This is a suit in equity by several co-tenants against another co-tenant for title.
Peter Hinters died in 1877, the owner of a lot in the city of Independence, on which he had a small house and in which he had for many years carried on the barber business and also ■ the business of an insurance-agent. The lot was incumbered by a deed of tsust to secure a debt of $400 then past due. He also owned another parcel of property called the home place in which he resided. He left surviving him seven children, all of whom were minors exсept Julius Hinters who was then about the age of twenty-one years. Julius carried on the barber shop and cared for the children as his father had done. The barbershop property was sold under the deed of trust and Mr. Smith, the ■ holder of the note, became the purchaser on the seventh of January, 1879. On the next day Smith quitclaimed the lot to Julius who paid therefor the amount of the debt and costs оf sale and perhaps some accrued interest. The property was then worth frc*m $2,500 to $3,000; and the evidence bhows that the sаle was made at 'the request, of Julius
After this sale the children continued to reside in the home place and Julius carried оn the shop as before until 1883, at which time he married and the children then separated. He thereafter collected rents' frоm the home place. In 1884, he made a mortgage upon the barber-shop property to secure $2,200 borrowed of the сounty. The money thus borrowed he used in building on this lot. He died in 1887 leaving one infant child.
The plaintiffs are the six brothers and sisters of Julius, and the defendаnts are his child and the administrator of his estate.
1. Tenants in common occupy a confidential relation to each other, and because of this relation there is an implied obligation on the part of each to sustain and protect the common title. It is, therefore, a general rule that if a tenant in common buy up an outstanding title or incumbrance, the purchase will be deemed to have been made for the benefit of all the co-tenants, the other co-tenants being bound, however, to contribute their respective proportions of the consideration paid for the outstanding title or incumbrance. Freeman on Co-tenancy & Partnership [2 Ed.] secs. 151, 156; Allen v. DeGroodt,
2. This is in substance and еffect an action for tbe recovery of lands, and it requires ten years adverse possession even as against an adult рerson to constitute a bar. There is no pretense that the statute of •limitations began to run prior to the date of the deed from Smith to Julius, namely the eighth of January, 1879. This suit was commenced ten years and seven months after that date. Conceding that the statute of limitations began to run on the eighth of January, 1879, still most of the plaintiffs were minors at that time. Theresa was then fourteen, Maggie twelve аnd Tillie ten years of age. Being minors when the statute began to run, they had three years after they reached the age of twenty-one in which to sue. Revised Statutes, 1889, sec. 6767; Gray v. Yates,
3. The circuit court also erred in excluding the testimony of Charles Crysler. The witness stated that he was an attorney, that he was not the attorney of Julius Hinters, but was the attorney for the plaintiffs, that as the attorney for the plaintiffs hе had a conversation with Julius in his lifetime about the property. The plaintiffs then offered to show by this witness that Julius told him that he (Julius) would see that thе plaintiffs got their share of the property as soon as he could sell it, but the court excluded the evidence on objeсtions interposed by the defendants.
The evidence was no doubt offered to show that Julius did not claim the property to the exclusion of his brothers and sisters, and that his possession was,
The testimony seems to have been excluded because of the death of Julius. The witness was not a party to any contract or cause of action at issue on and trial, nor was he a party to the suit. The statute excluding one party to the contract or cause of action on trial when the оther party thereto is dead has no application whatever to this witness. It was certainly competent to show declarations and statements made by Julius to the effect that he did not claim the property as against his brothers and sisters, and this witness was perfectly competent to prove such declarations. It was held, it is true, in Williams v. Edwards,
4. It may be well doubted whether the defendants made out a case of ten years adverse possession as to any of the plaintiffs; but, as the court excluded competent and very material evidence bearing upon this issue, we say no more as to this point at this time.
The judgment is reversed and .the cause remanded -for new trial.