Delta Cotton Oil Co. v. Lovelace

• Citation: 196 So. 644,189 Miss. 113
• Decision Date: 10 June 1940
• Docket Number: 33931
• Court: United States State Supreme Court of Mississippi
• Parties: DELTA COTTON OIL CO. et al. v. LOVELACE

196 So. 644

189 Miss. 113

DELTA COTTON OIL CO. et al. v. LOVELACE

No. 33931

Supreme Court of Mississippi, Division A

June 10, 1940

APPEAL from the chancery court of Sunflower county, HON. J. L WILLIAMS, Chancellor.

Suit by Erma H. Lovelace against the Delta Cotton Oil Company and others, for the recovery of compensation for use and occupation of plaintiff's half interest in a cotton gin property. From the decree, the defendants appeal. Reversed and decree directed for the defendants.

Reversed, and decree here for appellants.

Butler & Snow, of Jackson, for appellant, Delta Cotton Oil Company.

The court erred in holding that the Delta Cotton Oil Company was not entitled to be subrogated to the indebtedness and lien of the Buckeye Cotton Oil Company, paid off from the proceeds of its loan to Lovelace & Hogin.

Alliance Trust Co. v. Armstrong, 186 So. 633; Continental Jewelry Co. v. Joseph, 140 Miss. 582; Gunter v. Henderson Molpus Co., 149 Miss. 603; Fornea v. Goodyear Yellow Pine Co., 181 Miss. 50; Wall v. Wall, 177 Miss. 743; Caulk v. Burt, 112 Miss. 660; Prestridge v. Lazar, 132 Miss. 168; Robinson v. Sullivan, 102 Miss. 581; Fed. Land Bank v. Miles, 169 Miss. 43; Ligon v. Barton, 88 Miss. 135; Union Mort. Co. v. Peters, 72 Miss 1058; McIntyre v. Agricultural Bank, Freeman's Chy. 105; Ellis Jones Drug Co. v. Coker, 156 Miss. 775; Wilkinson v. Wilson, 154 Miss. 726; Spencer v. Clarke, 152 Miss. 542; Good v. Golden, 73 Miss. 91; Box v. Early (Miss.), 178 So. 790; 25 R. C. L. 1343; Walker v. Williams, 84 Miss. 392; Staton v. Bryant, 55 Miss. 261; Wall v. Harris, 90 Miss. 671; Nash v. Smith, 133 Miss. 1.

The demurrer was improperly sustained.

Lewis v. Simpson, 176 Miss. 123.

Delta Cotton Oil Company was entitled to off-set.

Field v. Coleman, 72 Miss. 545; Jordan v. Holmes, 102 Miss. 487; Note to Huggins v. Smith (Ark.), 16 A. L. R. 331.

Appellee was estopped from claiming interest in the property.

Barron v. Fed. Land Bank of N. O. (Miss.), 180 So. 74; Staton v. Bryant, 55 Miss. 261; Barrier v. Kelly, 82 Miss. 233; Davis v. Richardson, 45 Miss. 499; Bank v. Ethridge & Hardee, 112 Miss. 215.

Quit claim deed conveyed appellee's entire interest and estopped her from claiming rents and profits.

14 Am. Jur. 107-108; Burns v. Dreyfus, 69 Miss. 211; Walker v. Williams, 84 Miss. 392, 56 So. 450; Courtenay v. Hayden, 127 Miss. 13, 89 So. 777.

Lovelace should not have been permitted to testify that he and his wife did not know the recitals of the deed of trust signed by them.

Jenkins should have been permitted to testify as to the balance due.

The court should have held that appellee had no interest in the gin plant or the land.

The court should not have held that $ 1750 per season was the reasonable value of the use and occupation of the premises and should not have rendered a judgment on this theory.

Moody & Davis, of Indianola, for appellants, J. E. Hogin and Fletcher & Barnett.

Though a tenancy in common may be created by an act of the parties, as when the owner of the whole property conveys an undivided interest therein to another, yet the essential elements of such a relationship are characterized by a single unity, "that of possession, or of the right to possession, of the common property. If such unity exists, there is tenancy in common irrespective of other unities; if it does not exist the estate is not a tenancy in common."

14 Am. Jur. 82, sec. 16.

As a consequence of such relationship the applicable law is that, "subject to the rights of his cotenants, a cotenant of real property may use and enjoy the common estate in the same manner as though he were the sole proprietor."

14 Am. Jur. 95, sec. 24.

As a result of such equality of interests, "It is a universal principle that the possession of one cotenant is the possession of all."

14 Am. Jur. 94.

Rents and profits received by a cotenant in possession from a third person is distinct from the profits of possession. The former is the amount received from a third person, whereas the latter is the net amount received by the cotenant from the use of the property itself.

