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Cole v. Gray et al.
but were not, sold for the payment of said taxes; that on February 25th, 1889, the auditor of said county executed to said Abijah M. Jenkins, pursuant to said sale, a deed for all the real estate already described above, which is the only title ever held by said Jenkins at any time for said real estate, and under which he had nothing but a lien for the amount of his purchase-money, interest, penalties and subsequent taxes paid; that afterwards, and while said Cole was the holder of said judgment, he was desirous of procuring the title to said lot 4 in square 2 in Evans' and Gray's addition, and proposed to accept the same in satisfaction of said judgment, and agreed to do so, and to pay said Jenkins $15, in consideration of which Jenkins agreed to release his lien on said lot. The money was paid by said Cole, and to make said release effectual, and for no other purpose or consideration, the said Jenkins and wife executed to said Cole a quitclaim deed for said lot, but it was then and there expressly stipulated and agreed between the said Jenkins and said Cole that said release should in no manner impair the lien so held by said Jenkins as to the remainder of the real estate covered by said tax sale, nor should such arrangement in any way lessen the amount of money which said Jenkins was entitled to receive and recover from said Gray, and it was then and there expressly understood and agreed between said Cole and said Jenkins that the latter did not, by said transaction, in any manner sell, assign or transfer to said Cole any part of the lien so held by said Jenkins. But after said Cole received said deed for said last named lot, said Cole then declined to take from plaintiff, Gray, the said lot in satisfaction of said judgment, but demanded that plaintiff should, in addition thereto, convey to him other lots, and failing to agree in this said Cole proceeded to sell upon execution as first herein alleged. Afterwards, and
Cole v. Gray et al.
while Cole was still holding his sheriff's certificate for the portion of the real estate described therein as aforesaid, the year for redemption thereof not having expired, to wit: On March 5th, 1890, the said Jenkins and said Cole entered into an agreement by the terms of which the said Jenkins agreed to release and discharge his said tax lien as to said lots 2 and 3 in square 3, and lots 3 and 4 in square 6 in said Evans' and Gray's addition to the end that in the event that there should be no redemption from said sheriff's sale that the said Cole might gain title thereto by sheriff's deed free from any claim of the said Jenkins on account of said tax sale; but it was then stipulated and agreed between the said Jenkins and Cole that the said release should in no manner impair the said lien so held by him to the remainder of the real estate covered thereby, nor should said arrangement in any way lessen the amount of money which said Jenkins was entitled to recover from the said Gray on account of said tax sale, nor impair his right to recover the whole amount thereof from said Gray the same as if said arrangement had never been made; and in consideration. that said Jenkins would so relinquish his right to hold said lien upon the portion of said lots covered by said sheriff's sale, and for no other consideration whatever the said Cole agreed to and did pay to said Jenkins at the date of such agreement the sum of $50, and thereupon, in order to make said release effectual, the said Jenkins and wife executed to said Cole a quitclaim deed for the lots last herein described, and it was then expressly understood and agreed between said parties that said Jenkins did not thereby in any manner sell, assign or transfer to said Cole any portion of the lien held by said Jenkins, but the money paid by said Cole was only paid by him to induce said Jenkins to release the said lien upon the property in which Cole claimed an interest, and to induce
Cole v. Gray et al.
