Dickerson v. Weeks

• Decision Date: 23 March 1914
• Docket Number: 16108
• Citation: 64 So. 731,106 Miss. 804
• Court: Mississippi Supreme Court
• Parties: V. A. DICKERSON et al. v. J. A. WEEKS

64 So. 731

106 Miss. 804

V. A. DICKERSON et al. v. J. A. WEEKS

No. 16108

Supreme Court of Mississippi

March 23, 1914

APPEAL from the chancery court of Attala county, HON. J. F. MCCOOL Chancellor.

Partition suit by V. A. Dickerson and others against J. A. Weeks. From a conditional judgment for complainants, they appeal.

The facts are fully stated in the opinion of the court.

Reversed and remanded.

A. P Dodd and L. Brame, for appellants.

"Since the note secured by the deed of trust to J. A. Davis trustee, was the joint note of A. L. Dickerson and his wife did he, A. L. Dickerson, acquire any title at all by his purchase at the foreclosure sale; did he thereby simply redeem the land from a lien securing his own debt?"

It is the contention of the appellants that A. L. Dickerson, by his said purchase under the trust deed, and from J. A. Davis, trustee, did not acquire any title to the joint property.

This court has heretofore passed upon this identical point, and in each case, and uniformly has held that a joint tenant cannot acquire title to the common property by any such sale. Wyatt v. Wyatt, 81 Miss. 227; Smith v. McWhorter, 74 Miss. 400, 20 So. 870; Walker v. Williams, 84 Miss. 397; Beamon v. Beamon, 44 So. 987; Smith v. McWhorter, 74 Miss. 400; Walker v. Williams, 84 Miss. 392; Wyatt v. Wyatt, 81 Miss. 219; Robinson v. Lewis, 68 Miss. 69; Clark v. Ramey, 72 Miss. 151; Hambles v. Harrison, 80 Miss. 118.

This brings us to the third point indicated by this court for additional briefs, which is in words as follows: "If the preceding question should be answered in the affirmative, have or not the cotenants unreasonably delayed to assert their right to an interest in the land?" This leads to the question as to whether or not the appellants have delayed in ascertaining their rights so long that they are barred by the statute of limitations.

As will be observed by an inspection of the petition filed herein and it is uncontradicted, at the time A. L. Dickerson purchased the lands under the deed of trust, a number of the appellants were minors, and that at the date of his deed to J. A. Weeks, on October 11, 1902, the appellants, V. A. Dickerson and Mrs. May Burroughs had not attained their majority.

It will further be observed that this petition for partition was filed in January, 1911, and at the date of the filing of the said petition, J. A. Weeks had held the lands herein under his said deed from A. L. Dickerson for a period of eight years and three months approximately.

Section 2734 of the Code of 1892 (Section 3094, Code of 1906), provides that ten years adverse possession vests in the occupants complete title, saving to persons under disability.

In the case of Hill v. Nash, 73 Miss. 849, which is a very elaborately considered case, where laches, estoppel and the statute of limitations was pleaded and relied upon, Judge WOOD, delivering the opinion of the court, among other things said: "Finally it is contended by counsel for appellant that as ten years, lacking only four days, intervened between the death of N. P. Ragan, the father, and the date of the institution of this suit, a court of equity, in the exercise of its own inherent powers, independently of the statute of limitation, may and should refuse relief, on the ground of discouraging stale claims, or gross laches, or unexplained acquiescence in the assertion of an adverse right. Much, and excellent authority is cited by counsel in support of this proposition, but it has been decided that there is no such thing as a stale claim, properly so called in this state, and, by positive law, the statute of limitation is to be applied in our courts of equity as in our courts of law. With us, no claim is barred, until the limitation of the statute has accrued. Code 1892, sec. 2731."

It, therefore, necessarily follows that unless the appellee, J. A. Weeks, has adversely held the lands in controversy for a period of ten years the appellants are not shut out and precluded from sharing in the lands in controversy.

