Ely v. Brewer

MAYFIELD, J.

The bill was filed by appellee for partition and accounting between tenants in common.

There was a demurrer to the hill, and it was overruled, but there is no insistence as to error in this matter, consequently the ruling on the demurrer will not be noticed. The case was finally submitted for decree on bill, answer, and proof, and a decree rendered, ordering the partition and accounting, and from that decree the appellants (respondents below) prosecute this appeal. Most all of the facts necessary to the decision are admitted, or are without dispute, though there are some material facts which are disputed. As to these we find with the chancellor. The reporter will set out the facts found by the chancellor, as shown in his opinion. On these facts, we have no hesitancy in affirming the decree of the chancellor.

The main question of law involved, in the case is whether or not any title passed from J. F. Chesson to W. B. Blount by the conveyance from the former to the latter and, if so, what title so passed. We are of the opinion that no legal title passed by this conveyance, but that an equitable title to a one-fifth interest in the land in question did pass by that deed, and that that title has passed to the complainant by virtue of a deed from said Blount to complainant (appellee here). There is no doubt that Chesson had a vendor’s lien on the lands for the purchase price to this extent at the time he executed the deed; and this certainly passed to W. B. Blount, and from him to complainant. While the legal title to this one-fifth interest passed to Priscilla Blount, the mother of W. B. Blount, by the deed from J. F. Chesson to her, and this legal title was not divested by striking the name of said Chesson from the deed after it was' delivered, and the conveying to W. B. Blount, and the re-recording of the changed deed, yet such acts did pass the equitable title to said W. B. Blount.

This change was made in perfect good faith and with the firm, but mistaken, belief that the legal title would thereby vest in said W. B. Blount. It cannot be doubted that Mrs. Priscilla Blount was well apprised of the change, and of the desired end and purpose of the change, and that she consented to it, and never thereafter claimed this fifth interest; and, if she had attempted to claim it, she would certainly have been estopped in a court of equity from asserting it against a bona fide purchaser, such as is the complainant in this case. It is equally certain that this fifth interest never passed by the conveyance of W. B. Blount to appellant.

At the death of Mrs. Priscilla Blount, W. B. Blount inherited a one-fifth interest in these lands in addition to the one-fifth interest which he had obtained by purchase from J. F: Chesson. Appellant purchased the one-fifth interest which Blount inherited from his mother, and no more; he refused to purchase the other one-fifth interest which Blount held by purchase, and Blount subsequently sold this one-fifth interest to the complainant (appellee). We are of the opinion that this record leaves little, if any, doubt that appellee acquired a perfect equitable title to an undivided one-fifth interest in these lands, and thereby became a tenant in common with appellants, to this extent, in the lands the subject-matter of this suit. This being true, and appellant having received the entire rents and profits, denying the right of appellee to share in the possession or the profits, the appellee certainly had the right to have the lands partitioned, and, in order to receive complete justice, to have an accounting and to have his title perfected as to this one-fifth interest.

These principles of law are too well known to require citations of authority.

Affirmed.

Dowdell, C. J., and Anderson and de G-raffenried, JJ., concur.