62 So. 232 | Miss. | 1913
delivered the opinion of the court.
. Appellant filed his bill in the court below, alleging that he was the owner of an undivided one half interest in certain land; that the other half interest was owned by appellees; and prayed for a partition thereof. On final ■hearing the bill was dismissed; hence this appeal.
The material facts are that on the fourteenth day of April, 1887, E. A. Lindsley, purporting to act as an attorney in fact of L. B. Lindsley, the then owner of the land, executed a deed thereto to Mrs. Mary E. Shelby, which deed, for reasons not material to the question here involved was void. Mrs. Shelby died intestate in June, 1890, leaving as her heirs at law her husband, W. W. Shelby, and one son, Russel B. Shelby, appellant, who was then a minor. In March, 1898, appellee, W. L. Rhodes, purchased the land from W. W. Shelby, thinking that he was the sole owner thereof, receiving from him a warranty deed, under which he entered into, and has since continued in, exclusive possession of the land. In 1902, Russel B. Shelby being then still a minor, L. B. Lindsley, for a consideration of $1, executed and delivered to Bessie T. Rhodes, wife of W. L. Rhodes, a quitclaim deed to the land, which deed appellees set up in bar of appellant’s title.
Appellant’s contention is that this deed inured to his benefit and perfected his title to a half interest in the land, for the reason that he and W. L. Rhodes were tenants in common thereof, and therefore neither Rhodes nor his wife could purchase a superior title to the land and use it to his (appellant’s) prejudice. The rule which prevents one tenant in common from purchasing an out
Pretermitting any discussion of appellee’s contention that W. L. Rhodes never became a tenant in common with appellant, for the reason that the deed to Mary E. Shelby, which-appellant claims constituted the source of their common" title, is not merely defective, but is void, and treating W. L. Rhodes as in law a tenant in common with appellant, since he in fact never admitted any such relation, but entered into the exclusive possession of the whole of the common property, claiming it under a deed which conveyed to him the whole of it, and not an undivided interest therein, it can hardly be said that such a confidential relation existed between him and appellant as to make it inequitable for him to purchase the outstanding title and thus obtain what he intended to and thought he had obtained in the first instance by his purchase from W. W. Shelby, to wit, a perfect title to the property. Gardiner v. Hinton, 86 Miss. 604, 38 So. 779, 109 Am. St. Rep. 726; Niday v. Cochran, 42 Tex. Civ. App. 292, 93 S. W. 1027; Sands v. Davis, 40 Mich. 14; Hilton v. Bender, 2 Hun. (N. Y.) 1; Wright v. Sperry, 21 Wis. 336; Freeman on Cotenancy (2d Ed.), sec. 155; 17 Am. and Eng. Ency. of Law (2 Ed.), 678; 38 Cyc. 43.
For the same reason it cannot be said that it was inequitable for his wife to purchase this outstanding title. The fact that appellant was a minor at the time of these transactions is immaterial.
Affirmed,
