Dickerson v. Weeks
106 Miss. 804
Miss.
1914
Check Treatment
Smith, C. J.,

delivered the opinion of the court.

In 1898 Mrs. S. F. Diclierson died, leaving as her heirs several children, appellants herein, and her husband, A. L. Dickerson. She owned at .the time of her death the land here in controversy, which was then incumbered by a deed of trust executed to secure.the payment of the joint note by herself and husband for the sum of one hundred and seventy-five dollars. Shortly after, and during the year of her death, this deed of trust was foreclosed, the property purchased by the husband, A. L. Dickerson, and in October, 1902, he conveyed it to ■ ap-pellee. In October, 1911, nine years thereafter, this bill was filed by appellants, alleging that they, together with J. A. Weeks, were tenants in common of the land, and praying for a partition thereof. The chancellor granted the prayer of the bill on condition that appellants should first pay to .appellee a certain sum of money which he had expended in the payment of the debts alleged to have been due by their mother at the time of her death, and for certain improvements alleged to have been put by him' on the land, less rent for the time he had been in possession thereof. According to the contention of ap-pellee, at the time of the death of Mrs. Dickerson she owed debts aggregating several hundred dollars, -something over three hundred dollars of which was due to Weeks himself; that with the consent of appellants, A. L. Dickerson, their father, took charge of the land for the purpose of using and disposing of it, if necessary, in order to pay these debts; that with the knowledge and *811approval of appellants he, appellee, paid off the debts and advanced the money with which Dickerson purchased the land at the trustee’s sale, and that afterwa'rds, with the knowledge and approval of appellants, he purchased the land; a part of the consideration therefor being the amount due him for having paid off and discharged these debts of Mrs. Dickerson.

One of appellee’s contentions is that appellants, by not tendering to their father their pro rata of the money expended by him in purchasing the land at the trustee’s sale, have lost all right to share in the benefit thereof. The rule frequently laid down in other jurisdictions and by text-books is that the purchase of an outstanding title to the common property by one tenant in common inures to the benefit of himself and of his cotenants who elect within a reasonable time to avail themselves thereof. In this state, however, 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. In order for him to be barred from availing himself of such a title his delay must be accompanied by circumstances that estop him from so doing. When no estoppel arises, all that is necessary, in order that the tenant in common who purchased the outstanding title may be protected,-is that in a partition, or other proper proceeding, the common property be charged with a lien securing to him the repayment of the money expended by him in making the purchase. This seems to be the theory on which the cases of Wyatt v. Wyatt, 81 Miss. 227, 32 So. 317, Walker v. Williams, 84 Miss. 397, 36 So. 450, and Beaman v. Beaman, 90 Miss. 762, 44 So. 987, were decided, and is in harmony with the - rule applied by this court in analogous cases, as, for example, Watson v. Peebles, 102 Miss. 725, 59 So. 881.

The foregoing rule, however, does not necessarily protect tenants in common ag’ainst the sale of the' property by the cotenant purchasing the outstanding title, for in *812Smith v. McWhorter, 74 Miss. 400, 20 So. 870, it was held that, although a tenant in common who purchases an outstanding title to the common property will hold it as trustee for his cotenants, ‘ ‘ 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.” Appellants, Anna Johnson, Lige Dickerson, Minnie Bell Allison and Quitman Dickerson, were all adults at the time of appellee’s purchase, Quitman Dickerson, the youngest, being twenty-three years old. It follows, therefore, from the foregoing views that in so far as they are concerned the court below was in error in awarding them any share in the partition of this property, and therefore they cannot complain of .any condition attached to the award. V. A. Dickerson and Mrs. May Burrows having been minors at the time of appel-lee’s purchase, and having done nothing since, except remain inactive, have not lost their right to share in the property. The court erred, however, in charging them with any portion of the money paid out by Weeks in settlement of the debts alleged to have been due by their mother at her death. Conceding that they could have made themselves liable therefor, or rather have made it equitable to charge their shares of the property with the payment therefor by reason of having misled appellee in the matter, the evidence, both as to their having misled appellee and as to the fact of the alleged debts being really due by their mother, is too vague and indefinite to amount to proof thereof.

The note secured by the deed of trust under which the land was sold and purchased by A. L. Dickerson being the joint note of himself and his wife, and each, as between themselves, being 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 appellee by his purchase has succeeded.

*813Appellants V. A. Dickerson and May Burrows are entitled to an accounting in which, appellee should be charged with their proportion of a reasonable rent for the property for the time he has been in possession thereof, and credited with their proportion of one-half of the amount expended by A. L. Dickerson in the purchase of the property, with six per cent, interest annually thereon, amounts expended in the payment of 'taxes, with interest, and for permanent and not ornamental improvements.

Reversed and remanded.