
    Nowler, Douglas, and others v. Daniel L. Coit.
    
      Lands sold by Administrators — Taxes.
    Purchase money paid to an administrator upon a sale of intestate’s land can not be recovered of the heir where the sale is inoperative and the heirs recover the land.
    Taxes paid by a purchaser shall be refunded, with interest and expenses of making the payment, where the heir comes into equity to disincumber the title.
    In the year 1792, the State of Connecticut, then claiming certain lands situate within that tract of country in the now State of Ohio called the Connecticut Western Reserve, granted 500,000 acres, by particular description, to certain individuals to remunerate them for suffering during the revolutionary war. This tract of country received the name of the fire lands. At the time of this grant the Indian title was not extinguished.
    After the grant, and while the land was subject to the jurisdiction of Connecticut, as claimed by her, the legislature of that state incorporated the proprietors of the land, who were residents off Connecticut, and empowered them to do various acts for the preservation of the property, and the extinguishment of the Indian title, and among other matters, empowered them to assess a tax upon the land to raise funds for its preservation.
    On the 30th of May, 1800, the governor of Connecticut, in virtue of an act of Congress, and of an act of the legislature of Connecticut, ceded to the United States the jurisdictional claims of that state to the tract of country called the Western Reserve, including the fire lands, and the same were constituted part of the county of Trumbull, and made fully subject to the jurisdiction of the territorial government of the then Northwestern Territory.
    The ancestor of the complainants was one of the grantees. Ha died in Connecticut, before the year 1801, and letters of administration on his estate was granted to Daniel Douglas, by the court ■of probate of the district of New London, in Connecticut, in February, 1801, and that court upon a representation of the administrator, directed the interest *of the intestate in these lands to be sold for the payment of debts. The sale was made on the 24th of March, 1801, and the defendant, D. L. Coit, became the purchaser, at a fair price, and received a deed from the administrator.
    In April, 1803, the legislature of Ohio incorporated the owners of these lands, for the same purpose and upon the same principles ■originally embraced in the Connecticut act of incorporation. It authorized the directors to extinguish the Indian title, and to make partition among the proprietors, to levy and collect taxes.
    Upon the tracts partitioned to the right of Douglas, the defendant, Coit, paid the taxes, as well those assessed by the company as those assessed by the state. But no improvement was made upon the lands, nor were any offers made by the heirs of Douglas to pay the taxes.
    The bill was brought by the heirs of Douglas claiming the lands as in their possession accompanied with the legal title, and calling upon the defendant to disclose under what title he set up a claim. The defendant, in his answer, set up the purchase under the administrator, and he claimed, if the title was adjudged defective, to have the purchase money and taxes refunded, with interest-The Supreme Court, sitting in Huron county, adjourned the cause here for decision. The judges who heard the cause in Huron county, having strongly intimated an opinion that the sale could not bo sustained, that question was not argued nor insisted upon by the defendant’s counsel.
    Whittleset & Newton, for defendant:
    The complainants come into equity to have their title freed from the embarrassment of the defendant’s claim. They can only ask this upon equitable terms. They must refund:
    1. The money paid to the administrator of their ancestor’s -estate, with interest.
    2. The amount of taxes paid to the company, with interest.
    3. The taxes and interest paid to the state.
    4. The expenses incurred in paying the taxes, with interest.
    
