Robinson v. Lewis

• Decision Date: 27 October 1890
• Court: Mississippi Supreme Court
• Parties: C. L. ROBINSON v. W. H. LEWIS

8 So. 258

68 Miss. 69

C. L. ROBINSON v. W. H. LEWIS

Supreme Court of Mississippi

October 27, 1890

October 1890

FROM the chancery court of the second district of Hinds county HON. WARREN COWAN, Chancellor.

The appellee, Lewis, filed the bill in this case to confirm a tax-title to an undivided half interest in certain land acquired by him at a sale for taxes in March, 1887. At and before that time, his wife owned the other interest. She and her brother, J. A. Criddle, were tenants in common of the land, each owning an undivided half interest. Some time prior to the tax sale, the interest of Criddle was sold under execution, the appellant, Robinson, becoming the purchaser and he had a lengthy litigation with other parties in regard to this interest. Pending this litigation, Lewis purchased the said Criddle's half interest, his wife being tenant in common, owning the other half interest, as before stated.

Robinson was made a defendant to the bill filed to confirm the tax-title, and made his answer a cross bill, setting up the foregoing facts and seeking to vacate the tax-title. From a decree confirming the title he prosecuted this appeal.

E. E. Baldwin, for appellant.

A tenant in common cannot purchase a tax-title and hold it as against the share of his co-tenant. By his purchase at a tax sale, he merely acquires a lien, and not a title. Day v. Cochran, 24 Miss. 261; Davidson v. Wallace, 53 Ib. 475; Allen v. Poole, 54 Ib. 334; Harrison v. Harrison, 56 Ib. 174; McGee v. Holmes, 63 Ib. 50; Fox v. Coon, 64 Ib. 465.

Nor can any other person who is in privity with the co-tenant, or by his contrivance, acquire such title. Hardeman v. Cowan, 10 S. & M. 486; Taylor v. Eckford, 11 Ib. 2.

This is true of a wife or brother-in-law. Cameron v. Lewis, 56 Miss. 601.

Where the husband is so situated that he cannot purchase, the wife cannot acquire title, and vice versa. Hardeman v. Cowan and Taylor v. Eckford, supra.

D. S. Fearing, for appellee.

Lewis, the purchaser at the tax sale, was not a party to or in any way interested in any litigation between Robinson and the other parties as to the land in controversy, nor did he have any interest in the land. If it was ever true that the husband could not purchase under the circumstances of this case, it cannot be true in this state under the code of 1880, which emancipates married women and puts an end to all their common-law disabilities.

It is true that one cannot acquire an interest in a tax sale adverse to his co-tenant; but there is no such proposition as that in this case. Complainant had no interest whatever in the land. He could not be deprived of purchasing the undivided interest that was sold, simply by reason of the fact that his wife owned the other interest in the land.

OPINION

COOPER, J.

The decree of the court below must be reversed because of the incapacity of the complainant to purchase at a sale for taxes the interest of the co-tenant of his wife in the land. One co-tenant may not thus defeat the title of another to the common estate. Harrison v. Harrison, 56 Miss. 174; Fox v. Coon, 64 Miss. 465; 1 So 629. The spouse of the co-tenant is equally disqualified. Freem. Co-Ten. § 160; Lee v. Fox, 36 Ky. 171, 6 Dana 171; Burns v. Byrne, 45 Iowa 285; Rothwell v. Dewees, 67 U.S. 613, 2 Black 613, 17 L.Ed. 309; Busch v. Huston, 75 Ill. 343. In Cameron v. Lewis, 59 Miss. 134, and Carter v. Bustamente, 59 Miss. 559, this court repudiated what had been said in Hardeman v. Cowan, 10 S. & M. 486, and Taylor v. Eckford, 11 S. & M. 21, to the effect that the wife was in privity of estate with the husband, and that a purchase by her of a paramount title inured by operation of law to the benefit of a prior grantee of the husband. But it was distinctly said in ...