said Jenkins to look to the remainder of said lots for the payment of said lien; and the said Cole has no interest in nor lien upon any portion of said real estate described in his cross-complaint unless some such interest is conferred by said quitclaim deeds from said Jenkins; that on November 19, 1890, plaintiff redeemed from said tax sale, so made as aforesaid by paying to the said Jenkins the full amount of his said lien, including penalty, interest and taxes paid by said Jenkins, which redemption money was then accepted by said Jenkins in full payment of his said lien, and in full recognition of the fact that said tax sale was ineffectual to convey title for the reasons aforesaid, and to fully carry out said redemption, and make the same effectual, the said Jenkins and wife then executed to plaintiff a quitclaim deed for all the real estate purporting to have been embraced in said. sale, since which time the said Jenkins has neither had nor claimed any interest in, nor lien upon, any portion of said real estate, and by the payment of said lien to said Jenkins as aforesaid, the said real estate was entirely freed from any and all claims on the part of any one growing out of said tax sale, and no deductions whatever were made in such payment from the amount of such lien on account of any sum of money paid by said Cole to said Jenkins for the release aforesaid; that afterwards, and within the year allowed by law for redemption, to wit, on November 20, 1890, the plaintiff Gray redeemed from said sheriff's sale upon said Gramling judgment by paying the full amount of purchase-money, interest and costs, which sum of money was received by said Cole in full of said redemption, and at the same time the plaintiff paid the balance of said judgment which was also received and accepted by said Cole in full payment thereof; that said Cole paid the April installment of taxes in 1890 due upon the real estate de
Cole v. Gray et al.
scribed in his cross-complaint voluntarily, and with full knowledge that plaintiff intended to redeem from said. sales, which taxes so paid in April, 1890, amounted to the sum of $6.17. But before the commencement of this suit plaintiff offered to pay to said Cole the taxes which he had thus paid, with interest thereon, but said Cole refused to receive the same, and the plaintiff has ever since been, and still is, ready and willing to pay said sum.
Plaintiff therefore avers that cross-complainant has no title whatever to any portion of said real estate, nor lien thereon by purchase, payment or otherwise, on account of taxes or tax sales, and plaintiff therefore demands judgment for costs and other proper relief.
The sufficiency of this answer depends on the answer to the question: Can the terms and legal effect of a written contract or deed be contradicted, changed or modified by previous or contemporaneous oral negotiations, stipulations or agreements inconsistent with its terms? Because the substance and gist of the answer are that the deeds of conveyance from Jenkins to appellant Cole were not intended as conveyances either of the title or a transfer of the lien for taxes, but were intended, designed and agreed by oral contemporaneous stipulations to be nothing but a release of a lien for the taxes for which the property had been invalidly sold. It is true the answer does not aver that such previous or contemporaneous stipulations were oral, and not in writing, neither does it aver that they were in writing. In such a case it will be presumed that they were not in writing, but rested in parol. Carlisle v. Brennan, 67 Ind. 12; Langford v. Freeman, 60 Ind. 46; Goodrich, Admr., v. Johnson, by Next Friends, 66 Ind. 258. Prima facie the legal effect of the deeds from Jenkins to Cole
Cole v. Gray et al.
was to transfer the title to Cole if Jenkins at the time had title to the lots.
But under the averments of the answer to the crosscomplaint which, for the purposes of the demurrer are admitted to be true, he did not have title for the reason, among others, that it appears from such answer that the owner had personal property in the county at the time out of which the taxes might have been made. Ellis v. Kenyon, 25 Ind. 134; Ward v. Montgomery, 57 Ind. 276; Woolen v. Rockafeller, 81 Ind. 208; Earle v. Simons, 94 Ind. 573; Sloan v. Sewell, 81 Ind. 180.
When a tax deed proves ineffectual under the statute in force when this sale took place, to convey the title for any other cause than that the land shall not have been liable to taxation, or if liable, that the taxes thereon have been paid before the sale, or if the description is so imperfect as to fail to identify the land or lot, the lien which the State had for the taxes is transferred to the grantee, and vested in him, his heirs and assigns, as the direct legal effect given to the deed by the statute. Elliott's Sup., sections 2142 and 2144. Morrison v. Jacoby, 114 Ind. 84.
The burden of showing that the lots were not subject to taxation, or that they were not described so as to identify them, as well as that the taxes had been paid, is on the party who resists the enforcement of the lien, and in this case that is the plaintiff Gray. Morrison v. Jacoby, supra; Scott v. Millikan, 104 Ind. 75; Earle v. Simons, supra.
It is nowhere alleged in the answer that the description was not sufficient to identify the lots. Besides, it is not alleged that the defective description applied to all the lots. If only a part of the lots were so defectively described as that they could not be identified, the answer would be bad if it rested alone on the defective de