Under section 2444 of Code of 1892, and sections 2762 and 2784 of Code of 1906, only the interest of the grantor is passed by a deed. Therefore, in this case, the deed of Dickerson to Weeks only carried with it Dickerson's interest in the land, to wit: a one-seventh interest thereof. See, also, Knogle v. Brown, 82 Miss. 611; Walker v. Williams, 84 Miss. 398; Hignite v. Hignite, 65 Miss. 447.

Adverse possession, to be available by one tenant in common as against his cotenant, must be shown to such an extent as amounts to a complete ouster, such as would have justified the cotenants in bringing a suit in ejectment. Bentley v. Callahan, 79 Miss. 302 and cases cited: Alsobrook v. Eggleston, 69 Miss. 833; Day v. Davis, 64 Miss. 253; Eastman & Gardner v. Hinton, 86 Miss. 604.

This brings us to the last point, concerning which additional briefs were desired, which is in words and figures as follows: "Should the last preceding question be answered in the affirmative, does it not follow that appellants have lost any right they may have had to share in the land; and if so, what harm was done them by permitting them to share in a partition thereof, provided they first repaid appellee the amount of the debts left by their mother and paid by him, conceding that they were in fact, in no way responsible to him therefor."

The cases of Wyatt v. Wyatt, Walker v. Williams and Beamon v. Beamon, supra, all carefully considered cases from this court, hold in the express language of the court, that a tenant in common, who purchases under the trust deed of the deceased ancestors through whom all acquire title, does not thereby acquire a greater interest in the lands than he already held, and that he holds same, subject to the price paid, for the use and benefit of his cotenants. Therefore A. L. Dickerson by his purchase at the foreclosure sale, did not acquire any title to the lands in controversy other than he already had, and he held the lands as trustee for his children.

Chalmers Alexander, for appellee.

The second proposition concerns the following: "If, by purchasing at this trustee's sale, A. L. Dickerson did acquire a title to the property which inured to the benefit of his cotenants, was it not incumbent upon them, within a reasonable time after reaching maturity, to pay, or tender payment, of their share of the amount expended by him in making his purchase, in order to avail themselves thereof."

We answer this in the affirmative. In 23 Cyc. 492, it is set forth that in joint tenancy such a purchase will inure to the joint benefit of the purchase and his cotenants, providing that the other joint tenants elect within a reasonable time to avail themselves of such adverse title, and contribute their ratable share of the expense of acquiring it; citing Brittin v. Handy, 20 Ark. 381, 73 Am. Dec. 497; Weare v. Van Meter, 42 Iowa 128, 20 Am. St. Rep. 616; Sneed v. Atherton, 6 Dana (Ky.) 276, 32 Am. Dec. 70; Bossier v. Herwig, 112 La. 539, 36 So. 557; 17 Am. & Eng. Ency. of Law (2 Ed.), 679; Starkweather v. Jenner, 216 U.S. 524, 54 Law Ed. 602; Middleton v. Newport Hospital, 1 L. R. A. 191; Calhoun v. Delphi & M. R. Co., 8 L. R. A. 248; Coffey v. Emigh, 10 L. R. A. 125; Pratt v. Carroll, 3 L.Ed. (U.S.) 627; Hammond v. Hopkins, 36 L.Ed. (U.S.) 135; Felix v. Patrick, 36 L.Ed. (U.S.) 720, and Abraham v. Ordway, 39 L.Ed. (U.S.) 1037.

The third proposition concerns the following: "If the preceding question should be answered in the affirmative, have or not the cotenants unreasonably delayed to assert their rights to an interest in the land?

If thirteen years is not an unreasonable time for cotenants to exercise their rights, then there should hardly be any limit at all. Stevens v. Reyonlds, 143 Ind. 467, 52 Am. St. Rep. 433; Seymore v. O'Keefe, 44 Conn. 128 and 131.

We accordingly assert that the cotenants have unreasonably delayed to assert their rights to an interest in the land.

Answering the fourth proposition, we say that appellants have lost all right which they may have had to share in the land, and accordingly there was no harm done in the chancellor's permitting them to share in the partition thereof, providing they first did equity by repaying to Weeks the amount of the debts left by their mother.

It is evident that Code 1906, section 3525, reciting that controverted title and all...