Dickerson v. Weeks

1. TeNanoy in Common. Purchase of outstanding title. Bights of Go-tenant. Accounting. No mere lapse of time will bar one tenant in common from availing himself of the benefit of the purchase by another of an outstanding title to the common property, unless there are such circumstances as estop him from so doing, but in a partition the common property should be charged with a lien securing the purchasing tenant in the repayment of the money expended by him in making the purchase. 2. Tenancy in Common. Purchase of outstanding title. Bights of co-tenant. Although a tenant in common who purchases an outstanding title to the common property will hold it as trustee for his cotenants, yet adult cotenants with knowledge or sufficient information to charge them with knowledge, must elect within a reasonable time to hold the purchaser as a trustee, otherwise those who acquire rights in the property from him in good faith will be protected. 3. Tenancy in Common. Purchase of outstanding title. Liability of cotenants. Where the note secured by the deed of trust under which land is sold and purchased by a tenant in common was the joint note of himself and wife, and each, as between themselves was only liable for one-half thereof, he was only entitled to charge the common property with the payment of one-half thereof, to which right the purchaser from him succeeds. 4. Tenancy in Common. Accounting. Where an accounting is had in partition proceedings between co-tenants, and one purchasing from another cotenant, who purchased the common property at a foreclosure sale, the last purchaser should be charged with his proportion of a reasonable rent for the property for the time he has been in possession thereof, and credited with his proportion of the amount expended in the purchase of the property by the cotenant, with six per cent, interest annually thereon and also with amount expended for taxes, with interest and permanent and not ornamental improvements made by him.

Appeal from the chancery court of Attala county. HoN. J. F. McCool, Chancellor. Partition suit by V. A.. Dickerson and others against J. A. Weeks. From a conditional judgment for complainants, they appeal. The facts are fully stated in the opinion of the court. "Since the note secured by the deed of trust to J. A. Davis, trustee, was the joint note of A. L. Dickerson and his wife, did he, A. L. Dickerson, acquire any title at all by his purchase at the foreclosure sale; did he thereby simply redeem the land from a lien securing his own debt?” It is the contention of the appellants that A. L. Dickerson, by his said purchase under the trust deed, and from J. A. Davis, trustee, did not acquire any title to the joint property. This court has heretofore passed upon this identical point, and in each case, and uniformly has held that a joint tenant cannot acquire title to the common property by any such sale. Wyatt v. Wyatt, 81 Miss. 227; Smith v. McWhorter, 74' Miss. 400, 20 So. 870'; Wother v. Williams, 84 Miss. 397; Beamon v. Beamon, 44 So. 987; Smith v. McWhorter, 74 Miss. 400; Walher v. Williams, 84 Miss. 392; Wyatt v. Wyatt, 81 Miss. 219; Robinson v. Lewis, 68 Miss. 69; Clark v. Ramey, 72 Miss. 151; Ham-bies v. Harrison, 80 Miss. 118. This brings us to the third point indicated by this court for additional briefs, which is in words as follows: “If the preceding question should be answered in the affirmative,- have or not the cotenants unreasonably delayed to assert their right to an interest in the land?” This leads to the question as to whether or not the appellants have delayed in ascertaining their rights so long that they are barred by the statute of limitations. As will be observed by an inspection of the petition filed herein and it is uncontradicted, at the time A. L. Dickerson purchased the lands under the deed of trust, a number of the appellants were minors, and that at the date of his deed to J. A. Weeks, on October 11, 1902, the appellants, V. A. Dickerson and Mrs. May Burroughs had not attained their majority. It will further be observed that this petition for partition was filed in January, 1911, and at the date of the filing of the said petition, J. A. Weeks had held the lands herein under his said deed from A. L. Dickerson for a period of eight years and three months approximately. Section 2734 of the Code of 1892 (Section 3094, Code of 1906), provides that ten years adverse possession vests in the occupants complete title, saving to persons under disability. In the case of Hill v. Nash,' 73 Miss. 849, which is a very elaborately considered case, where laches, estoppel and tiie statute of limitations was pleaded and relied upon, Jndge Wood, delivering the opinion of the court, among other things said: “Finally it is contended by counsel for appellant that as ten years, lacking only four days, intervened between the death of N. P. Ragan, the father, and the date of the institution of this suit, a court of equity, in the exercise of its own inherent powers, independently of the statute of limitation, may and should refuse relief, on the ground of discouraging stale claims, or gross laches, or unexplained acquiescence in the assertion of an adverse right. Much, and excellent authority is cited by