Rippe v. Badger , 125 Iowa 725 ( 1904 )

Sherwin, J.

1. Tenants common: contribution. The plaintiff and Beadle were co-tenants of the land in controversy, and the sale of the latter’s undivided interest rinder an execution did not sever the relations, but the appellant, as the purchaser thereof, became himself the co-tenant of the plaintiff. 6 Wait,g Actio;ns & Defenses, 746, and cases cited. It is the general rule that co-tenants are liable for the purchase price of the common property, and for the liens and incumbrances against it, in proportion to their respective interests, and if one co-tenant pays off the lien, or pays more than his share thereof, or if he pays more than his share of the purchase price, he is entitled to contribution from hi? co-tenant for his proportion, and has a lien upon the property to secure the payment thereof. Oliver v. Montgomery, 39 Iowa, 601; Sears v. Sellew, 28 Iowa, 501; Koboliska v. Swehla, 107 Iowa, 124.

2. Tenants in common: chaser at judiciai sale; contribution. We do not understand tliat these general rules are questioned by the appellant, but he does contend that, having, purchased at a judicial sale, without actual or constructive notice that the mortgages had been paid by the and. that he was entitled to contribution therefor, he is not liable, ihe maxim of caveat emptor unquestionably applies to 'a sale under execution, and the purchaser ordinarily acquires no better title than the debtor could have conveyed at the time the lien attached. Rakestraw v. Hamilton, 14 Iowa, 147. But while this is true, and the purchaser takes his title subject to the liens and equities it was subject to in the hands of the defendant in execution, it is also true that the purchaser will ordinarily be protected against outstanding equities of which he had no notice, actual or constructive, before the sale. Butterfield v. Walsh, 36 Iowa, 534, and cases cited. In Stover v. Cory, 53 Iowa, 708, We applied this rule to the case of a co-tenant who had paid taxes on the land before the other co-tenant bought, and denied recovery therefor. On the other hand, we held in Pinckney v. Collie, 114 Iowa, 441, that section 2925 of the Code was not applicable to the case of a purchaser without notice at an execution sale of the interest'of an heir in the estate of his intestate, where there had been an advancement to him during the life of the ancestor. The rule thus announced, and the reasoning upon which it is based, seem applicable to the case at bar, for here the mortgages were in fact recorded; and, upon their payment by the plaintiff, he could have recorded no instrument which would have affected the estate, within the meaning of the statute. He had no right to pay the mortgages and take an assignment of them for the purpose of subrogation, because he was a co-tenant, and could not acquire or hold an outstanding incumbrance as against his co-tenant. Leach v. Hall. 95 Iowa, 619.

3. Same. Eliminating the statute, the case would be governed by the controlling equities. It is unneoessaiy, however, to apply the rule of the Pinckney Case here, because of the facts. At the time the defendant purchased the certificate of sale, he was a nonresident of the State, and was not present at the sale of the land. The land was sold to Bringholf, who, though he had taken an assignment of the judgment, was in reality not the owner thereof, but undertook tits collection for a commission. Bringholf assigned the certificate in blank, delivered it to the bank, and received his commission before the sale thereof to the defendant. Mr.Vaughn, the cashier of the. bank, was the defendant’s agent for the transaction of his business in that locality, and for the purchase of the certificate in question. He knew or was charged with knowledge of the fact that the mortgages had been paid, and that their release had been secured by his agent, Bringholf. Furthermore, he knew that Beadle was insolvent and could not have paid them, and that the plaintiff was in exclusive possession of the- property, and timely inquiry would undoubtedly have acquainted him.with the plaintiff’s equities; and this, we think, good faith and reasonable prudence required him to make in tire circumstances of this case. Rogers v. Hussey, 36 Iowa, 664; Hannan v. Seidentopf, 113 Iowa, 658.

4. Contribution preservation of right. There is nothing in the claim that the plaintiff is estopped- because he knew of the judgment, and that, the interest of Beadle was to be sold. He was not bound to attend the sale and notify prospective purchasers of his right to contribution. He did not then know that the mortgages had been released, and could justly rely upon the notice which the record and hispossession of the property gave to the world. Moreover, the releases having been procured and placed upon record by the defendant’s agents without the knowledge or consent of the plaintiff, he is in no position to charge the plaintiff with an estoppel on account thereof.

The evidence does not show a merger of the plaintiff’s equity in the legal title which he afterwards acquired from Beadle. On the contrary, the facts negative .any su'ch intent, and the intention of the parties will ordinarily determine the question in equity.

5. Contribution improvements; rents. The plaintiff is not entitled to recover for improvements made. lie does not. claim anything therefor in his pleading nor in argument, and, as we inK|ers^ail¿ record, he was a disseisor, and for that reason alone he is not entitled to contribution for the improvements. Austin v. Barrett, 44 Iowa, 488.

It is also the rule that a disseisor is chargeable with the rental value of his co-tenant’s share of the property, whether the rent is actually received by him or not. Austin v. Barrett, supra; Sears v. Sellew, supra. This seems to have been the view of the trial court, and we áre not disposed to interfere with the fact findings as to the value thereof.

The allowance for sidewalk and curbing will be deducted from the amount found due the plaintiff, and as thus modified the judgment will be affirmed. The -case will be remanded for a judgment in accordance herewith, or the plaintiff may have a decree here if he elects so to do within twenty days from the filing of this opinion.— Modified and affirmed.