Reed v. Reed

Grant, C. J.

(after stating the facts). The theory of the bill is that the foreclosure deed to defendant Reed is absolutely void, and that he could obtain no title, as against his co-tenants, by purchasing and foreclosing the outstanding liens. The deed was not void, but voidable. This is conceded by counsel for Mr. Reed, and they admit that timely proceedings in redemption by the co-tenants would have defeated his title. It was necessary for the protection of all that some one of the co-tenants should either pay or purchase these mortgages, or, if foreclosed by the mortgagee, protect their interests upon the sale by purchase, or redemption after sale. Mr. Reed was the owner of the undivided six-twelfths, and he chose to purchase and foreclose the liens. The law' gave him the right to do,this. The law also gave the right to his co-tenants to share in the benefits of that sale by contribution. They did not do this, but seek to impose upon Mr. Reed all the cost and risk. If the property should not sell for sufficient at tbe sale upon this decree to pay the amount of indebtedness, he will be out all his expenses, and has been subjected to the coats of this suit, while his co-tenants lose nothing and assume no risks. The law does not permit co-tenants to thus speculate with their common property. Law and equity deal with co-tenants after one of them, as *79 lie has the right to do, has purchased the outstanding liens •or titles. Before co-tenants can take proceedings to secure the.benefit of such purchase by another co-tenant, they must do equity, namely, tender or offer to contribute their ■proportionate shares of the amount paid in purchase of these outstanding liens. Freem. Co-Ten. § 154; 11 Am. & Eng. Enc. Law, 1083; Lee v. Fox, 6 Dana, 171 ; Brittin v. Handy, 20 Ark. 381 ( 73 Am. Dec. 497 ); Flagg v. Mann, 2 Sumn. 523 ; Buchanan v. King’s Heirs, 22 Grrat. 419; Mandeville v. Solomon, 39 Cal. 133 ; Wilmot v. Lathrop, 67 Vt. 671 ; Stevens v. Reynolds, 143 Ind. 467 ( 52 Am. St. Rep. 422 ). Co-tenants desiring to share in such purchase must move promptly; that is, within a reasonable time. The co-tenants in this case have not moved at all, except upon the theory that the purchase by the co-tenant was absolutely void, and that they were not ■subject to contribution. They have neither done, nor ■offered to do, equity.

Decree reversed, and bill dismissed, with the costs of Loth courts.

The other Justices concurred.