Burns v. Dreyfus

• Decision Date: 02 November 1891
• Citation: 69 Miss. 211,11 So. 107
• Court: Mississippi Supreme Court
• Parties: EDWARD BURNS ET AL. v. SOL. DREYFUS ET AL

11 So. 107

69 Miss. 211

EDWARD BURNS ET AL. v. SOL. DREYFUS ET AL

Supreme Court of Mississippi

November 2, 1891

FROM the chancery court of the first district of Hinds county HON. H. C. CONN, Chancellor.

John W., Edward and Elizabeth Burns were tenants in common of certain real estate in the city of Jackson. John W. Burns had possession of the property for several years, and received and appropriated the rents. Thereafter he gave to Dreyfus &amp Ascher a trust-deed on the property, not specifying the extent of his interest, to secure the payment of a debt he owed them. On default in the payment of the debt, the trustee, in pursuance of a power of sale, advertised the interest of said John W. Burns in the property to be sold. Thereupon, the other tenants in common filed the bill in this case making Dreyfus & Ascher and their trustee and the said John W. Burns parties defendant, praying for a sale of the common property for partition, and asking that a lien be decreed in their favor on the interest of John W. Burns for the amount to be found due them on an accounting in respect to receipts and disbursements, and that this should be given priority over the lien of the trust-deed. An injunction was asked and obtained to restrain the sale under the trust-deed. Dreyfus & Ascher answered, denying the equity of the bill and asserting priority of their claim under the trust-deed as to a one-third interest in the property. They made a motion to dissolve the injunction, which was heard and decided in vacation. On the hearing of the motion, they asked an allowance of five per cent. on the amount of the debt secured by the trust-deed and a reasonable solicitors' fee, as damages. On this motion, testimony was taken showing that John W. Burns was insolvent, and that he had appropriated the rents. A decree was entered modifying the injunction so far as to allow the trustee in the deed to proceed and sell the interest of the said John W. Burns to pay the debt due Dreyfus & Ascher. From this decree the complainants appealed the chancellor allowing a supersedeas; and Dreyfus & Ascher prosecuted a cross-appeal from so much of the decree as refused to grant them damages on dissolution of the injunction. The opinion contains a further statement of the case.

Decree reversed.

E. E Baldwin, for appellants, Edward Burns et al.

The statute provides that in partition all equities shall be adjusted. Code 1880, § 2576.

A tenant in common has a lien on the interest of his cotenant for a proportionate part of the rents collected and appropriated by the latter. Kingsland v. Chetwood, 39 Hun. (N. Y.), 602; Hannan v. Osborn, 4 Paige (N Y.), 336; Scott v. Guemsey, 60 Barb. 163; Metcalf v. Hoopingarden, 45 Iowa 510.

By the very terms of their deed in trust, Dreyfus & Ascher took only the real interest of John W. Burns in the property. He was in possession, and they are to be considered as having taken the trust-deed, looking to the possibility of a lien in favor of the co-tenants. The lien of the co-tenants was paramount to that of the trust-deed, Dreyfus & Ascher having taken...