such taxes made on April 12, 1900. There where, on payment of $272.90, they would is no doubt that the payment of the arrears be delivered up. for 1899 was a result of the visit by the Neither Mrs. King nor her representatives, bookkeeper to the tax office. It will be ob- after learning in July of the sale of the served that the payments which were made property and of the outstanding tax title, in 1900 and 1901, of taxes which were in gave any notice of that fact to the lessor, arrears, did not embrace the second instal- nor did they apparently concern themselves ment of the tax of 1898, due in May, 1898. further about the matter until the pur. To enforce that instalment a sale had chase of the certificate from Wiltsie, as been made in April, 1899, and a certificate hereafter stated, by Cohen, one of the dewas issued to the purchaser a few days fendants. thereafter, which was subject to a right of Both the Kann defendants carried on redemption during a period of two years. business on Market space, having stores In other words, when the instalments of on each side of the property leased to King, taxes which were in arrears were paid on and the situation was therefore such that July 24, 1900, the property had been sold the possession of that property was particufor the last half of the tax of 1898, and larly advantageous to the Kanns. Indeed, when the payment was made in 1901 of they had at some previous time stated to the arrears for 1899 the period for redemp- Webb, the attorney of the lessor, that if tion had elapsed.

they could obtain a long lease of the premOn July 25, 1901, Mrs. King received a ises they would be willing to pay a rent letter sent from Rochester, New York, by much in advance of that paid by Mrs. King. one Wiltsie, stating that he had bought the Some time in September, 1901, one Knight property in April, 1899, at a tax sale to called upon the Kanns and informed them enforce the tax for the second half of the that the property at 715 Market space had year 1898, and that he was entitled to a been sold for taxes. They referred him to deed of the property, but would surrender Webb, the attorney of the lessor. Knight the tax certificate if immediate payment called upon Webb, said to him that Wiltsie was made of the amount of his, Wiltsie's, had bought the property at the tax sale, advance, viz., $143.93, together with the and solicited employment to set aside the statutory interest at the rate of 15 per cent, sale. Webb on the next day made inquiry, and a charge for releasing, to be agreed and discovered the fact of the sale and the upon. Harry King replied to this letter outstanding certificate and the lapse of the on July 30, 1901, and asked to be informed period of redemption. He informed the lesof the charge for redemption. Wiltsie an- sor of the fact and of her right to forfeit swered on August 1, 1901, calculating the the lease. Mrs. Kennedy, who was adstatutory interest at $50.38, and naming vanced in age, being nearly eighty years $100 as his fee or charge for releasing. To old, was perturbed, and, in a letter to Webb, this letter reply was made that Harry King expressed solicitude as to obtaining a new was out of town, and that on his return tenant in case the lease of Mrs. King was the letter of Wiltsie would be laid before forfeited. As a result of the conferences him. On September 17, 1901, Wiltsie wrote and the correspondence between Mrs. KenKing, and called attention to the fact that nedy and her counsel, the latter called on he had not heard from him, and requested to Cohen, another defendant, who was the atbe informed by return mail when the matter torney of the Kanns, and desired to know would have attention. To this King re- whether the Kanns were yet willing to lease plied, objecting to the charge of $100 for at an increased rent, and was informed they releasing, and stated that in his opinion were. Shortly after Cohen advised the $50 would be an equitable charge. The let. Kanns to purchase the Wiltsie tax certifiter concluded as follows:

cate, and upon their giving him authority “Unfortunately we have paid you quite a to use his discretion in the matter he deconsiderable amount of money in the past termined to go at once to Rochester to acfor tax sales. We are not interested in complish that purpose. He communicated this piece of property in any way except his intentions to Webb, who endeavored to as tenant, as we are not the owners or the dissuade him. Cohen went to Rochester. mortgagees. If it should meet with your The papers which had been sent to Washapproval send us a bill and we will send ington in consequence of the correspondence check."

between Wiltsie and King were returned It was replied on September 24, 1901, to Rochester. Cohen bought the certificate, that if the matter was attended to promptly took an assignment of the same in Octo$75 would be accepted for the release certifi-ber, 1901, and, returning to Washington, cate, and that the papers had been sent to procured a tax deed for the property from the Central National Bank of Washington, the commissioners of the District, which

