Roberts v. Thorn

• Decision Date: 01 January 1860
• Citation: 25 Tex. 728
• Parties: FELIX G. ROBERTS AND NOEL G. ROBERTS, EXECUTORS, ETC., v. SUSAN W. THORN AND OTHERS.
• Court: Texas Supreme Court

25 Tex. 728

FELIX G. ROBERTS AND NOEL G. ROBERTS, EXECUTORS, ETC.,

v.SUSAN W. THORN AND OTHERS.

Supreme Court of Texas.

1860.

Where tenants in common of a tract of land acquired their interests under different instruments, purchased at different times, and there being no agreement between them respecting the title, if one of them obtains a superior outstanding title, or as in this case, in order to protect his own doubtful title, locates and causes to be patented the land so held by them as tenants in common, such acquisition by him does not inure to the benefit of the other, although the other offer to pay his ratable proportion of the outlay and expenses of his co-tenant in procuring such title.

Although, before the location made on the land held in common, the tenant in common so locating had brought suit to recover the possession of the land from a third person holding adversely to both, and had notified his co-tenant in common thereof, and requested him to furnish counsel to assist in the prosecution, which he did; the statement of these facts in the petition can scarcely be said to be a sufficient allegation of an agreement between the parties to unite in defending and upholding the title.

It seems to be settled, that joint tenants and co-parceners are not permitted in equity to acquire an interest in the property hostile to that of the other; and therefore a purchase by a joint tenant or co-parcener of an incumbrance on the joint estate, or an outstanding title to it, is held at the election of his co-tenants, within a reasonable time, to inure to the equal benefit of all the tenants, upon condition that they will contribute their respective ratios of the consideration actually paid.

It seems that the same equity subsists between tenants in common, where the interest accrues under the same instrument, or act of the parties, or of the law, or where they have entered into some engagement or understanding with one another; and persons acquiring unconnected interests in the same subject by distinct purchases, though it may be under the same title, are probably not bound to any greater protection of one another's interest than would be required among strangers.

The principles which have been considered in this case, in respect to the reciprocal rights and duties of tenants in common, apply where there is a community of interest in a defective title, or a superior outstanding title or incumbrance; but if the supposed interest is worthless, or the land vacant, the parties owned nothing in it, and they could have therein no tenancy in common.

APPEAL from Nacogdoches. Tried below before the Hon. A. W. O. Hicks.

This suit was instituted by Felix G. and Noel G. Roberts, executors of the will of Elisha Roberts, deceased, against the administrator and heirs of Frost Thorn, deceased. The petition of the plaintiffs alleged that on or about the 24th day of September, 1834, one Adolphus Sterne claimed to own the Cordova grant of land, in Nacogdoches county, containing about three and a half leagues of land, on which day he sold and conveyed to Frost Thorn, in his life-time, one undivided half of said grant; that about the 7th day of January, 1835, said Sterne sold and conveyed the remaining undivided one-half thereof to Philip A. Sublett; that on or about the 17th day of January, 1838, said Sublett sold and conveyed to Elisha Roberts, plaintiffs' testator, two-thirds of his aforesaid interest of one-half; and that the said Elisha Roberts retained his aforesaid interest during his life, and which, plaintiffs claim, yet belongs to his estate.

The petition further alleges that on or about the_____day of_____, the title under which said Frost Thorn and petitioners, as executors, held said land, became exceedingly questionable; a great portion of the land having been located upon by others; that said Thorn had sold some portion of it, not leaving more than one league worth filing a certificate upon, which lay in two parcels, one-half of a league, or thereabouts, lying in the southeast corner of said tract, and the other half league or thereabouts, lying for northern boundary on the north line of said tract, between the northeast and northwest corners of said surveys. That the title to said Cordova grant, as derived through said Sterne, has never yet been adjudicated, but is still considered questionable and doubtful. That these two tracts or parcels of land were, on or about the_____day of_______, by said Frost Thorn located upon in his own name, by virtue whereof patents have issued therefor to him in his individual name, from the general land office.

