Gilchrist Fordney Co. v. Ezelle

• Decision Date: 14 December 1925
• Docket Number: 25288
• Citation: 106 So. 269,141 Miss. 124
• Court: Mississippi Supreme Court
• Parties: GILCHRIST FORDNEY CO. v. EZELLE et al. [*]

106 So. 269

141 Miss. 124

GILCHRIST FORDNEY CO. v. EZELLE et al. ^[*]

No. 25288

Supreme Court of Mississippi

December 14, 1925

Division B

(Division B.).

1. TENANCY IN COMMON. Purchase by cotenant inures to benefit of all other cotenants.

One cotenant cannot purchase to the exclusion of the other cotenants property in which they have a common interest. Such purchase inures to the benefit of all the other cotenants.

2. PARTITION. In partition suit, court should allow purchaser from cotenant, who bought common property at trustee's sale, sum received by cotenant for timber and expended by him in discharging incumbrances against common property.

In a case where one cotenant purchased at a trustee's sale the common property of all the cotenants and sells the timber growing on the land so purchased for a given sum of money which is used in discharging the debts against the common property, a court should allow the purchaser from the cotenant who bought at the trustee's sale the sum so received and expended in discharging such incumbrances to the vendee of such purchasing cotenant in a partition suit.

HON. D M. RUSSELL, Chancellor.

APPEAL from chancery court of Smith county, HON. D. M. RUSSELL Chancellor.

Suit by George Ezelle and others against the Gilchrist Fordney Company for partition. From an adverse judgment, defendant appeals. Affirmed in part, and reversed in part and remanded.

Affirmed in part; reversed in part, and remanded.

T. J. Wills, for appellant.

No land is involved in this suit, but only the timber, as we submit that Gilchrist Fordney Co., the appellant, holds the absolute title to the said timber.

B. F. Ezelle at his death left his widow, and nine minor children who were living in this home on which the Bank of Forest held a deed of trust, and the family had nothing with which to pay the deed of trust it looked as if they would lose their home and be turned out on the world. This was a distressing situation. Mrs. Ezelle realized that something must be done to save the home for herself and the children. And what could she do? She testified that they had lost two crops, and that the place was going down and she had no money to pay the deed of trust held by the bank. She was the mother of nine minor children, who had to have some place to live. She was the head of the family, whose duty it was to provide a home for the said children. The truth is that Mrs. Ezelle did what we think the law not only authorized her to do, but even required her to do; namely, to sell the timber, pay the mortgage and save their home. It will be remembered that she testified that she used every dollar of the money that she received from the sale of the timber to pay the mortgage on the home and some other debts which Mr. Ezelle owed at the time of his death; also that she and her children received every benefit of every dollar received from the sale of the timber.

It has been the settled law in Mississippi, for all time, that a co-tenant or a tenant-in-common is entitled to be reimbursed by the other tenants for all expenditures on the premises made by him for improvements and for taxes, etc. Tucker v. Dean, 2 Miss. Dec. 660; Bennett v. Bennett, 84 Miss. 493, 36 So. 452. And this is the general law of the country.

The general law everywhere is that persons acting as a trustee for others must act in any given instance as any reasonable man would act about his own affiairs. 26 R. C. L., page 1281, par. 131; Joor v. Williams, 38 Miss. 546; Corley v. Bishop, 58 So. 360.

The complainants waited more than thirteen years before they took any action whatsoever to attack the sale made by their mother; and hence, by their own acquiescence they ratified and approved and are now estopped from attacking the sale; Scott v. Freeland, 7 S. & M. 409 and cases there cited.

Tullos & Martin and Hughes, Noble & Lane, for appellees.

The only question to be decided is whether or not a co-tenant can purchase the outstanding title and set it up as against the other co-tenants. It seems to us that it is settled in this state by a long and unbroken line of decisions that a co-tenant who purchases the outstanding title purchases it for all his co-tenants, and whatever title he acquired thereby inures at once to their benefit. This has been the law in this state for all time and there appears to be no exception to this rule, unless the other co-tenants by their conduct or acts work an equitable estoppel. There is no contention on the part of the appellant that an estoppel has been worked by the other co-tenants, either by their conduct or by the circumstances surrounding the case.

The case of Dickerson v. Weeks, 106 Miss. 804, 64 So. 731, is more nearly in point with the case at bar than any other reported case from our state. There a wife was the owner of the land on which she had given a deed of trust, and after her death the deed of trust was foreclosed and the husband attempted to buy it and set up title as against his children. This the court held he could not do. See also; Smith v. McWhorter, 74 Miss. 400, 20 So. 870; Wyatt v. Wyatt, 82 Miss. 227, 32 So. 317; Walker v. Williams, 84 Miss. 297, 36 So. 450; Beaman v. Beaman 90 Miss. 762, 44 So. 290; Watson v. Vinson, 108 Miss. 600, 67 So. 61.

Counsel for appellant in the case at bar charges that the appellees waited an unreasonable time before filing this bill. In the Dickerson case, supra, the court held that nine years was not an unreasonable time, and in fact, held that the lapse of time was no bar.

We concede the contention of counsel for appellant that one co-tenant is entitled to be reimbursed for all expenditures made by...