7

was duly recorded. Thereafter Mrs. Ken- | the Kanns at the instance of the counsel nedy notified Mrs. King of her intention to of Mrs. Kennedy, for the purpose of making re-enter because of the forfeiture of the sure of a forfeiture of Mrs. King's rights, lease resulting from the sale of the property and with the knowledge that negotiations for the nonpayment of taxes. Harry King were pending between Mrs. King and then called at the bank to take up the cer- Wiltsie, and for the purpose of forestalling tificate, and found that it had been returned the acquisition by Mrs. King of the tax to Wiltsie. Negotiations ensued between certificate. Mrs. King and Mrs. Kennedy, looking to a The negotiations having failed, Mrs. compromise of the matter, and a letter was Kennedy commenced landlord and tenant written by the counsel of Mrs. King to Mrs. proceedings to recover possession. Before Kennedy, asking to be permitted to use her the time set for the trial of the proceedings name in proceedings to be brought to can- Mrs. King commenced this suit, which, as cel the tax sale. This was declined. At we at the outset stated, sought to have the all times Mrs. King insisted upon her right tax title declared void, to have complainant to continue in possession under the lease relieved from the forfeiture, and for an indespite the default. The Kanns notified junction restraining the prosecution of a Mrs. Kennedy that they were the real hold- landlord and tenant proceeding. ers of the tax title, and would attempt to That a court of equity, even in the abenforce their rights under it unless a lease sence of special circumstances of fraud, acof the property was made to them at the cident, or mistake, may relieve against a previously suggested increased rental. The forfeiture incurred by the breach of a covecounsel of Mrs. Kennedy, Webb, advised nant to pay rent, on the payment or tender making such a lease. Placed between the of all arrears of rent and interest by a dethreatened assertion by the Kanns of the faulting lessee, is elementary. Sheets v. tax title, unless they obtained a lease, and Selden, 7 Wall. 416, 19 L. ed. 166. But that the insistance of Mrs. King that she was en principle cannot control this case, even if it titled to retain the property under her lease, be conceded, for the sake of argument, that Mrs. Kennedy wavered. The result was a it applies to collateral covenants in leases, letter addressed by Webb, the counsel for such as the obligation to repair, to insure, Mrs. Kennedy, to the counsel for Mrs. King, and even to pay taxes, said in the Sheets submitting a proposition of compromise, case to be settled in England adversely to which was in substance that Mrs. Kennedy such right, but to be an open question in would waive the forfeiture upon condition this country, and as to which there may be that Mrs. King promptly commenced and differences of opinion in state courts of last prosecuted proceedings to have the tax deed resort. Noyes v. Anderson, 124 N. Y. 175, to Cohen declared a nullity or defend 21 Am. St. Rep. 657, 26 N. E. 316; Giles v. against any claim under the tax title, and Austin, 62 N. Y. 491; Gordon v. Richardson, upon the further condition that Mrs. King 185 Mass. 492, 69 L. R. A. 867, 70 N. E. furnish a bond with sufficient surety to 1027; Lundin v. Schoeffel, 167 Mass. 465, 45 pay the sum of $70,000 in the event that the N. E. 933; Mactier v. Osborn, 146 Mass. 399, tax title was held to be valid. Counsel for 4 Am. St. Rep. 323, 15 N. E. 641; Tibbetts v. Mrs. King in writing declined this offer. Cate, 66 N. H. 550, 22 Atl. 559; Bacon v. The letter doing this made no counter Park, 19 Utah, 246, 57 Pac. 28. proposition, but referred to and did not ex- this, because the general principle, as depressly withdraw the previous offer of Mrs. clared in the Sheets Case, rests upon the King, if she were allowed the use of Mrs. ground that “the rent is the object of the Kennedy's name, to conduct proceedings to parties and the forfeiture only an incident vacate the tax title. In addition the letter, intended to secure its payment; that the which was quite lengthy, expressly stated measure of damages is fixed and certain, the opinion of the counsel of Mrs. King to and that when the principal and interest be that the tax title was void and could be are paid the compensation is complete.” set aside. It insisted that Mrs. King would When the foundation upon which the be relieved by a court of equity from the doctrine is based is borne in mind it beforfeiture alleged to have resulted from her comes apparent that it affords no ground for inadvertent omission to pay the tax, and be the contention that it is applicable to a case sides stated various grounds which, it was where the failure to perform a covenant to deemed, placed Mrs. Kennedy in a position pay taxes has led to a tax sale, ripening where she could not, as against Mrs. King, into a prima facie irredeemable title held ask to be protected against the risk, if any, adversely to the lessor. In other words, the of the outstanding tax title held by the doctrine lends no support to the proposiKanns. These grounds were, in substance, tion that a court of equity can require an that the tax certificate had been bought by owner to risk the loss of his property by

