43 So. 20 | Ala. | 1907
Tins appeal results from a decree overruling motion to dismiss for want of equity and demurrers to the bill. As a general rule a co-tenant cannot by his own act prejudice in any degree the title or right of his fellows. A joint tenancy is,, as to the common property, a relation in the nature, if not in fact, of trust and confidence; and from this relation presumptions of the utmost favor to all joint owners arise, to the end that the title and rights of each in the joint estate may be preserved unimpaired. — Freeman on Co-Tenacy, §§ 166, 172; Brittin v. Handy, 73 Am. Dec. 497. Certainly one co-tenant may a.t forced sale buy the estate, and thereby in severalty become the owner; but he cannot by redeeming from mortgage sale, invest himself with an absolne, indefeasible title to the joint property. In such latter case the nonredeeming co-tenants have the right, which is only an equity, to elect within a reasonable time to contribute their proportion of the outlay made by the redemptioner in effecting the redemption and to rehabilitate their title. This act of redemption is well declared to inure to the benefit of all his co-tenants, provided within a reasonable time they elect to contribute and reinstate their title.' — Lehman-Durr & Co. v. Moore, 93 Ala. 186, 9 South. 590; Britten v. Handy, 73 Am. Dec. 497, and note; 17 Ency. Law, p. 679, div. 8.
The bill here is well filed within this principle, and enjoys its favor, unless, as is contended by appellants, under their motion to dismiss for want of equity, the laches of the appellees denies them its protection. In other words, we are confronted in this case with the question: Have the complaining co-tenants asserted within a reasonable time their election to taire the benefit of the statutory redemption of the common estate by their fellow? The appellants insist that two years from redemption is the reasonable limit for election by co-tenants, and invoke an analogy in the rule applied to the mortgagor’s election to'disaffirm, where the mort
It appears from the bill here that the sale under the power in the mortgage was had on January 15, 1894, and that Farnham and others, strangers, became the purchasers; that on December 13, 1895, Mrs. 'Watson co-tenant of complainants, redeemed from the purchaser at the tax and mortgage sale, and took quitclaim conveyance from them to herself. The bill was filed May 10, 1905. Applying the two-year limitation after redemption for the election by complainants, it follows that the laches chargeable to them deprives the bill of any equity. The other relief, sought is contingent upon the rights above determined, and no special consideration need be given that phase of the cause, nor is it necessary to pass upon the demurrers interposed.
The motion to dismiss the bill for want of equity, improperly overruled below, Avill be here sustained,. and the hill dismissed, but Avithout prejudice.
Reversed and rendered.