Crawford v. O'Connell , 39 Or. 153 ( 1901 )

Mr. Justice Moore,

after stating the facts in the foregoing terms, delivered the opinion.

It is contended by appellant’s counsel that the parties entering into the agreement to purchase the land from Mrs. Tupper were cotenants, and not partners in that or any other transaction, and that the following clauses in the deed executed by plaintiff and his wife and others to Merchant, viz.: “And whereas, said lands were purchased for and on behalf of said A. M. Crawford, C. H. Merchant, C. W. Tower, George W. Loggie, and Eugene O’Connell, each owning an undivided one fifth thereof,” and “said premises are hereby conveyed subject to the mortgage heretofore mentioned, and each share or portion held in trust as aforesaid' is liable and held for its proportionate share thereof,” — conclusively show that neither O’Connell nor Merchant was liable for any default of plaintiff, Tower, or Loggie ; and, this being so, they could purchase at an involuntary sale the interest, and secure the legal title thereto, of either or all of said parties in the premises, and, having done so, the court erred, in rendering the decree complained of.

1. It will be remembered that O’Connell alleges that Merchant was plaintiff’s agent, to whom he tendered, as such, the sum of $647.94, his share of the common burden, but that Merchant refused to accept the same. The agency having been denied in the reply, O’Connell, as a witness in his own behalf, says he tendered the sum so named to Merchant, but the latter testifies that O’Connell said he was ready and willing to pay his share, but that he did not remember of his ever having tendered any sum on account thereof. Whether O’Connell made such tender is immaterial, for, not having deposited the money in court for the person entitled thereto, the tender was unavailing as a means of escaping a liability which could have been avoided by keeping the tender good : Welch v. City of Astoria, 26 Or. 89 (37 Pac. 66); Jacobs v. Oren, 30 Or. 593 (48 Pac. 431). But, if the tender had been made to Mrs. Tupper of a sum sufficient to pay his proportion of the mortgage debt, she could not have been compelled to discharge the incumbrance upon his interest in the premises ; for the mortgage, having been executed by the plaintiff as agent for all the parties, and with their knowledge and consent, was, in effect, joint, and hence the mortgagee was entitled to have the whole demand continue secured by a lien upon the entire property until payment was made in full; nor would she be obliged to submit to a decree for a sale of the undivided interests separately for the respective parts of the debt due her: Frost v. Bevins, 3 Sandf. Ch. *188. So that, whatever stipulations the parties may have incorporated in their deed changing trustees, while it may have been binding upon them, it did not in any manner limit the rights of the mortgagee, who was not a party to such instrument.

2. Conceding, without deciding, that the parties were not partners in the purchase of the land, the real question to be considered is whether a person sustaining in equity the relation of a tenant in common, whose interest in real property is subject to the lien of a joint mortgage, can, without paying the debt, thereby securing an equitable assignment of the incumbrance, become the purchaser of the entire interest in the premisés under a decree of foreclosure, and acquire a title which he can assert against his cotenants ; and, if this inquiry be answered in the negative, the concluding question is whether he can be required in equity to contribute his share of the common burden which another cotenant has been compelled to discharge. The rule is well settled that a tenant in common of land who neglects to pay his share of the tax imposed as an entirety thereon can acquire no title to the interest of his cotenant therein by bidding in the entire premises at a sale thereof for delinquent taxes : Brown v. Hogle, 30 Ill. 119; Page v. Webster, 8 Mich. 263 (77 Am. Dec. 446); Butler v. Porter, 13 Mich. 292 ; Cooley v. Waterman, 16 Mich. 366 ; Maul v. Rider, 51 Pa. 377 ; State ex rel. v. Williston, 20 Wis. 228; Downer's Adm'rs v. Smith, 38 Vt. 464. The reason upon which the decisions in those cases rests is that a tenant in common, in order to release his interest in the common property from the burden of taxes imposed as an entirety upon the whole estate, must pay at least his share of the sum exacted; and that to allow him to escape this duty, and.to purchase the whole estate at a sale thereof for the entire tax, if he could assert against his cotenants the title so secured, would be to permit him to take advantage of his own wrong. The sale of the mortgaged premises under the decree was not of an undivided interest of one or more cotenants, but of the entire estate of all of them, including that of O’Connell, who was also.in default, in which case the rule, upon principle, must be the same as in the case of the sale of the whole property of cotenants for an entire tax, as far as applicable ; and as the plaintiff, with the knowledge and consent of all the cotenants, became personally liable for the payment of the common burden as an entirety upon the whole premises by executing the promissory note, a court of equity will not permit O’Connell, except upon paying' the entire debt, thereby procuring an equitable assignment of the mortgage, to secure a title to the whole estate by a purchase thereof at a forced sale, and still leaving a personal decree over against the Xslaint-iff, but the title thus acquired will be decreed to be held in trust by the purchaser for such of his associates in the venture who, within a reasonable time, seek to be restored to their original estate in the premises by a contribution of their proportionate share of the burden ; and hence O’Connell can not assert such title against the XDlaintiff. Thus, in Gibson v. Winslow, 46 Pa. St. 380 (84 Am. Dec. 552), it was held that, where land owned jointly by three persons is purchased at sheriff’s sale by one of them on an execution against all, the buyer can not set up his purchase adversely to them. He can at most only hold the former interests of his cotenants as their trustee. To the same effect, see Rothwell v. Dewees, 67 U. S. (2 Black), 613; Sullivan v. McLenans, 2 Iowa, 437 (65 Am. Dec. 780); Titsworth v. Stout, 49 Ill. 78 (95 Am. Dec. 577); Jones v. Stanton, 11 Mo. *433 ; Keller v. Auble, 58 Pa. 410 (98 Am. Dec. 297).

The defendants Loggie and Tower having failed to pay their proportion of the purchase price of the land, their respective interests therein, resulting from the payments which they had made on account thereof, were declared forfeited; and, neither having appealed, they are concluded by the decree, and hence the interest of each inured to the plaintiff and to the defendants Merchant and O’Connell, thereby increasing their respective interests in the lots and blocks remaining unsold to an undivided one third thereof. Whether O’Connell would have been obliged to make any contribution in case he had paid one fifth of the purchase price and secured a title to one fifth of such property from a cotenant who had purchased the entire estate under the decree or who had paid off the mortgage, it is not necessary to inquire ; for, having secured by his purchase at the involuntary sale a greater interest than he bargained for at the time the contract was entered into with Mrs. Tupper, it would be unconscionable to allow him to retain such interest without requiring him to bear his share of the common burden which the plaintiff had discharged. O’Connell, though not a party to the note and mortgage, was liable in equity thereon to the extent, at least, of the purchase price which he agreed to pay, because the evidence of the debt and the security were executed by the plaintiff as his agent, with his knowledge and consent; and, a sale of the mortgaged premises having been made under the decree to a virtual mortgagor, left the estate so purchased liable in equity to the deficiency in payment of the money decree, which, the plaintiff having paid, was tantamount to an assignment thereof which he can enforce against the property to the extent of the interest of the several co-tenants remaining therein, and hence the plaintiff is entitled to an undivided one third of the property remaining unsold, and to the contribution awarded by the decree, which is affirmed. Affirmed.