Sharp v. Williams , 1 Shan. Cas. 76 ( 1858 )

McKiNNEY, J.,

delivered tbe opinion of tbe Cou^t:

Tbe complainant and defendant were separate creditors of one Calvin Hudson. They bad each recovered judgment before a Justice for tbeir several demands, upon which executions bad been issued and were levied on a tract of land, granted to Hudson and Levi Smith, jointly. At tbe Sheriff’s sale, tbe complainant and defendant, jointly, bid tbe aggregate amount of tbeir judgments for tbe land, and it was struck off to them; but no deed of conveyance was ever made by tbe Sheriff. It appears that prior to tbe levy of tbe executions on tbe land, Hudson bad conveyed said land to two of bis sons. Sometime after tbe purchase by tbe parties to this suit, at tbe execution sale, tbe defendant procured a deed of conveyance to himself, individually, for said lands, from tbe two sons of Hudson, in which tbe father joined. This was done to perfect tbe titele upon tbe assumption that tbe sale by tbe Sheriff was inoperative to communicate title, in consequence of tbe previous conveyance by Hudson to bis son. Tbe complainant likewise, after tbe purchase at execution sale, purchased in tbe outstanding title of tbe heirs of Levi Smith, one of tbe joint grantees. Upon this state of facts tbe defendant, who is in possession, refuses to admit tbe complainant as a tenant in common, and denies bis interest in tbe land.

It is clear that by their joint purchase, they became tenants in common of the land. The purchase by the defendant of the supposed interest of Hudson’s two sons, was perhaps supererogatory, as it is obvious the conveyance to them was inoperative against the creditors of their father.

But, supposing the contrary of this to be true, still, inasmuch as the parties stood in the relation of tenants in common, the purchase of an outstanding title, or the removal of an incumbrance upon the land purchased, by either party, would inure to the common benefit of both ; of course they must equally contribute to the expense thus incurred. This doctrine is well settled. — (See Tisdale vs. Tisdale, 2 Sneed. 596.) Neither party, by buying up an outstanding title, can claim to appropriate the land, under it, to his own exclnsive use. The decreee will be affirmed.

Decree affirmed.

This principle rests on the privity "between the parties, and the fidelity and good faith which the connection implies. Tisdale v. Tisdale, 2 Sneed, 596; Van Horn v. Fonda, 5 Johns. Ch. R. 407; Lee v. Fox, 6 Dana, Ky. R. 176; Sneed v. Atherton, Ib. 278, 281. And even after partition, either party is estopped from setting up any previously existing adverse title against the other, in reference to the part apportioned to him. Coleman v. Coleman, 3 Dana, Ky. R. 403. But see Glass v. Hawkins, Infra, and the Tennessee authorities there collected in notis.

The doctrine is of universal application, and applies to trustees, guardians, executors, solicitors, co-sureties, and all persons occupying a relation of trust and confidence towards others.

Field v. Pelot, McMullan Eq. R. 370; South Memphis v. Howard, supra 98; Nesbitt v. Tredermick, 1 Ball B. 46; Van Epps v. Van Epps, 9 Paige, 237; Tanner v. Elworthy, 4 Beavan, 487; Dickenson v. Codwise, 1 Sandf. Ch. R. 215; Taylor v. Plumer, 3 Maule & Selw. 574, 576; Conrad v. Atlantic Ins. Co., 1 Pet. Sup. Ct. R. 448; Hassal v. Smithers 12 Ves. 119; Murray v. Lylburn. 2 Johns. Ch. R. 441; Haille v. Smith, 1 Bos. & Pull. 563. But one tenant in common may deny the title of his co-tenant, and bring ejectment .against him. Washington v. Conrad, 2 Humph.562. But not until disseissin and actual ouster, so as to give effect to tie statute of limitations against Mm Story v. Saunders, 8 Humph. 663; Hubbard v. Ward, 1 Sneed, 276. IJntil actual ouster, ejectment will not .lie by one tenant in common against another.

Story v. Saunders, ubi supra; Barnitz v. Casey, 7 Cranch, 456; Valentine v. Northup, 12 Wend. 494; Blanton v. Vanzant 22 Swan 77; Parker v. Elder, 11 Humph. 546.