We say

compelling him to engage in a contest in- , the contentions is to assume that principle volving the validity of an irredeemable tax as established and to predicate rights upon sale, for the purpose of endowing the tenant that hypothesis. In other words, in subwith the right, if the tax title be held in- stance, by a petitio principii, the proposivalid, to pay the taxes and thus be relieved tions urged treat the outstanding tax title of a forfeiture. To extend the principle to as void and proceeded to demonstrate the such a degree would be destructive of rights right to relief under that assumption. of property, since it would subject every- There being, then, no foundation for the one who made a lease of his property, con contention that it was within the ordinary taining a covenant by the lessee to pay power of a court of equity to relieve from taxes, to the hazard of the loss of his title, the forfeiture, we come to consider whether if only the tenant chose to violate the the case as made by the record is brought covenant, and thus give rise to the coming within the general authority of a court of into existence of a tax title prima facie equity to relieve in cases of fraud, accident, valid and irredeemable in character. And or mistake. We put out of view, for ulterior the force of these considerations is not consideration, the question of fraud, and avoided by the reasoning which led the court therefore presently examine only the conbelow to its conclusion, or by the argu- tentions as to the existence of the elements ments at bar advanced to support that con- of accident or mistake. In considering this clusion.

subject two propositions are obvious: First, Thus, the court, in its opinion, consider where the forfeiture from which relief is ing the paramount issue to be the validity sought has been occasioned by the gross of the tax sale, first disposed of that ques- negligence of the person claiming to be retion, and, concluding that the sale was void, lieved the default so occasioned is not one proceeded to determine its power to grant brought about by accident or mistake; and, relief from the forfeiture, upon the hy-second, that even where accident or mistake pothesis that there never had been a tax has been shown, especially in the absence of sale, that the taxes were still due, and could culpability or fraud on the part of the other be paid, and that the tenant was willing to party, a court of equity will not grant repay them. But thus to contemplate the lief from the forfeiture, unless it can be controversy was to assume the very ques. done with justice to that party. tion for decision; that is, the power of a Referring to its opinion on the appeal court of equity, in order to relieve from a from the order granting an injunction forfeiture, to endow a tenant with the right pendente lite, and in effect reiterating the to create, at the risk of the owner, a pri- view therein expressed, that the averments mary controversy, viz., to compel the owner of the bill justified the relief prayed, the against his will to jeopardize his title by court, in its opinion on the final hearing, testing the validity of the irredeemable tax said: sale, ,-a hazard which the owner was desir- “But the testimony makes it more plain ous of avoiding. The paramount issue was than even the allegations of the bill of comnot, as assumed, the invalidity of the tax plaint did, that she is entitled to the relief sale as a mere abstract question, but, we which she asks. The testimony shows repeat, was the right of the tenant to in- quite conclusively that, while the lease revoke at the hands of the court a determina quired the annual taxes on the property to tion of that question at the risk of the be paid by the lessee, yet the invariable owner. And this view is not changed by custom of the lessor down to the time of the saying that the decision at the instance of default had been to demand and receive the the tenant as to the validity of an irre- amount of the taxes from the lessee, and deemable tax title, held by a third person, to pay the taxes herself by her own agents. was an incident to the right of the tenant For the taxes of the second half of the year to be relieved from the forfeiture, for to so 1898, in connection with which the default say is but to destroy the foundation upon occurred, the lessor failed for some reason which the right to relief from the forfeiture to make the usual demand for the money rested; that is, the ability of the tenant, wherewith to pay the taxes; and the lessee when applying for relief, to make complete was in the midst of financial trouble and compensation. And the misconception of distress caused by the recent death of her the general doctrine just pointed out per husband, who had been the lessee down to vades the argument at bar of the appellee. the time of his death. The record shows Thus, while no authority is referred to sus- to us quite plainly that the default of the taining the right of a tenant, to test the lessee was excusable under the circumvalidity of an outstanding prima facie ir- stances; and that no harm would be done redeemable tax deed, caused to exist by the to anyone by her relief from the nominal default of the tenant, the ultimate result of forfeiture which she has incurred."