      *Money paid under a void authority may be recovered back in the equitable action of assumpsit. 2 Com. 49; Ld. Raym. 742.
    To charge the complainants with the money paid to the administrator is not making them debtors against their will. They have taken credit for it in settling their ancestor’s estate; and they claim the identical lands partitioned to the defendant under the purchase. Both these acts involve an implied assent to become debtors for the money. It would be unconscionable to retain it, and take from the defendant the consideration for which it was paid.
    The taxes, both to the company and to the state, were paid by the defendant. By these payments the estate was saved from incumbrances. The complainants, in seeking to hold the land, claim the benefit of these advances, and therefore ought to be held accountable. By asserting the possession in themselves, they virtually admit the defendant to be their trustee; the land was partitioned to him; he took charge of it, and paid the taxes. No other act of ownership, or of possession, was exercised by any one. The complainants can have no possession but that of the defendant. They make him their trustee for the possession, and they must account to him for his advances as a trustee. 1 Ves. Jr. 337; 1 Johns. Ch. 39.
    The right to be reimbursed the taxes, includes the right to be reimbursed the money expended in making the payments, as the incident follows the principle.
    Latimer, for the complainants ;
    The matters of account for which the defendants not only claim to be paid, but to have a lion decreed upon the land, appear altogether unprecedented.
    That for the purchase money stands upon no known principle. Who ever heard of a grantee in a void quitclaim deed recovering the purchase money paid? How can a claim for money paid to an administrator be set up against the heir? It might as well be maintained against any other stranger. The' administrator had nothing to do with the land. It was not assets in his hands. 4 Bibb, 402. If he received the money, his securities as administrator are not bound for its application.
    *As to the repayment of the taxes, it is to be remarked, that in the vast multitude of cases both, in England and in our sister states, where parties have been evicted from lands by superior titles, not one case is found where any such reimbursement has been made. Even our occupying claimant law does not cover taxes. The defendant purchased at a speculation, and he made payment of the taxes at this risk. The chance of his gain was, that his possession and payment of taxes might secure him the title by aid of the statute of limitations. It was upon this chance he made the payment, and not upon an expectation to be reimbursed by the plaintiffs.
    There is still less color for charging the plaintiffs with the taxes assessed by the company or corporation. They were infants, and never assented to the charter so as to become members. 2 Mass. 269. It is argued that by claiming the specific lands partitioned to the defendant, the plaintiffs recognize the partition made by the company, and affirm- it, and with it all the doings of the corporation. We deny this consequence. Partition may be made by parol. Here all the grantees unite in setting out the right of our ancestor, and our acquiescence binds us in nothing else.
   By the Court :

The defendant’s counsel have very correctly abondoned the-validity of the sale, and conveyance made under the order of the court of probate of Connecticut. At the time the order was made the State of Connecticut had no jurisdiction over the lands in question. They were subject only to be sold and conveyed under the laws of the then territorial government. The sale to the defendant is neither authorized nor sanctioned by these laws; it is, of consequence, inoperative. The title remains untouched in the heirs to-whom it descended.

The purchase money paid by the defendant upon the sale constitutes no charge upon the land in the hands of the complainant. The lands of the deceased were never legally charged with the-payment. The administrator, from whom the defendant purchased, had no power over them. He paid his money upon a mistake as to the consideration. The present complainants are not the parties-*to whom he paid it, or with whom he made the contract; and his right to recover back his money can not be litigated with them, neither at law nor in equity. We can therefore make no decree-■ with respect to the purchase money.

The amount paid for taxes stands upon a very different ground. These were chargeable by law upon the land, and the payment was. a direct benefit to the complainants. It was their duty to pay. In the case they failed to do this, the land was liable to be sold for the taxes. They have derived a benefit from the payment, and in equity ought to refund the money. In one sense the defendant is a mere volunteer in making the payment; but when the owner of land in such case omits to pay the taxes as they fall due, he adopts the payment made by such volunteer, and as to that, constitutes him his agent, by recognizing his acts. Perhaps a court of equity might not, in every case of such volunteer, and upon his application, decree a lien for the taxes; but where these taxes have been paid under an opinion that the person who paid them owned the land, and when the true owners come into equity to ex.amine that claim of ownership, and to have it quieted, the rule that he who asks equity must do it, strictly applies. The court will not lend their aid to quiet the title, without securing to the defendant the moneys paid in preserving that title; moneys which the owners ought to have paid, and without the payment of which the land would have been lost.

The taxes assessed by the company are not to be distinguished from those assessed by' the state. The whole, with interest, are justly due, and the payment must be charged upon the land.

The commissions, or other expenditures necessarily incurred in the payment of' the taxes, also constitute for the defendant an equitable claim against the complainants. It is a charge inseparable from the payment of the taxes, which, had the complainants paid the taxes themselves, they must have incurred; and therefore, upon obtaining a decree of this court to rescue their title from suspicion, they must repay this expenditure to the defendant.

The .cause must be sent back to the county of Huron, with directions that the master commissioner take an account of the payments made for taxes, and expenses in making *such payments, with interest upon each sum paid from the time of payment; upon which a final decree must be entered, upon the principles here decided.  