Kenoye v. Brown

• Decision Date: 19 October 1903
• Court: Mississippi Supreme Court
• Parties: ROXANA KENOYE, GUARDIAN OF ANNA C. HARDISON, v. DORA BROWN ET AL

35 So. 163

82 Miss. 607

ROXANA KENOYE, GUARDIAN OF ANNA C. HARDISON, v. DORA BROWN ET AL

Supreme Court of Mississippi

October 19, 1903

FROM the chancery court of Washington county. HON. CAREY C. MOODY Chancellor.

Dora Brown and another, appellees, were complainants in the court below; Anna C. Hardison who, defended by her guardian Roxanna Kenoye, was defendant there.

In May 1886, William Brown died intestate, leaving his wife, Mary Brown, and their two children, Dora and Willie Brown, as his only heirs. At the time of his death he owned the west half of lot 2, block 20, of the third addition to the city of Greenville. In September, 1887, Mary Brown, the widow, sold the south half of this lot to one Williams, and it came by successive conveyances to Anna C. Hardison, the defendant in this case. In February, 1900, Dora and Willie Brown filed the bill in this case against Anna C. Hardison in the chancery court of Washington county, setting up that her claim was a cloud upon their title to a two-thirds interest in the south half of the west half of said lot, and that they were the real owners of said two-thirds interest, and prayed to have the cloud removed, and for the sale of the land for partition, and for an accounting of the rents and profits of the lot. Defendant answered by her guardian, Roxana Kenoye. There was a final decree for complainants, cancelling defendant's claim as a cloud on their title, ordering the land sold for partition, and directing an accounting. From that decree, defendant appealed to the supreme court.

Affirmed.

E. N. Thomas and A. J. Rose, for appellant.

The effect of the conveyance to Williams was to give him just such interest as Mary had in the west half. We invoke the rule of law as laid down in 17 Am. & Eng. Enc. Law (2d ed.), 683. While one tenant cannot convey a specific part of the common property by meets and bounds to the prejudice of his cotenants, as against the grantor and those claiming under him such conveyance will be sustained upon the principles of estoppel, and if upon a subsequent partition of the property the part conveyed falls to the grantor so that the rights of his cotenants are not prejudiced by the conveyances the grantee takes a good title. In any case the grantee as against the grantor acquires title to the land conveyed subject to the contingency of loss thereof in case on partition that part of the common estate should not be allotted to his grantor. This is the principle for which we contend. We contend that the lot inherited from William Brown should be partitioned just as if no conveyonce had been made by Mary. If Mary had not conveyed the south half, but instead thereof had put the improvements on the common property that were placed thereon by Williams, on partition between her and her children, she would unquestionably be entitled to contribution for these improvements. 3 Am. & Eng. Enc. Law (2d ed.), 186; Pomeroy's Equity Jurisprudence, 1389.

Now the fact that she did convey the south half, believing that she could convey and intending to convey her interest in the whole property, does not effect the equities nor enlarge the interest of her cotenants. She could not of her own volition make a partition of the property or sever her interest from the others, but she could do anything with her interest that was not prejudicial to the interests of her cotenants. If she attempted to convey more than she owned, such conveyance would not operate against her cotenants, but on partition her vendee would take such interest as she had in the common property. In Bartlett v. Hawlor, 12 Mass. 347, S. C., 7 Am. Dec., 76, the court held that while tenants in common cannot convey by deed by meets and bounds a specific part of the common property so as to entitle the vendee to maintain a writ of partition, but the purchaser, when the partition was made between the cotenants, would be entitled to the portion set apart to his vendor. The vendor would be estopped from asserting his right to this part. Cited and approved, 17 Mass. 285; 21 Pick., 284; 24 Pick., 332; 1 Met., 257; 7 Cush., 369; 12 Cush., 398; 12 Allen., 366; 12 Mass. 474. In approving Bartlett v. Hawlor, the court held on the fullest consideration that such conveyance by way of estoppel carries the interest of the grantor, and those claiming under him to the common property. That the rule of law which inhibits one joint tenant from conveying any specific part of the land to a stranger to the prejudice of his cotenants is not violated. This doctrine is further sustained in Howze v. Dew, 90 Ala. 178.

The weight of authority and the better reason support the proposition that such conveyance should be accorded full force and effect as against any interest the grantor has, or subsequently acquires in the land. See also Freeman on Cotenancy, sec. 199, et seq.; White v. Sayre, 2 Ohio 112; Robinette v. Preston, 2 Rob. (Va.), 278; Gates v. Solomon, 35 Cal. 588; Clark v. Barrett, 15 Cal. 370; Barnhurst v. Campbell, 50 Mo. 599.

Mary Brown was a necessary party, and this case could not proceed without her. How could the court ascertain what Mary's interest was and thereby fully protect the infant defendant, without making Mary a party? If the doctrine announced by the Massachusetts court is correct, no partition could be made without making her a party. Mary Brown was certainly a necessary party, and the relief sought by the crossbill could not be decreed without making her a party. 5 Enc. Pl. & Pr., 648, and cases there cited.

If Mary Brown was a necessary party, suit could not be proceeded with until she became a party. 52 Miss. 353.

We call the court's attention especially to the case of Young v. Edwards et al. (S. C.), 10 L. R. A., 55.

J. H. Wynn, for appellees.

The principle announced in Young v. Edwards, 10 L. R. A., 55, and Paddock v. Shields, 57 Miss. 340, and cases of like import, that upon a sale of a part of the common property by metes and bounds by one cotenant, such part will, upon partition, be set aside to the purchaser if it is not in excess of the interest of the vendor in the whole land, and if not prejudicial to the interest of the other cotenants, has no application in this case, for the part which Mary Brown sold and which came to the appellant--that is, the south half of the land, at the time of the sale, was equal in value to the unsold part, and at the time of the filing of the bill was equal in value and exceeds both in area and value one-third of the whole west half of the lot. For the northwest quarter and the southwest quarter are of equal size, each having fifty feet front, and each having a house thereon, so that the property could not be divided so as to set aside one-third of the lot as contended for by the appellee, and the court so found. The purchaser by metes and bounds of a common property from a cotenant does not become a cotenant with the other cotenants in common of the whole property, notwithstanding the finding of the referee in Young v. Edwards, supra, but he simply becomes a tenant in common with them of the part purchased with an equitable right to have that part assigned to him upon partition if it is not in excess of the vendor's interest in the whole property in area and value, and is not prejudicial to the rights of the other cotenants. The courts of many of the states hold that a sale by metes and bounds of a part of a tract by one cotenant is absolutely void, and that the other cotenant may disregard it altogether. But in this state such sale is not void, but makes the purchaser a cotenant to be protected in the part purchased upon partition if it is not prejudicial to the interest of the other cotenants, and not in excess of the interest of the vendor in the whole tract, is as far as the courts go, and is the only right to which the purchaser is entitled.

OPINION

WHITFIELD, C. J.

The true principle to be deduced from the authorities is that where one tenant in common makes a conveyance by specific metes and bounds of a part of the common estate, such deed is voidable in so far forth as it operates to the prejudice of his cotenants, at their election, but will convey the interest of the grantor in the parcels specifically conveyed, as against the grantor, and if, in the subsequent partition, the particular tract thus conveyed by metes and bounds should be assigned to the cotenant conveying, the title will...