Clausell v. Riley

• Decision Date: 27 May 1940
• Docket Number: 34174
• Citation: 188 Miss. 647,196 So. 245
• Court: Mississippi Supreme Court
• Parties: CLAUSELL v. RILEY

196 So. 245

188 Miss. 647

CLAUSELL v. RILEY

No. 34174

Supreme Court of Mississippi, Division B

May 27, 1940

APPEAL from the chancery court of Simpson County, HON. BEN STEVENS Chancellor.

Suit by Jefferson D. Riley against Fannie Taylor Clausell to partition certain land. From a decree of partition, the defendant appeals. Affirmed.

Affirmed.

W. M Lofton, of Mendenhall, for appellant.

There can be no tenancy in common unless each one of the co-tenants owns an interest in land, and that must be an equal interest.

38 Cyc 3.

We agree that the relationship of tenants in common existed between the appellant and appellee in this case from the date when appellee acquired his interest in said land at the sale thereof made by the substituted trustee, and that relationship continued after that time, when the assessment of said land was made, and also at the time when the taxes should have been paid, and that it did not stop there, but it continued after the sale of said property for the taxes due on the same and that it continued up and during all the time when either party had a right to redeem the same from tax sale, but we contend that when the time to redeem said land from tax sale had expired, that then neither of said co-tenants had any right, title, or interest in said land, and before the relationship of tenancy in common can exist that each of said parties must own some interest in said land.

38 Cyc. 13.

Would counsel for appellee insist that the relationship of tenancy in common continued to exist after the time to redeem said land had expired? Or would he contend that in order that the relationship of tenancy in common should exist, that it was not necessary for either of said co-tenants to have any interest in said land? We absolutely plant ourselves on this proposition, that before the relationship of tenancy in common can exist that the co-tenants must each own an interest in the common property, and that this is a condition precedent that must be established before the relationship of tenancy in common can exist.

Davis et al. v. Cass et al., 72 Miss. 985, 18 So. 454; Jonas v. Flanniken, 69 Miss. 577.

Bee King, of Mendenhall, for appellee.

It is a principle of law that no person shall be allowed to take advantage of his own wrong. Fannie Taylor was under the same obligation to pay the taxes on said land as were the said Jefferson D. Riley, Dezzie Jackson, and Meredith Taylor. To allow her to sit idly by and let the land sell for taxes and the title thereto mature in the state, and then purchase the land for herself and thereby defeat her co-tenants, would certainly be to allow her to take advantage of her own wrong.

The general rule that one co-tenant cannot acquire title against his co-tenants has been followed by the courts of this state for more than a hundred years.

Wyatt v. Wyatt, 81 Miss. 219; Beaman v. Beaman, 44 So. 987, 90 Miss. 762; Watson v. Vinson, 67 So. 61, 108. Miss. 600; Coker v. Lewis, 99 So. 561, 135 Miss. 118; Hardy v. Gregg, 2 So. 358; Cohea v. Hemingway, 14 So. 734, 71 Miss. 22; Robinson v. Lewis, 8 So. 258, 68 Miss. 69; Jonas v. Flanniken, 11 So. 319, 69 Miss. 577; Clark v. Rainey, 72 Miss. 151; Jones v. Merrill, 69 Miss. 747; Robinson v. Lewis, 68 Miss. 69; Wise v. Hyatt, 68 Miss. 714.

OPINION

Ethridge, P. J.

Jefferson D. Riley filed a bill in the Chancery Court of Simpson county for the partition of certain lands therein situated, setting forth that John Taylor died seized and possessed thereof leaving as his heirs-at-law his widow, Fannie Taylor, and his children, Mitchell Taylor, Meddie Taylor, and Dezzie Jackson, Sezzie Berry and Meredith Taylor; these heirs becoming tenants in common of the property described; that after the death of John Taylor an attempt was made to partition the land among these heirs, and that on the 31st day of January, 1931, Fannie Taylor, Meddie Taylor, Meredith Taylor, Dezzie Jackson and Sezzie Berry executed a deed to a part of their interest in a portion of the lands involved to Mitchell Taylor, which was accepted as his interest in them, and the deed was placed of record; that thereafter a deed of trust was placed on a part of the John Taylor lands, the lands embraced therein were sold, and the interests of the co-tenants mentioned in the deed of trust were purchased by Jefferson D. Riley; that thereafter the lands involved were assessed to Fannie Taylor, who allowed same to be sold for taxes; that after having lived on the homestead subsequent to the foreclosure, Fannie Taylor married one Clausell, and moved to Copiah county; by which marriage and removal she lost her homestead rights in the property, and became merely a tenant in common with the other heirs of John Taylor. That while in possession of the said lands embraced in the deed of trust, and in the bill, and which were assessed to her, Fannie Taylor permitted them to be sold for taxes...