14 Am. Jur. 100-1, sec. 32; Newbeck v. Newbeck, 27 A. L. R. 172; Hamby v. Wall, 3 A. S. R. 218; Brown v. Thurstin, 29 L. R. A. (N. S.) 238.

The very important question is presented as to whether in order for a cotenant to be liable for the value of the use and occupation an ouster is required.

Freeman on Cotenancy and Partition (2 Ed.), Chap. X.

Even if it be conceded that all of the appellants, as cotenants of the appellee, are liable respectively to the appellee for the profits of their possession or for the reasonable rental value of their use and occupation, yet the important question is necessarily presented as to the extent, on an accounting, of such liability.

The right of contribution of one cotenant, which corresponds with the obligation of the other, exists for the amount paid in discharging, in whole or in part, an encumbrance on the common estate, and this includes the amount of principal, interest, and insurance secured by a mortgage or deed of trust; the payment of taxes and special assessments; the amount of necessary repairs and permanent improvements.

14 Am. Jr. 111-16, Secs. 44-49.

On a bill in equity by a tenant in common against his cotenants for an accounting for the profits of possession or for the reasonable rental value of the use and occupation, the court in granting relief on such a bill should keep in view and enforce so far as is possible the equities of all parties.

Griffith's Chan. Practice, Sec. 395.

Surely this is true where the equities of the appellants are set up in their answers and established by proof.

Memphis Gravel Co. v. Archer, 137 Miss. 558, 102 So. 390.

Whether it would have been better for the chancellor to have referred an accounting between the parties to a master, under directions as to the manner of stating the account, or, if not, that the court, in the decree, had stateed the basis on which the sums stated were ascertained, as held by this court in Hebron v. Kelly, 77 Miss. 48, we take it error cannot be predicated on the failure to do either. However, the findings in the decree must correspond with, and not be contradictory of, the evidence bearing on the account as it is stated in the decree. If, when so considered, the findings stated in the decree are erroneous, the decree must be reversed. This is true because the amounts decreed to be paid to the complainant by the several defendants are based on the findings as stated in the decree, which findings are in conflict with the evidence.

Staton v. Bryant, 55 Miss. 261.

Rent, even in the most comprehensive sense of the term, arises from, or grows out of, a contract, express or implied, between the parties and hence creates, expressly or impliedly, the relationship of landlord and tenant. By virtue of this relationship rent is the return or compensation by the tenant to the landlord for possession of the land. The word "rent" is derived from the Latin word "reditus" and signifies a compensation or return given for the possession of land and has been defined as a certain profit issuing periodically out of lands or tenements corporeal. It must issue out of the thing granted, which of course implies a contract for the use of the thing by virtue of which the relationship of landlord and tenant is created.

Riley v. Handy et al (Miss.), 189 So. 514; 16 R. C. L. p. 541, Sec. 13 and p. 909, Sec. 416.

By virtue of this relationship of landlord and tenant, the tenant is the absolute owner of the premises for all practical purposes for the term granted, the landlord's rights being confined to his reversionary interest.

16 R. C. L. 619, Sec. 100.

Hence a conveyance of the thing granted vests in the vendee the reversionary interest of the grantor therein but not the cause of action against the tenant for accrued rent unless specifically assigned.

Bloodworth v. Stevens, 31 Miss. 475, 480-1; 66 C. J. 1040, Sec. 792.

The quitclaim deed in controversy, as applicable to the case made by the record, is much stronger than the cases cited as authority for the reason that it is a deed executed by a tenant in common to his cotenants and, as between them, the cause of action grows out of and is dependent on the joint title to or ownership of the common property and does not merely grow out of the title to or ownership of the property by the grantor.

Fink v. Henderson, 74 Miss. 8; Houston v. Nat. Mut. B. & L. Assn., 80 Miss. 31, 31 So. 540.

The deed in question is from a tenant in common to his cotenants and conveys the common property and not merely an interest in it.

Secs. 2124, 2125, Code of 1930.

Inasmuch as the mutuality of rights of action between tenants in common grow out of the joint title to or ownership of the common property, a conveyance of the common property by a tenant in common to and accepted by his cotenants operates not merely as an assignment of such rights of action but as well as a mutual release of all rights of action inter sese which includes a right of action in favor of the grantor as well as a right of action in favor of the grantee. This result follows because the rights of action are mutual and, as stated, grow out of the joint title to and ownership of the common property. In short, as the rights of action are mutual, the release is mutual.

Whether a conveyance of the title operates as an assignment of a cause of action for rent, accrued or to accrue, which is based on a contract whereby the relation of landlord and tenant is created is well stated and applied by this court in Bloodworth v. Stevens, 51 Miss. 475, 480, 481.

On the other hand, whether a conveyance of the title operates as an assignment of a cause of action...