25 Tex. 728 | Tex. | 1860
This suit was instituted by Felix G. and Noel G. Roberts, executors *729 of the will of Elisha Roberts, deceased, against the administrator and heirs of Frost Thorn, deceased. The petition of the plaintiffs alleged that on or about the 24th day of September, 1834, one Adolphus Sterne claimed to own the Cordova grant of land, in Nacogdoches county, containing about three and a half leagues of land, on which day he sold and conveyed to Frost Thorn, in his life-time, one undivided half of said grant; that about the 7th day of January, 1835 said Sterne sold and conveyed the remaining undivided one-half thereof to Philip A. Sublett; that on or about the 17th day of January, 1838, said Sublett sold and conveyed to Elisha Huberts, plaintiffs' testator, two-thirds of his aforesaid interest of one-half; and that the said Elisha Roberts retained his aforesaid interest during his life, and which, plaintiffs claim, yet belongs to his estate.
The petition further alleges that on or about the ___ day of ___, the title under which said Frost Thorn and petitioners, as executors, held said land, became exceedingly questionable; a great portion of the land having been located upon by others; that said Thorn had sold some portion of it, not leaving more than one league worth filing a certificate upon, which lay in two parcels, one-half of a league, or thereabouts, lying in the southeast corner of said tract, and the other half league or thereabouts, lying for northern boundary on the north line of said tract, between the northeast and northwest corners of said surveys. That the title to said Cordova grant, as derived through said Sterne, has never yet been adjudicated, but is still considered questionable and doubtful. That these two tracts or parcels of land were, on or about the ___ day of ___, by said Frost Thorn located upon in his own name, by virtue whereof patents have issued therefor to him in his individual name, from the general land office.
The petition asserts that the file, location and patents inure to the benefit of petitioners as executors, as well as to said Thorn, in proportion to their respective interests derived through said Sterne. Plaintiffs aver that they would gladly have joined said Thorn in relocating said tracts and have paid their proportion in carrying such location into a patent, but had no notice or intimation *730 of the intention of said Thorn to make said relocation. They aver that the value of the land certificate located as afore-said by said Thorn, did not exceed $500, and that the other expenses incident to said location of patents did not exceed $ ___, two-thirds of one-half whereof they offer to pay to the legal representatives of said Frost Thorn, deceased. By amended petitions they allege further, that before the location and patenting aforesaid, one Bailey, being a tenant on said land, was sued by said Thorn, of the pendency whereof he gave to plaintiffs' testator notice, and requested him to furnish counsel to assist in the prosecution of it, and that said testator, and after his death the plaintiffs as executors, complied with the aforesaid request. Thereupon they further say said Thorn abandoned and dismissed said suit, and immediately located and filed the certificates upon the land, without notifying plaintiffs or their testator of any such intention as before stated.
The petition prayed that two-thirds of the undivided half of said two parcels of land so located by and patented to the said Frost Thorn, deceased, be decreed to the heirs and legal representatives of said Elisha Roberts on payment by them of their proportionate rate of cost and expense afore-said incurred by said Thorn to obtain said patents; the amount thereof to be ascertained on the trial of the cause. The plaintiffs prayed also for partition of the respective interests in said land.
The defendants filed a general exception to the petition, which was by the court sustained, and judgment rendered accordingly against the plaintiffs. The plaintiffs assigned for error, the court's ruling above stated.
H. G. Wallace, for the appellants. The rule now established is that "tenants in common are jointly seized of the entire estate, and the possession of one is the possession of all." Story v. Saunders, 8 Hum. 663.
The entry of one tenant in common or parcener inures to the benefit of his co-tenant or co-parcener. Gill v. Fauntleroy, 8 B. Mon. 177. The theory of the law seems to be that each tenant in common is for certain purposes the agent of the other, *731 to guard the possession and defend the title of the lands thus held. "As joint owners they are not entitled to charge each other for the services rendered in the care and management of the joint property, unless by special agreement." Franklin v. Robertson, 1 Johns. Ch. 157. Each can bind the other by contracts for repairs and expenses incurred for the benefit of the common property. Peyton v. Smith, 2 Dev. Batt. Ch. 325.
"An agent undertaking any business for another is disabled in equity from dealing in the matter of the agency upon his own account, or for his own benefit."