The petition asserts that the file, location and patents inure to the benefit of petitioners as executors, as well as to said Thorn, in proportion to their respective interests derived through said Sterne. Plaintiffs aver that they would gladly have joined said Thorn in relocating said tracts and have paid their proportion in carrying such location into a patent, but had no notice or intimation of the intention of said Thorn to make said relocation. They aver that the value of the land certificate located as aforesaid by said Thorn, did not exceed $500, and that the other expenses incident to said location of patents did not exceed $_____, two-thirds of one-half whereof they offer to pay to the legal representatives of said Frost Thorn, deceased. By amended petitions they allege further, that before the location and patenting aforesaid, one Bailey, being a tenant on said land, was sued by said Thorn, of the pendency whereof he gave to plaintiffs' testator notice, and requested him to furnish counsel to assist in the prosecution of it, and that said testator, and after his death the plaintiffs as executors, complied with the aforesaid request. Thereupon they further say said Thorn abandoned and dismissed said suit, and immediately located and filed the certificates upon the land, without notifying plaintiffs or their testator of any such intention as before stated.

The petition prayed that two-thirds of the undivided half of said two parcels of land so located by and patented to the said Frost Thorn, deceased, be decreed to the heirs and legal representatives of said Elisha Roberts on payment by them of their proportionate rate of cost and expense aforesaid incurred by said Thorn to obtain said patents; the amount thereof to be ascertained on the trial of the cause. The plaintiffs prayed also for partition of the respective interests in said land.

The defendants filed a general exception to the petition, which was by the court sustained, and judgment rendered accordingly against the plaintiffs. The plaintiffs assigned for error, the court's ruling above stated.

H. C. Wallace, for the appellants. The rule now established is that “tenants in common are jointly seized of the entire estate, and the possession of one is the possession of all.” Story v. Saunders, 8 Humph. 663.

The entry of one tenant in common or parcener inures to the benefit of his co-tenant or co-parcener. Gill v. Fauntleroy, 8 B. Mon. 177. The theory of the law seems to be that each tenant in common is for certain purposes the agent of the other, to guard the possession and defend the title of the lands thus held. “As joint owners they are not entitled to charge each other for the services rendered in the care and management of the joint property, unless by special agreement.” Franklin v. Robertson, 1 Johns. Ch. 157. Each can bind the other by contracts for repairs and expenses incurred for the benefit of the common property. Peyton v. Smith, 2 Dev. & Batt. Ch. 325.

“An agent undertaking any business for another is disabled in equity from dealing in the matter of the agency upon his own account, or for his own benefit.”

“In chancery” says Duncan, J. (in the case of Heager's Ex'rs, 15 Serg. & R. 65, 66),“the principle is one never departed from, and is as binding as any axiom of the common law, that he who takes upon himself a trust, takes it for the benefit of him for whom he is intrusted, and not to take any advantage for himself. If the trustee or executor obtain the renewal of a term in trust, such renewal shall be for the benefit of the trust. Holt v. Holt, 1 Ch. Cas. 191. Nor will the circumstance of the lessor having refused to renew to the cestui que trust, he being an infant, differ the case. Ch. Cas. 61. There cannot well be a stronger proof of the inflexibility of the rule than this--he may decline to accept the lease, but if he does accept it, though the lessor would not grant the benefit to the infant, if the trustee chooses to take it, it inures to the benefit of the infant.”

“Where an executor or guardian,” said Kennedy, J. (in Galbraith v. Elder, 8 Watts, 81, 94, 95),“renews a lease, though with his own money, such renewal shall be deemed to be in trust for the person beneficially interested in the old lease.”

“The same principle has been applied as between mortgagor and mortgagee.” Holdridge v. Gillaspie, 2 Johns. Ch. 30.

“Courts of equity have said that if a trustee makes use of the influence which his situation enables him to exercise, to get a new lease, he shall hold it for the benefit of the cestui que trust. 1 Dow, 269; 1 Ch. Cas. 191; 1 Bro. Ch. Cas. 198.

“Indeed, it is a general principle pervading the cases, that if a mortgagee, executor, trustee, tenant for life, etc., who have a limited interest, gets an advantage by being in possession, or behind the back of the party interested in the subject, or by some contrivance in fraud, he shall not retain the same for his own benefit, but hold it in trust. Lord Manners, in 1 Ball & B. 46, 47; 2 Ball & B. 290, 298; and see an analogous case in Hudson v. Wallace, 1 Rich. Eq. 2, 4, 7, in which it is said there is a good will in favor of the former tenant which gives him an interest in the renewal.

In the case of Green v. Winter, 1 Johns. Ch. 27, 36, it is said a trustee is not permitted to use the information he gains as...