counsel in support of this proposition, but it has been decided that there is no such thing as a stale claim, properly so called in this state, and, by positive law, the statute of limitation is to be applied in our courts of equity as in our courts' of law. With us, no claim is barred, until the limitation of the statute has accrued. Code 1892, sec. 2731.” It, therefore, necessarily follows that unless the ap-pellee, J. A. Weeks, has adversely held the lands in controversy for a period of ten years the appellants are not shut out and precluded from sharing in the lands in controversy. Under section 2444 of Code of 1892, and sections 2762 and 2784 of Code of 1906, only the interest of the grantor is passed by a deed. Therefore, in this case, the deed of Dickerson to Weeks only carried with it Dickerson’s interest in the land, to wit: a one-seventh interest thereof. See, also, Knogle v. Brown, 82 Miss. 611; Walker v. Williams, 84 Miss. 398; Hignite v. Hignite, 65 Miss. 447. Adverse possession, to be available by one tenant in common as against his cotenant, must be shown to such an extent as amounts to a complete ouster, such as would have justified the cotenants in bringing a suit in ejectment. Bentley v. Gallaban, 79 Miss. 302 and cases cited: Alsobrook v. Eggleston, 69 Miss. 833; Hay v. Davis, 64 Miss. 253; Eastman & Gardner v. Hinton, 86 Miss. 604. This brings us to the last point, concerning which additional briefs were desired, which is in words and figures as follows: £ ‘ Should the last preceding question he answered in the affirmative, does it not follow that appellants have lost any right they may have had to share in the land; and if so, what harm was done them by permitting them to share in a partition thereof, provided they first repaid appellee the amount of the debts left by their mother and paid by him, conceding that they were in fact, in no way responsible to him therefor.” The cases of Wyatt v. Wyatt, Walker v. Williams and Beamon v. Beamon, swpra, all carefully considered cases from this court, hold in the express language of the court, that a tenant in common, who purchases under the trust deed of the deceased ancestors through whom all acquire title, does not thereby acquire a greater interest in the lands than he already held, and that he holds- same, subject to the price paid, for the use and benefit of his covenants. Therefore A. L. Dickerson by his purchase at the foreclosure sale,' did not acquire any title to the lands in controversy other than he already had, and he held the lands as trustee for his children. The second proposition concerns the following: “If, by purchasing at this trustee’s sale, A. L. Dickerson did acquire a title to the property which inured to the benefit of his eotenants, was it not incumbent upon them, within a reasonable time after reaching maturity, to pay, or tender payment, of their share of the amount expended by him in making his purchase, in order to avail themselves thereof.” We answer this in the affirmative. In 23 Cyc. 492, it is set forth that in joint tenancy such a purchase will inure to the joint benefit of the purchase and his coten-ants, providing that the other joint tenants elect within a reasonable time to avail themselves of such adverse title, and contribute their ratable share of the expense of acquiring it; citing Brittin v. Hwidy, 20 Ark. 381, 73 Am. Dec. 497; Wears v. Van Meier, 42 Iowa, 128, 20 Am. St. Eep. 616; Sneed v. Atherton, 6 Dana (Ky.) 276, 32 Am. Dec. 70; Bossier v. Herwig, 112 La. 539, 36 So. 557; 17 Am. & Eng. Eney. of Law (2 Ed.), 679; Stark-weather v. Jewner, 216 U. S. 524, 54 Law Ed. 602; Middleton v. Newport Hospital, 1 L. E. A. 191; Calhoun v. Delphi & M. B. Co., 8 L. E. A. 248; Coffey v. Emigh, 10 L. E. A. 125; Pratt v. Carroll, 3 L. Ed. (U. S.) 627; Hammond v. Hopkins, 36 L. Ed. (U. S.) 135; Felix v. Patrick, 36 L. Ed. (U. S.) 720, and Abraham v. Ordway, 39 L. Ed. (U. S.) 1037. The third proposition concerns the following: “If the preceding question should be answered in the affirmative, have or not the cotenants unreasonably delayed to assert their rights to an interest in the land? If thirteen years is not an unreasonable time for co-tenants to exercise their rights, then there should hardly be any limit at all. Stevens v. Reyonlds, 143 Ind. 467, 52 Am. St. Eep. 433; Seymore v. O’Keefe, 44 Conn. 128 and 131. We accordingly assert that the cotenants have unreasonably delayed to assert their rights to an interest in the land. Answering the fourth proposition, we say that appellants have lost all right which they may have had to share in the land, and accordingly there was no harm done in the chancellor’s permitting them to share in the partition thereof, providing they first did equity by repaying to Weeks the amount of the debts left by their mother. It is evident that Code 1906, section 3525, reciting that controverted title and all equities shall be disposed of by the chancery court in a partition suit, was intended to mean that the equities should be disposed of before the sale (or partition) and not thereafter. And in this case the chancellor correctly required the appellants to do equity trying to carve up the land among themselves or having it sold for - division of proceeds.