By this reasoning it was assumed the to which

to which we have just above referred, case was brought within the grounds of re- and it was alleged that by its terms Mrs. lief for accident or mistake upon two in- Kennedy was notified "that the failure to ferences, both treated as alleged in the bill pay the taxes was simply an oversight, and established by the testimony; first, the which was being remedied at the time the prior practice of the lessor in calling upon notice of refusal to accept the rent was rethe tenant to hand her the money to pay ceived."

ceived." True it is that the testimony the taxes and then herself paying them; shows that prior to the death of Henry and second, the failure of the lessee, after King, Jr., in August, 1897, the lessor was in

, this practice was discontinued, to call to the habit of calling upon the tenant for the mind that the tax was due and payable, amount required to pay the tax then due or owing to her disturbed state of mind at that about to become due, in order that she particular time. In the argument at bar In the argument at bar might herself pay them.

might herself pay them. True also is it reliance is principally rested upon the first that Harry King, in testifying, made stateof these grounds, and indeed it is insisted ments from which the inference can be dethat the testimony goes much further than duced that in conducting the business for implied by the court below, and demon- his mother, after the assignment of the strates that the conduct of the lessor was lease subsequent to the death of his father, such as to mislead the lessee, and thereby he relied upon a continuance of this pracestop the former from asserting the forfeitice. But it must be borne in mind these ture.

statements were made after the death of Let us consider separately the two Mrs. Kennedy, who died on the day the bill grounds: First, accident or mistake as en- was filed, and their inaccuracy is, we think, gendered by the course of dealing of the conclusively shown by the mode of dealing lessor, and, second, accident or mistake aris. following the assignment of the lease and ing from oversight, the alleged result of the the conduct of the tenant in respect to the particular circumstances surrounding the matter of taxes. The very first payment of tenant at the time of the failure to pay the taxes made after the death of Henry King taxes. As to the first ground it would seem was made by the tenant herself, paying the to be an afterthought, since it was not sug- taxes at the request of Mrs. Kennedy, and gested in the correspondence between the retaining the receipt. Nearly three years of parties immediately preceding the litigation default followed, without any payment of that Mrs. Kennedy by her conduct had in taxes by the tenant whatever and without anywise led to the default of the tenant. any inquiry being made by the tenant on To the contrary, that view was excluded, the subject. When in July, 1900, the two for in the letter written to Mrs. Kennedy, defaulting instalments of the tax for 1900 dated October 8, 1901, asking authority to were paid by the tenant they were not paid use her name in proceedings to be brought at the instance of Mrs. Kennedy, or beby the tenant to cancel the tax sale, the at- cause of any request upon her part, but betorneys of Mrs. King said:

cause it "occurred” to the tenant to do so. “We assume that you are aware that when they were paid the payment em your tenant has always paid the taxes upon braced interest and penalties, for which the the demised premises, and the failure to tenant could not have deemed herself repay the one made the basis of the notice sponsible if the course of dealing asserted was an oversight, caused by the death of had been relied upon. Despite this fact, no Mr. Henry King, Jr., which was being proof whatever was made of any notice to remedied at the time your notice was re- Mrs. Kennedy of the fact or of any claim ceived."

being made against her in the premises. And although it would seem that the And the same thing is true as to the pay. court below assumed to the contrary, the ments made in May, 1901, of the current fact is the bill contained no averment justi. taxes and some of the overdue instalments. fying the default in paying, upon the theory Besides, when these payments were made that it had been induced by the conduct of the property had been sold for the overdue the lessor. To the reverse it was specifical- instalments, but was yet subject to redemply stated in the fifth paragraph of the bill tion, and the statutory interest of 15 per that the alleged single default in the pay- cent was paid by the tenant without any ment of taxes arose "wholly through over- intimation of a claim of any character sight and inadvertence,” without in any against the lessor. Indeed, the conduct of wise charging that the conduct of Mrs. Ken the tenant in respect to the very tax for nedy was in whole or in part the cause of which a forfeiture was asserted is absothe oversight or inadvertence. Besides, in lutely inconsistent with the theory that she the eleventh paragraph of the bill, ex- deemed that her landlord was the cause of plicit reference was made to the letter | the default, for, when notice was received: by the tenant from the purchaser at the use made of the certificate. Concerning tax sale of the outstanding irredeemable tax these matters the court below said: certificate, more than two months and a

