Gray v. Jacobsen, 4403.

• Decision Date: 01 June 1926
• Docket Number: No. 4403.,4403.
• Citation: 13 F.2d 959,56 App. DC 353
• Parties: GRAY et al. v. JACOBSEN et al.
• Court: U.S. Court of Appeals — District of Columbia Circuit

56 App. DC 353, 13 F.2d 959 (1926)

GRAY et al. v. JACOBSEN et al.

No. 4403.

Court of Appeals of District of Columbia.

Submitted April 5, 1926.

Decided June 1, 1926.

Motion for Rehearing Denied July 10, 1926.

G. E. Sullivan, of Washington, D. C., for appellants.

F. S. Tyler and S. D. Willis, both of Washington, D. C., for appellees.

Before MARTIN, Chief Justice, and ROBB and VAN ORSDEL, Associate Justices.

MARTIN, Chief Justice.

This is an appeal from a decree in an interpleader cause, involving the proceeds of certain real estate sold under a trust deed. The facts in the case are stipulated upon the record.

On June 17, 1901, William Lambell Kimmell was seized in fee of an undivided one-fourth interest in certain real estate situate within the District of Columbia, and on that day he executed a deed of trust conveying the same to trustees, to secure the payment of 10 promissory notes of varying amounts, aggregating $3,493.05, payable to the order of Maurice Kelly within two years after date. The deed of trust was duly recorded in the land records of the District. On July 22, 1920, Kimmell died, without having paid any of the notes.

At the time when the deed of trust was executed, and during all of the time in question, the appellant Mrs. Gray was the owner of an undivided one-half interest in fee in said property, and the remaining undivided one-fourth interest in fee was owned by the other appellants as heirs of Andrew J. Kimmell, deceased. Continuously from and after the date of said trust deed in 1901, and up to the time of his death in 1920, said William Lambell Kimmell received one-fourth of the rents and profits of the premises, and thereafter his heirs continued to receive one-fourth of such rents and profits until the sale of the same; all of the rents and profits for the entire property having been collected by a single general agent, employed and designated by all of the owners of said property, which agent remitted to each owner his respective share of the rents and profits as collected. During this time William Lambell Kimmell did not pay, nor did any one pay for him, any part of his one-fourth share of the taxes assessed upon the property, nor did his heirs make any such payments after his decease; but all of the taxes assessed thereon, including penalties and costs, were paid by the other tenants in common. During said period the property as a whole was repeatedly sold at delinquent tax sales and redeemed by said cotenants with their own funds.

On May 15, 1923, the surviving trustee appointed by the trust deed sold the mortgaged one-fourth interest in the property, realizing therefor the sum of $3,500, less expenses, amounting to $307.92. The appellants thereupon alleged that the taxes paid by them upon said mortgaged share of the property amounted, with interest, to $2,985.57, and they demanded full payment of this sum from said proceeds. Their claim was based upon the contention that when one of several cotenants omits to pay his share of taxes upon the common property, where such taxes constitute a statutory lien upon the whole property, and where the entire property of all the cotenants may be sold under said tax...