"In chancery" says Duncan, J. (in the case of Heager's Ex'rs,
"Where an executor or guardian," said Kennedy, J. (in Galbraith v. Elder, 8 Watts, 81, 94, 95), "renews a lease, though with his own money, such renewal shall be deemed to be in trust for the person beneficially interested in the old lease."
"The same principle has been applied as between mortgagor and mortgagee." Holdridge v. Gillaspie, 2 Johns. Ch. 30.
"Courts of equity have said that if a trustee makes use of the influence which his situation enables him to exercise, to get a new lease, he shall hold it for the benefit of the cestui que trust. 1 Dow, 269; 1 Ch. Cas. 191; 1 Bro. Ch. Cas. 198.
"Indeed, it is a general principle pervading the cases, that if a mortgagee, executor, trustee, tenant for life, etc., who have a limited interest, gets an advantage by being in possession, or behind *732 the back of the party interested in the subject, or by some contrivance in fraud, he shall not retain the same for his own benefit, but hold it in trust. Lord Manners, in 1 Ball B. 46, 47; 2 Ball B. 290, 298; and see an analogous case in Hudson v. Wallace, 1 Rich. Eq. 2, 4, 7, in which it is said there is a good will in favor of the former tenant which gives him an interest in the renewal.
In the case of Green v. Winter, 1 Johns. Ch. 27, 36, it is said a trustee is not permitted to use the information he gains as trustee by purchasing for himself.
"The same principle is applied where a trustee buys in an adverse claim to the trust estate; the purchase accrues to the benefit of thecestui que trust, who, however, must reimburse the trustee to the extent of his outlay. McClanahan's Heirs v. Henderson, 2 Marsh. 388, 389; Morrison's Ex'rs v. Caldwell,
When one of two co-tenants purchases an adverse claim to land, it operates to the benefit of both, and if the title which he thus acquires is available, his co-tenant should in equity be made liable to him for half the price, or for a due proportion according to the extent of the interference. The rule is the same, whether the purchase be made before or after partition, and when a tenant in common has, after partition, purchased a conflicting claim, he should be allowed time to elect whether his whole purchase, or only the interference, shall be for the joint benefit, and to have a lien upon the land for the sum to be contributed by his co-tenant. Venable v. Beauchamp, 3 Dana, 328; Lee v. Fox, 6 Dana, 176; Thurston v. Masterton, 9 Dana, 234, 235; and see the authorities cited in 1 Lead. Cas. Eq. by Hare
In the case of Mathews v. Bliss, the facts disclosed are that the *733 plaintiff, in connection with others, was the owner of a certain vessel. The declaration charges that the other part owners of the vessel conspired with the master to obtain plaintiff's share of said vessel for an inadequate price. That said part owners had previously contracted with third persons for the sale of the entire vessel at a greatly enhanced price, which contract, plaintiff charges, was carefully concealed from him. The court, in delivering its opinion, say: "That tenants in common of a vessel, who are not employed jointly in the purchasing or building ships for sale, do not stand in such a relation of mutual trust and confidence toward each other in respect of the sale of such vessel, that each is bound in his dealings with the other to communicate all the information of facts within his knowledge which may affect the price or value." But they say that a different rule" may prevail in respect to any contract for the use or employment of the common property, in which relation, perhaps, they may be deemed to place confidence mutually in each other." The ground, then, upon which this case rests, is very intelligible. It goes upon the principle that when the means of information are equally accessible, and within the reach of both the contracting parties, and there has been no studied effort to conceal or misrepresent, an advantage obtained by the exercise of superior diligence will not be disturbed. There being no duty imposed upon the co-tenant to sell, he was under no obligation to disclose an advantageous prospective sale, which he would be able to make in the event of completing the purchase from the other part owner. An agent employed to transact a particular business is bound to keep his principal informed on all matters appertaining to that business. But in regard to other business of the principal not confided to him, he occupies the position of a stranger, and cannot be compelled to disclose extrinsic circumstances, which may enhance or detract from the value of the subject matter of the contract. The law having conferred upon each tenant the right of binding his co-tenant by contracts for repairs and beneficial improvements, imposes upon him the corresponding obligation of good faith, candor and accountability. The law also has made one tenant in common the agent of the other to make entry upon *734 the common possessions, and he holds as well by virtue of his cotenant's title as of his own. But no title is perfect which does not show a possession, a right of possession, or a right of property. If, therefore, an agent be appointed by act of the parties, or be created such by operation of law to hold possession of lands, he thereby incapacitates himself for purchasing in an outstanding title for himself in a third person, for the right of property and of possession ultimately draws the possession after it, and the conflict of interest and duty becomes apparent. The case cited by appellee from 1 Penn. R. is not a case in point. There the tenancy in common had been severed before the adverse title was purchased in, and the court in deciding the case, make special reference to that fact.
