Pennington v. Purcell, 110 So. 789

Pennington v. Purcell

110 So. 789 | Miss. | 1927

Lead Opinion

^* Corpus Juris-Cyc. References: Lis Pendens, 38CJ, p. 51, n. 51; p. 52, n. 55; Tenancy in Common, 38Cyc, p. 66, n. 71; p. 72, n. 84, 90 New. As to liability of cotenant to account for use and occupation or rents and profits, see annotation in 28 L.R.A. 829; 29 L.R.A. (N.S.) 224; 7 R.C.L. 836. The appellant, Pennington, appeals from a decree sustaining a demurrer to his bill filed for the purpose of determining the question of whether or not a deed of trust held by him on an undivided interest in certain lands was superior to the lien of one cotenant for use and occupation by another cotenant holding adversely.

The case, in short, is as follows:

The appellee, Mrs. E.M. Purcell, and one Joe B. Evans, were the owners in common of a certain tract of land. She owned about five-eighths of it and Evans the other three-eighths. Evans occupied all of the land and used it without paying Mrs. Purcell for the use of her part of it. A partition suit was filed and the land partited, and the court decreed that Evans was due an amount to Mrs. Purcell for the use of her portion of the land, and that a *550 lien be impressed upon Evans' part to secure the payment of the amount due Mrs. Purcell.

The commissioner sold the land for partition, and it seems that he failed to pay the cost of the partition proceedings out of the funds realized from the sale. Mrs. Purcell bought the land under the partition sale. The three-eighths interest of Evans was subsequently sold again under an execution for the costs of the partition proceeding, and Mrs. Purcell purchased the land at this sale.

After the petition for partition was filed and a lis pendens notice of the partition proceedings was filed, the appellant, Pennington, obtained a deed of trust from Evans to secure the payment of an indebtedness due him by Evans, and the three-eighths undivided interest in the land involved in this suit was conveyed in the deed of trust to secure the indebtedness. The court, in the partition proceeding, adjudged that Evans was indebted to Mrs. Purcell for the use of her part of the land, and declared the amount due her a lien on his three-eighths interest in the land.

Now the question arises, first, was the deed of trust superior in right to the lien impressed upon the land by the decree of the court? Or was the right to an equitable lien in favor of the cotenant Mrs. Purcell against Evans' interest in the land, superior to the lien of the deed of trust? And, second, was the title obtained by Mrs. Purcell under the execution sale for the court costs superior to the lien of the deed of trust?

It is contended by the appellee, and it seems that the chancellor decided the case upon this theory, that the equitable lien of the cotenant Mrs. Purcell against the interest of Evans, the adverse holder, for the use of her part of the land, was prior and superior to the deed of trust taken after the partition suit was filed, and of which the appellant, Pennington, had actual and constructive notice. *551

We think the court was in error in so holding, because there was no lien in favor of Mrs. Purcell against the interest of Evans in the land until the lien was impressed by the decree of the court; and the deed of trust had been given and duly recorded before the lien was decreed against the land by the court in the partition proceedings.

There was an inchoate right to an equitable lien by the cotenant Mrs. Purcell against the cotenant Evans for the use of the land, even though the bill did not specifically seek a lien, but the right did not ripen into a lien until after it had been established by the decree of the court. Therefore the lien of the deed of trust was prior and superior to the lien subsequently impressed against the land by the court. This question has been settled in our state by the following cases: Burns v.Dreyfus, 69 Miss. 211, 11 So. 107, 30 Am. St. Rep. 539;Morgan v. Long, 73 Miss. 406, 19 So. 98, 55 Am. St. Rep. 541. The text-books also announce this rule. 7 R.C.L., p. 836; 38 Cyc., p. 72.

The sale of the three-eighths interest under execution for the costs of the partition proceeding at which Mrs. Purcell again bought Evans' interest in the land may or may not have been a valid sale; we do not decide, but, conceding it to be a valid sale, we are of the opinion that whatever title the purchaser secured by this sale was not superior to the lien of the deed of trust, but was subject to the priority of the deed of trust. Therefore we conclude that the appellee, Mrs. Purcell, acquired no rights in Evans' interest to the land that were superior to the rights of the appellant under the deed of trust.

It being our view that the deed of trust involved in this case was a superior lien over the claims of the appellee, the lower court was in error in sustaining the demurrer to the bill, and the decree therefore is reversed and the cause remanded, and appellee may answer the *552 bill within thirty days after the filing of the mandate in the lower court.

Reversed and remanded.

Addendum

ON SUGGESTION OF ERROR. Appellee files a vigorous suggestion of error, in which it is insisted that appellant's deed of trust was subordinate to the right of appellee, because it was taken during the pendency of the partition proceedings, and consequently taken subject to the right of the appellee.

The bill for partition filed by the appellee did not state, in its body, that the appellee claimed a lien upon the lands involved, or was entitled to a lien; neither did the prayer of said bill pray that a lien be declared upon the property as a part of the relief, but merely prayed for an accounting and for a personal judgment. We think it was necessary for the appellee in the original bill to have stated therein that she was entitled to have a lien declared, and to pray for that relief, and that a purchaser or incumbrancer buying pendente lite may deal with the bill as it exists at the time, and that it is not required to take notice of any undisclosed equity which may, by subsequent amendment, be brought into the bill.

The statement in the present bill bearing upon notice of the pending suit is that J.B. Evans conveyed to the defendant C.J. Ward, trustee, the following real estate (describing it), which said interest of twenty-nine one hundred-twelfths in said land was represented to be free from any litigation, and to have a clear and undisputed title thereto. And he also conveyed an additional three-eighths interest in said described land which he represented to be in litigation with Mrs E.M. Purcell in this court. The bill, as it then stood, did not contain the statements above mentioned, nor does the record show the amendment by which it was amended to show the facts; but the chancellor decreed in favor of Mrs. *553 Purcell in the original suit an amount, and in his decree declared a lien upon the lands involved to pay such amount.

At the time Pennington took this deed of trust, there was nolis pendens filed, and no decree had been entered. The main opinion was in error as to when the lis pendens notice was filed. It was filed by the sheriff when he levied execution on the 25th day of May, 1922, more than two years after the deed of trust was given. For these reasons, we are of the opinion that the suggestion of error should be overruled.

Suggestion of error overruled.