Savage v. Bradley, 43 So. 20

Savage v. Bradley

43 So. 20 | Ala. | 1907

McCLELLAN, J. —

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*173gagee without contractual permission purchases at his own sale. The appellees, on the other hand, insist that ten years is the reasonable limit for such election, and offer an analogy in the statute of limitations of that period. In view of the relation involved, we are not prepared to hold that any inexorable rule can or ought to be declared, since in the very nature of the relation the conduct and condition of the co-owners might materially change the standard. However, we are of the opinion, and so hold, that in ordinary cases, such as this is, by analyogy to the term fixed for the exercise of the statutory right of redemption, two years is the limit of time within which election by a co-tenant should be made in order to avail himself of the redemptioner’s act. To extend the time, in ordinary cases, to ten years, would be to put within the power of a non-redeeming co-owner a wholly unreasonable option, and also fix for too long a period a condition upon title well calculated to impair confidence in its extent and duration. The status of the title and rights of the redemptioner and his fellow ten-tints is, in some respects, analogous to that existing when the mortgagee without stipulation to that effect in the instrument purchases at his own sale; and in ordinary cases of this character this court has many times declared two years as the reasonable time within which to disaffirm the sale. These two analogies afford, we think, firm ground upon which to found the conclusion above announced.

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.

*174In response to the insistence of appellees that, on motion to dismiss, the bill will be taken as amended to the effect that complainants were infants incapable of electing to reinstate their title, we may refer to the following cases, which adjudge that the presumption of amendment does not authorize the retention of a. bill, against motion to dismiss, when to do so amendments of new and independent facts are to be taken as already made. — Blackburn v. Fitzgerald, 130 Ala. 584, 30 South. 568; Seals v. Robinson, 75 Ala. 368; Tait v. American Mortgage Co., 132 Ala. 193, 31 South. 623.

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.

Tyson, C. J., and Dowdell and Anderson, JJ., concur.