law presumes in every owner.”

While some courts have gone to the extent of bolding that there must be express notice of ouster or actual ouster by one cotenant of another before the statute of limitations is set in motion, yet we think the weight of authority supports the foregoing statement of Mr. Taft.

Do the facts of this case bring it within the rule laid down in the foregoing quotation? We are clearly of the opinion that they do not; and, .in view that the facts are not disputed, nothing is left, save to apply the law to the undisputed or conceded facts, and we are placed in as good a position to do this as was the ‘trial court. What, then, did Mr. Wakeman do which can be construed as constituting an ouster of appellant, his cotenant ? As we have seen, the whole land was assessed in the name of “Fenno Wakeman et alAssuming that “et al.” meant respondent, yet it is not a case where the cotenants had their interests assessed separately, and where each eould have paid the taxes, upon such interest, as is often found to be the case in the decided eases. Where the whole property is assessed in the name of one cotenant, or is merely assessed in the names of all without stating the interest of each, the courts generally hold that it is the duty of one cotenant, just as much as of the other, to pay all of the taxes. In other words, it is generally held that under such circumstances the one who pays does so, not only for the benefit of himself, but also for the use and benefit of all of his co-tenants, and that the only right he has as against them is the right of contribution. This is clearly logical. The mere act of paying -the taxes under such circumstances cannot be regarded as an act which in any way disturbs any right of the cotenant; but, under the law, the presumption always is that the -act was for the use and benefit of all interested in the premises.

The purchase of the outstanding tax certificate by Wake-man was, in legal effect, no more than the payment of the taxes by him would have been as between him and appellant. In relieving the property from the tax lien, appellant had the right to rely on the presumption that Wakeman acted for both. This presumption prevailed until Wakeman took some step or did something from which it was clearly inferable •that he intended to and did exclude his cotenant, the appellant. Wakeman’s acts up to the time he conveyed tbe whole property to respondent, when keeping in mind bis relation to tbe property and to appellant, were not such as would necessarily be construed by any one to amount to a claim by him of title to tbe whole of tbe property. Indeed1, all of bis acts and conduct up to tbe time be made tbe deed to respondent were such as could readily be reconciled with tbe legal presumption that what be did was for tbe benefit of bis cotenant, as well as for tbe benefit of himself. To merely have paid tbe taxes under the circumstances would not have conferred' any right upon him to claim tbe whole property by adverse possession. To purchase tbe tax sale certificate before tbe sale bad ripened into a complete and indefeasible legal title, and' tbe subsequent payment of taxes could have m} greater effect than tbe continuous payment of taxes would have bad. To pay tbe taxes was clearly for tbe benefit of Mr. Wakeman, and did no more than to relieve tbe property from tbe statutory tax lien. Purchasing tbe tax certificate under tbe circumstances as between Wakeman and appellant could have bad no grelater legal effect than tbe payment of tbe taxes. Put when Mr. Wake-man undertook to convey tbe whole title to the property be assumed a different attitude. Assuming, without deciding, that Wakeman’s act of conveying tbe title to tbe whole property may be deemed and taken as an ouster of bis cotenant, yet this act occurred only about two and one-half years before this action was commenced. In no event, therefore, did tbe statute of limitations begin to run until tbe conveyance aforesaid; and, as that occurred less than seven years prior to tbe commencement of this action, respondent’s claim of title by adverse possession cannot be sustained. It is not necessary to refer to any of tbe other acts of Wakeman, which are specifically set forth in the findings of fact. All of bis acts were readily reconcilable with tbe legal presumption herein-before referred tix We are of the opinion, therefore, that tbe court erred in applying tbe law to tbe undisputed facts.

When .this action was commenced, appellant still held tbe legal title to an undivided one-half interest in tbe premises in question. As against this title, neither Wakeman nor respondent bad any claim, except tbe claim for taxes, general and special, and accrued interest, and possibly for sncb contribution as tbe law provides for as between cotenants when betterments or improvements are made upon tbe joint property. We tbink tbat, in view of tbe undisputed facts of tbis case, tbe court bas power toi make a decree quieting tbe title to an undivided one-balf interest in tbe premises in question in. appellant conditionally. Tbat is, tbe court may quiet the title in him upon condition that be pay intó court, within a time to be fixed by it, bis proportion of tbe taxes and accrued interest and such other sum as tbe court may find be should pay under tbe law. In case of bis default, however, tbe court should order the- premises sold, and out of appellant’s half of tbe proceeds deduct the taxes and interest and such other amount, if any, as tbe court may find legal and just as aforesaid. The balance^ if any, remaining of said one-balf should be ordered to be paid to appellant, after deducting tbe costs of sale. In case, however, appellant shall pay tbe taxes and accrued interest thereon, together with any other sum that the court may find legal and just, the title to a one-balf interest in said premises should be quieted to him.

Tbe judgment is therefore reversed, and tbe cause remanded to tbe district court, with directions to set aside tbe conclusions of law and judgment or decree in favor of respondent, and to substitute conclusions of law and enter judgment or decree in favor of appellant in accordance with tbe views expressed in this opinion. Appellant to recover costs.

Me CANT Y and STEATXP, IJ., concur.  