G. F. Moore, for the appellees. This was a suit by appellants to have decreed to them from appellees an undivided interest in a tract of land, upon the ground that their testator and appellee's intestate had been tenants in common of a void title under which the land had been once claimed, some time previous to Thorn's location and patent.
The rule contended for by appellants had its origin from the doctrine of trusts, and though it may apply to joint tenants and parceners, it does not to tenants in common, unless they became so by the same instrument, or there is some privity or mutual trust and confidence existing between them, under the peculiar facts of their case. Mathews v. Bliss, 22 Pick. 48; Smiley v. Dixon,
If the appellants were entitled to the relief asked, their petition should show that they had asked it within a reasonable time, or account for their delay. This they have not done. Lee Graham v. Fox, 6 Dana, 171, 176.
WHEELER, C. J. The question to be determined is whether, upon the case stated in the petition, the appropriation of the land in question by Thorn as vacant land inured to the benefit of the plaintiff's testator? In Van Horne v. Fonda, 5 Johns. Ch. 388, Chancellor Kent decided that one of two devisees could not *735 purchase an incumbrance on their joint estate and use it to sell the land, and to strip the other of his property. The chancellor said: "I will not say that one tenant in common may not, in any case, purchase in an outstanding title for his exclusive benefit. But when two devisees are in possession under an imperfect title, derived from their common ancestor, there would seem naturally and equitably to arise an obligation between them, resulting from their joint claim and community of interests, that one of them should not affect the claim to the prejudice of the other. It is like an expense laid out upon a common subject, by one of the owners, in which case all are entitled to the common benefit on bearing a due proportion of the expense. It is not consistent with good faith, nor with the duty which the connection of the parties, as claimants of a common subject, created, that one of them should be able, without the consent of the other, to buy in an outstanding title, and
appropriate the whole subject to himself, and thus undermine and oust his companion. It would be repugnant to a sense of refined and accurate justice. It would be immoral, because it would be against the reciprocal obligation to do nothing to the prejudice of each other's equal claim, which the relationship of the parties, as joint devisees, created."
Id. 407.
In accordance with these views, it seems to be well settled, that joint tenants and co-parceners stand in such confidential relations in regard to one another's interest, that one of them is not permitted in equity to acquire an interest in the property hostile to that of the other; and, therefore, a purchase, by a joint tenant or co-parcener, of an incumbrance on the joint estate, or an outstanding title to it, is held at the election of his co-tenants within a reasonable time, to inure to the equal benefit of all the tenants upon condition that they will contribute their respective ratios of the consideration actually given. The same equity has been considered as subsisting between tenants in common, where they hold under the same instrument. And where two tenants in common, who had heard of an adverse title, and agreed to join in defending against it, or in purchasing it, it was decided that one of them who purchased the adverse title for a small sum, must hold it in trust for the other, upon that other paying his proportion of the purchase money. *736
Cited in Smiley v. Dixon,
This brings me to notice another aspect of the case which, to *737
my own mind, is decisive. It is not averred that the supposed title purchased of Sterne was of any value; and I think it may be inferred from the petition that it was worthless, and the land in fact vacant. If such was the case, the parties acquired nothing by their purchase, and consequently had no title or estate to create a tenancy in common. The doctrine we are considering applies where there is a community of interest in a defective title, or a superior outstanding title or incumbrance. If the inference I deduce from the statements of the petition be correct, this is not the case of a defective title, but of a want of title. In such a case, in Pennsylvania, where two persons had purchased from a third who was supposed to have a title, but who, it was afterwards ascertained, had none, the supreme court held that there was nothing in the supposed co-tenancy to prevent one of the parties from appropriating the land for his own exclusive benefit. Smiley v. Dixon,
We are of opinion that there is no error in the judgment, and that it be affirmed.
Judgment affirmed.
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