Harrison v. Harrison

Campbell, J.,

delivered the opinion of the court.

Appellant did not acquire a title, by her purchase at the sale for taxes, which she can assert against her cp-tenants, but her purchase enured to the benefit of the co-tenants, subject to her claim to be reimbursed for her outlay to save the title for all. That the sale for taxes occurred in the lifetime of the tenant for life does not alter the case. A valid sale for taxes would have defeated the expectancy of the remainder-men by transferring the fee; and if appellant prevented this by acquiring title at the sale for taxes, for the common benefit, the cost to her of doing this should be made a charge on the common property thus saved. This is true, also, as to taxes on the property in which the I’emainder-men had an expectancy, paid by appellant in the lifetime of the tenant for life. Taxes were a lien on the property, and, if not paid, it was liable to be sold, whereby the rights of the remainder-men would have been defeated ; and if the tenant for life did not pay the taxes, and appellant did, and thereby saved the estate for the remainder-men, the cost to her of doing this is a charge on the common property. It is true that the taxes should have been paid, as they became due, by the tenant for life, who was in the possession and enjoyment of the estate; but they were not, and appellant had a right to anticipate and prevent a sale for taxes by paying them. The fact that appellant lived with the tenant for life did not impose on her any obligation to pay the taxes, nor deprive her of a claim to contribution by her co-tenants in remainder to reimburse her for paying them. Appellant resided with the tenant for life by her permission, and in her right, and not by virtue of any interest in herself. Her interest was in expectancy, and not in possession. The life-tenant had the possession, and the right to permit any one to share it with her, and such sharing of possession did not alter the relation of appellant to the estate. In so far as appellant received of the proceeds of the common property with which to pay taxes, she is to be considered as reimbursed; and as against her claim for payment of taxes, she is chargeable with all that she has real *179 ized from the income of the property, and for the reasonable rental of such of it as she herself exclusively occupied after the death of the tenant for life, and she is entitled to allowance for any expenditure during this time to put or keep the property in ordinary repair.

The objection that these equities between the co-tenants cannot be adjusted because appellant did not exhibit a cross-bill against appellees and the co-defendants of appellant, setting up her claim, is not sound.

Appellant answered the bill for a sale of the land for division of the proceeds, and presented in her answer, as an objection to the relief prayed, that she had acquired title to the land by her purchases at tax-sales ; and, besides this, that she had for years, before and since her said purchases, paid the taxes upon this land, and is entitled to reimbursement for that, if she is not entitled to hold the land as owner by virtue of her purchases at the sales for taxes. If it were true that appellant acquired title by her purchases at sales for taxes, that would bar the relief sought by the bill; but as it is held that her purchases at the sales for taxes enured to the benefit of the owners of the common property, but with a right to charge the property in her favor with the cost of all her outlay, to save it to the owners, it is proper to decree a sale of the property and a division of the net proceeds, after deducting all proper charges upon it; and it cannot be ascertained to what charges the property is subject, except by taking an account of the dealings of the parties with reference to the property, with a view to a full adjustment of all the equities between them growing out of their several relations to the common property. Arnold et al. v. Miller et al., 26 Miss. 152 , and cases cited; Chamley v. Dunsany, 2 Sch. & Lef. 690; Swan v. Swan, 8 Price, 578; Green v. Putnam, 1 Barb. 500 ; 1 Story’s Eq. Jur.,sect. 655.

Appellant is not entitled to charge the common property with any claim she had against the tenant for life. It is only where she advanced money for the preservation of the title *180 of the property — which, but for such advances, would have been liable to be lost to the co-tenants — that she is entitled to have the property charged with a lien for her reimbursement. She is entitled to reimbursement for the taxes paid by her during the tenancy for life, only because it appears that the tenant for life did not pay them, and could not do so.

The principle is, that co-tenants, such as these, sustain to each other a relation of trust, because of their common interest ; and while one cannot act for his own selfish interests in hostility to the common interest, one of the co-tenants who does what is needful for the protection of the common interest is entitled to charge the common property with the cost of the benefit. But the denial of the right of one tenant in common to pursue his own interest, in disregard of that of his co-tenants, as to the property held in common, would prohibit one of the tenants in common of an estate in expectancy from discharging a burden on the estate in the hands of the tenant in possession, except where it is necessary to prevent a destruction of the expectancju

Decree reversed, and cause remanded to be proceeded with in accordance with this opinion; but the decree shall stand and be affirmed in so far as it directs a sale of the property and bringing into court the proceeds, to be dealt with by the court; and the proceeds will be divided according to the rights of the parties in interest, after adjusting the equities between them, as indicated by this opinion.