Sharon v. Tucker
STATEMENT BY MR. JUSTICE FIELD.

This is a suit in equity to establish, as matter of record, the title of the complainants to certain real property in the city of Washington, constituting a part of square No. 151, and to enjoin the defendants from asserting title to the same premises as heirs of the former owner.

The facts which give rise to it, briefly stated, are as follows: In 1828, Thomas Tudor Tucker died, seised of the premises in controversy. He had, at one time, held the office of treasurer of the United States, and resided in Washington, but at the time of his death he was a resident of South Carolina. The property did not pass under his will, but descended to his heirs at law. It does not appear that after his death any of the heirs took possession of the property, or assumed to exercise any control over it. In 1837 the square was sold for delinquent texes assessed by the city against 'the heirs of Thomas T. Tucker,' and was purchased by Joseph Abbott, then a resident of the city. The taxes amounted to $38.76, and the sum bid by the purchaser was $250. In 1840 a taxdeed, in conformity with the sale, was made to Abbott, purporting to convey to him a complete title to the square. It is admitted that the deed was invalid for want of some of the essential preliminaries in assessing the property, and in advertising it for sale. It does not appear, however, that the purchaser had any knowledge of this invalidity. Early in the following year, 1841, he took possession of the square, and inclosed it with a board fence and a ditch with a hedge planted on one side of it. It was a substantial inclosure, sufficient to turn stock and keep them away. He was a stable-keeper, and, in connection with this business, cultivated the ground and raised crops upon it in 1841. From the time he took possession until 1854 the square was inclosed, and each season it was cultivated. In 1854 he leased the square to one Becket for the period of 10 years at a yearly rent of $100. Becket took possession under his lease, and kept the ground substantially inclosed, and he occupied and cultivated it from that time up to 1862. In the fall of that year, soldiers of the United States, returning from the campaign in Virginia, were encamped upon the square; and, as it appears, they committed such depredations upon the fence, buildings, and crops that the lessee was obliged to abandon its cultivation. Abbott died in April, 1861, and by his will devised the square to his widow. In August, 1863, she sold and conveyed it to one Perry; and he kept a man in charge of the same, who lived in a small building which Becket had built and occupied during his lease of the premises under Abbott. In 1868 Perry sold the entire square to Henry A. Willard for the consideration of $17,600. He divided the square into small lots for buildings for residences, and upon one side of the square, fronting on T street, erected 12 substantial dwelling-houses, which have been since occupied up to the commencement of this suit. In 1872 Willard sold and conveyed a portion of the square, the premises in controversy, to J. M. Latta, trustee, for a valuable consideration; and from him the title has passed by regular conveyances to the complainants herein. From 1840 to 1863 the square was chiefly valuable for agricultural purposes; but since then, and especially of late years, its only value has been for buildings as residences, and has been so regarded by its owners. From 1840 up to the present time the taxes upon the property have been paid by Abbott and his successors in interest. None of the heirs of Mr. Tucker, nor any one claiming under the heirs, has paid or offered to pay any taxes assessed on the property; nor since that date, up to the commencement of these suits, have any of the defendants therein, or their predecessors in interest, asserted any claim to the property or interest in it, or attempted in any way to interfere with its possession or control. Soon after the sale to Perry, in 1863, the tax-deed was passed upon by eminent counsel in the District,-the late Richard S.C.oxe and James M. Carlisle,-and the title by it was pronounced by them to be indisputable. It was only a short time before the institution of this suit that the invalidity of the tax-deed as a source of title was ascertained. A desire to dispose of the property led the complainants to have an investigation made, and an abstract of title obtained. It was then discovered that they could not obtain any abstract of title which purchasers would accept, in consequence of certain defects in the assessment of the taxes, under which the sale was made and the deed to Abbott was executed. They were consequently embarrassed and defeated in their efforts to dispose of the property. To remove this embarrassment, this suit was accordingly brought by the complainants to obtain a judicial determination of the validity of their title, and injunction against the defendants claiming under the previous owner.

There was no substantial disagreement between the parties as to the facts, but the defendants insisted and relied solely upon the ground that a court of equity could afford no relief to the complainants, because they were not at the commencement of the suit in actual possession of the premises.

The court below, at special term, sustained this view, and entered a decree dismissing the bill. At general term it affirmed that decree, and to review this last decree the case is brought here by appeal.

C. J. Hillyer and J. H. Ralston, for appellants.

Henry Wise Garnett and Eppa Hunton, for appellees.

[Argument of Counsel from pages 536-540 intentionally omitted]

Mr. Justice FIELD, after stating the case, delivered the opinion of the court. 

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