Walker v. Williams, 84 Miss. 392

Walker v. Williams

84 Miss. 392 | Miss. | 1904

Truly, J.,

delivered the opinion of the court.

Section 3101, Code 1892, provides that chancery courts in which suits for partition are instituted shall have power, in order to prevent multiplicity of suits, to “adjust the equities between and determine all claims of the several co-tenants.” It was proper, therefore, for the court in the instant case to inquire into and decide all controverted equities, and make a final adjustment of all claims arising out of and concerning the property sought to be partitioned. It is an established principle *398of equity that tenants in common sustain toward each other such a relation of trust as forbids one to do any act hostile, to the interest of the others, or to acquire by any means any title to the common property adverse to the claim of his co-tenants. Hence it was proper for the court to annul and hold for naught the sale under the Hamper trust deed, whereby appellee, E. H Williams, sought to acquire title to- the comiRon property. This title, so acquired, inured to the benefit of all those who were jointly interested in the property. However, as the Hamper trust deed constituted a lien on the entire property sought to be partitioned, and rested equally on the interest of each co-tenant, it was proper to charge the common estate with the money expended in payment of this debt. While it is true that one co-tenant cannot fraudulently pay off a lien or purchase at a sale thereunder, so as to obtain any title adverse to his co-tenants, yet he is entitled to be reimbursed the money advanced to discharge the common burden, because the payment there'of was necessary for the protection of the common estate. Therefore the money expended by appellees in the liquidation-of the Hamper note and lien was properly charged against the estate. Burns v. Dreyfus, 69 Miss., 213 (11 South., 107; 30 Am. St. Rep., 539); Harrison v. Harrison, 56 Miss., 174. Making an application of the same principle, the money advanced to pay the taxes on the common estate was also properly charged against it. Under previous adjudications, state, county, and municipal taxes are recognized as legal burdens imposed on property, the discharge of which being for the preservation of the estate and for the benefit of all concerned, the ones paying the same have a lien therefor on the share of their co-tenants for repayment. The master reported that the appellees had paid the taxes, and the chancellor so found. Davidson v. Wallace, 53 Miss., 475; Allen v. Poole, 54 Miss., 323.

It was proper to charge the interest of appellant in the property sold for partition with a reasonable sum for the use and occupation thereof. It is -a well-settled equitable principle *399that each co-tenant has a lien upon the interest of every other for the value of the use and occupation of the joint estate beyond such tenant’s individual interest therein, and also any sum which may have been collected and appropriated by such tenant as revenues arising therefrom. This is expressly held in Medford v. Frazier, 58 Miss., 241, and is reaffirmed as the correct doctrine to which full scope and effect is to be given in all proper cases in Burns v. Dreyfus, supra, where the court, through Cooper, J, says: “We recognize to its full extent the equitable principle that in the partition of lands held in common the court will, in the division of the property — or of its proceeds, if indivisible, and therefore sold for partition — do full justice between the co-tenants by directing accounts to be taken of receipts and disbursements by them, and will so apportion the fund as to do complete equity.” The fact that the husband of appellant also occupied the premises, and that he, under the law, is the recognized head of the family, in no wise limits appellant’s liability to render compensation to .her other co-tenants for her use and occupation of the joint estate. The property was occupied by appellant as tenant in possession by virtue and strength of her own title, and the question of legal domicile does not affect the rights of her co-tenants. From a careful inspection of this record we are unable to see that appellant has been denied any of her rights by the final decree herein. Upon her, as tenant in common with the appellees, there rested, under the law, the duty to pay her proportion of the lien which by joint action of all concerned was placed on the property, and the- taxes which, by operation of law, were annually levied. Inasmuch as she failed to pay her proportion, at the time it fell due, and it, was paid by her co-tenants, she now equitably bound to refund to them the money which they expended for her benefit, and for the protection of her.interest in the common estate. The final decree herein requires her to do nothing more.

*400Nor was it error in the court to decline to allow a fee to the solicitor of complainant. This case falls expressly within the prohibition against such award contained in the opinions of this court in Neblett v. Neblett, 70 Miss., 572 (12 South., 598); Hoffman v. Smith, 61 Miss., 544.

Affirmed.