“We find no evidence whatever in the half elapsed before the purchase of the record of any fraud or wrongdoing percertificate by Cohen, and no complaint was petrated by anyone concerned. We only made to the landlord that she had neglect-find the evidence of a situation created ed to demand payment of the tax, and that by a keen commercial rivalry and shrewd in consequence the default and loss was oc- management, wholly untainted by wrong. casioned, but a negotiation was opened to doing, but still a situation from which purchase the outstanding title for the ac. injury is threatened to the complainant's count of the tenant alone. When this line rights of property, and against which she of conduct is considered in connection with is entitled to be relieved. For that there the fact, already stated, the conclusion is was an arrangement between the defendants inevitable that the suggestion that the whereby the tax certificate was to be used conduct of the landlord had induced the to oust the complainant from the property, failure to pay, first made after the death of we think is too plain to be reasonably quesMrs. Kennedy, is without foundation. tioned. There was, undoubtedly, a con

And the facts which we have just stated currence of effort for that purpose; perhaps also render it impossible to conclude that no formal combination or preconcerted the nonpayment of the tax was due to a action. But it matters not what we call it. mere temporary oversight, and not to gross The undoubted fact is there was co-operanegligence. How can an inference of tempo- tion between the defendants to use the tax rary oversight be possible when the long certificate to the detriment of the comperiod of the failure by the tenant to pay plainant's rights; and there being such coany tax whatever is borne in mind, and operation, the defense of multifariousness when we also consider the delay of more cannot prevail. The one purpose of the bill than two months and a half which took is to relieve the complainant from the effect place after knowledge was conveyed, by the of this tax certificate and of the tax title letter of Wiltsie, of the outstanding ir-based upon it.” redeemable tax certificate?

For the reason that we agree with the The fact that the tenant was a mer- | finding that there is no evidence whatever chant, and of necessity kept mercantile of any fraud or wrongdoing by anyone conbooks, is significant. The mind cannot concerned, we are constrained to disagree with ceive of adequate entries being made of the the conclusion that the complainant was en

which were belatedly paid, which titled to relief. We say this, because we are would not have at once suggested those of opinion that the relief awarded could which were unpaid. The inference fairly only have been justified upon the finding deducible from the letter to Wiltsie__"Un- that there was fraud and wrongdoing. We fortunately we have paid you quite a con

so conclude, because if it be accepted that siderable amount of money in the past for there was an agreement and combination as tax sales”-adds cogency to the irresistible to the certificate, entirely free from every inferences as to negligence.

element of fraud or wrongdoing, we fail to And even if the foregoing considerations perceive how an agreement of that charwhich establish the absence of accident or acter afforded ground for granting the remistake and demonstrate the presence of lief which was given. But, disregarding

, gross negligence are put out of mind, and mere forms of expression, and assuming accident or mistake be assumed, for the that the general finding that there was no sake of the argument, nevertheless, under limited to intentional as distinguished from

fraud or wrongdoing was intended to be the circumstances of the case, a court of

constructive fraud or wrongdoing, let us equity could not give relief. This follows since the relief sought could not be afford: acquisition and use made of the certificate,

briefly review the facts concerning the ed without subjecting the lessor to the peril in order to fix whether such a finding is at of contesting the validity of the outstand-all sustained by the record. Although we ing prima facie irredeemable tax title.

think it immaterial, as there was no eviWe come to the question which we hither. dence whatever tending to show that the to put aside for final consideration; viz., lessor or her attorney procured the purchase the alleged fraud. It, in any event, only of the certificate by Cohen, that subject involves a consideration of what took place may be put out of view. The irredeemable with regard to the purchase of the tax tax certificate was in the hands of and becertificate by Cohen as the agent of the longed to Wiltsie. He notified the tenant Kanns, and the circumstances surrounding that he held it more than two months and and connected with that purchase, and the l a half before the purchase by Cohen, and