Bennett v. Bennett

• Decision Date: 25 April 1904
• Citation: 84 Miss. 493,36 So. 452
• Court: Mississippi Supreme Court
• Parties: CALVIN B. BENNETT v. HENRY BENNETT, JR., ET AL

36 So. 452

84 Miss. 493

CALVIN B. BENNETT v. HENRY BENNETT, JR., ET AL

Supreme Court of Mississippi

April 25, 1904

FROM the chancery court of, first district, Coahoma county. HON CAREY C. MOODY, Chancellor.

Henry Bennett, Jr., and others, appellees, were complainants in the court below; Calvin B. Bennett, appellant, was defendant there. From a decree in favor of the complainants the defendant appealed to the supreme court. The facts are stated in the opinion of the court.

Reversed and remanded.

Fitzgerald Maynard & Fitzgerald, for appellant.

The proof is clear and positive that appellant paid $ 43.05 of the purchase money, while his brother, Henry Bennett, only paid $ 15 thereof, assigning as his reason that $ 15 would buy all the interest he wanted in the land. He knew after he returned from his seven years' residence in Missouri before then that appellant was claiming at least to own the ninety acres he had improved, and he raised no objection to it. His children bring the suit after the death of their father, knowing appellant could not testify against his estate, and hoping he would fail to prove by other witnesses the facts in the case. The house appellees are living in now was built by appellant and at his expense. But for appellant the land would have been sold for taxes and lost to the owners, for appellees' ancestor refused to pay them saying he did not want the land. It would all now be wild land, and producing no revenue, but for the industry of appellant.

The plea of statute of limitations interposed by appellees against the claim of appellant for more than a half interest in the lands in controversy, is not good. Our contention is, we already have the legal title in our client for all the interest he has in the land, and that his interest is an undivided forty-three fifty-eighths part. While upon the face of the deed it appears that appellant and Henry Bennett owned each an undivided one-half interest in the land, yet it can always be shown by oral proof what interest in fact is owned. There is no question of resulting trust in this ease, because the legal title is not in Henry Bennett to any of appellant's actual interest in the land.

The plea is not good for two other reasons: Because Henry Bennett never claimed to own more than an undivided fifteen fifty-eighths interest in the land, having said $ 15 would buy all the interest he wanted, and appellees are estopped from now saying he did claim a larger interest. And because Henry Bennett was absent from and residing out of the state for seven years of the period during which appellees claim the statute was running. This statute does not run during the absence of the party to be sued from the state.

The decree in this case is erroneous in ordering the commissioners to set off to appellant a half interest, instead of a forty-three fifty-eighths part. Besides, the decree, in compelling appellant to account for rents and profits, when he has neither received rents nor profits from third persons, nor been guilty of any ouster or exclusion of his co-tenant, involves manifest injustice, and is contrary to the weight of authority.

By the common law a co-tenant, though in possession of the whole property, whether he used it himself, and thereby received advantages and profits, or let it to his tenants, who paid him rents, was not answerable to his co-tenant for the advantages enjoyed or rents actually received. To be so answerable, there must have been some agreement expressed or implied to pay rents, or to pay for such use and occupancy. Freeman on Co-tenancy & Partition, sec. 269; Ward v. Ward, 52 Am. St. Rep., 924, and authorities cited.

The English statute, 4 and 5 Anne, ch. 16, modified the common law by creating a liability against a co-tenant "for receiving more than comes to his just share and proportion."

It has been held by a number of courts of high authority in the United States that a co-tenant in exclusive use and possession of the common property cannot be regarded as asserting any right to which he is not entitled; and where the common law still prevails, and where it has not been modified by statutory provisions of import similar to the statutes of Anne, he is not answerable to his co-tenant merely for using more than his proportion of the common property, although realizing profits from such use. Ward v. Ward, 52 Am. St. Rep., 926, and authorities cited.

Under no conditions should the court below have decreed rents against appellant which accrued prior to the death of Henry Bennett and for the year of his death. There can be no controversy about such rents belonging to the administrator of decedent. Code 1892, § 1881.

In partition of lands between tenants in common, one of whom has made improvements thereon, the equitable rule is to assign to the improver that part upon which he has made the improvements, unless manifest injustice is done thereby to his fellow-tenant. As put by Chief Justice George, in delivering the opinion in Paddock v. Shields, 57 Miss. 341, "a co-tenant who has improved part of the common property is entitled to the improved part, or, if that will injure the other co-tenants, to have compensation in money."

J. W. Cutrer, for appellees.

By the terms of the deed from the state each of the parties was vested with an equal interest in the land described therein.

The appellant seeks to assert an interest in the property beyond and in addition to the calls of the deed to his brother and himself, and to show that, while the deed vests him with one-half interest in the property conveyed thereby, he holds a further interest to the extent of fourteen fifty-eighths of the interest or title vested in the ancestor of the appellees.

There was no mistake in the execution of the deed, within the meaning of equity, which could be the occasion of jurisdiction for a court of equity, superinduced by an erroneous mental condition arising out of ignorance or a misunderstanding of the truth, but without negligence. There was, if anything, a mistake of law, pure and simple, and it is more than certain that this is not adequate ground for relief. 2 Pomeroy Eq. Jur., secs. 839-842.

Courts will not enforce a resulting trust after the lapse of a considerable time, or laches on the part of the supposed cestui que trust. Smith v. Patton, 12 W.Va. 541; King v. Purdee, 6 Otto, 90; Douglass v. Lucas, 63 Pa. St., 11; Hall v. Doran, 13 Iowa 368; Midmer v. Midmer, 26 N. J. Eq., 299; Miller v. Blose, 30 Gratt (Va.), 744.

To enforce the application of this rule the legislature has long since seen fit to enact statutes of limitation, which interpose a bar to the assertion of all trusts and equitable claims, except express trusts. Code 1892, §§ 2731, 2763.

The very marrow of the appellant's case is the assertion by him of a right to hold more than the deed to him calls for. It is the assertion of a stale claim delayed of assertion until long after the death of one of the principal actors in the transaction, and after all bona fide witnesses thereto have passed away, or have forgotten the details thereof.

The decree directs the partition to be made as is provided by the statute. The accounting ordered is also strictly in line with the rule recognized as prevailing in Mississippi.

The commissioners appointed to make the partition are directed to make the allotments without balloting, so that the commissioners can make such allotments as in their judgment will best subserve and preserve the interests and equities of the parties.

The accounting for rents is to be had in connection with an accounting on behalf of the appellant for the improvements made by him upon the land and the taxes which he has paid. It would be inequitable, so far as the appellees are concerned, to give the appellant the benefit of all the improvements he has made and of all the tax. es he has paid without at the same time charging him up as an equitable set-off with the proportion of the rents and profits of the property which he has received in excess of his portion thereof. Therefore, it is not an objection to the decree for the accounting as to rents accrued prior to the death of Henry Bennett, that the personal representative of his estate is not a party.

OPINION

CALHOON, J.

Henry Bennett, Jr., and his brother and sister, the appellees, who are minors, by their next friend, set up in their bill below that they are the only children and heirs of Henry Bennett deceased, who died March 3, 1900; that he died the owner of an undivided one-half interest in a tract of 160 acres of land described, the other half belonging to C. B....