Ryason v. Dunten

• Decision Date: 06 January 1905
• Docket Number: No. 20,439.,20,439.
• Parties: RYASON v. DUNTEN et al.
• Court: Indiana Supreme Court

164 Ind. 85

73 N.E. 74

RYASON

v.DUNTEN et al.

No. 20,439.

Supreme Court of Indiana.

Jan. 6, 1905.

Appeal from Circuit Court, La Grange County; J. D. Ferrall, Judge.

Suit by Edward Ryason against Sarah J. Dunten and others. From a decree in favor of defendants, complainant appeals. Transferred from Appellate Court under section 1337u, Burns' Ann. St. 1901. Affirmed.

F. A. Foster, J. W. Hanan, and J. M. Van Fleet, for appellant. Miller, Drake & Hubbell, and McClaskey & Dunten, for appellees.

GILLETT, J.

This was a suit to recover the possession of a two-thirds interest in an 80-acre tract of land in La Grange county. The first paragraph of the complaint was in ejectment, the second was to quiet title, the third purported specially to allege the facts. The latter paragraph appears, on the whole, also to be a suit to quiet title. Appellees pleaded the general denial and the 10, 15, and 20 years' statutes of limitations. Appellant's counsel concede that all defenses were admissible under the general denial. The cause was submitted to the court for trial. At the request of the parties the court filed special findings of fact, together with conclusions of law thereon. The validity of each of the conclusions, which it is sufficient to state were all adverse to appellant, is drawn in question by assignments of error.

The findings disclose the following facts: In the year 1872 one John Ryason died intestate, the owner of said tract of land, leaving his widow Hannah, surviving, and also two children, appellant and a daughter by a former marriage. The daughter died in 1880, and appellant claims her interest as sole heir, but, as it appears that her one-third was purchased in 1875 by Charles Holmes, whom the widow has in the meantime married, the interest of said daughter, as the facts hereinafter stated will show, is not a factor in the decision of the case. At the time of the death of John Ryason there was a mortgage against the land. This mortgage was regularly foreclosed in the year 1875, and two years later the real estate was sold by the sheriff under the decree. During the year of redemption appellant's mother (said Hannah) became the owner of the sheriff's certificate by assignment. Upon the expiration of the period fixed by law for redemption said Hannah took out a sheriff's deed, which was recorded in 1878. Prior to the execution of said deed she had received the rents and profits as a tenant in common, but when the deed was delivered to her she entered into the full and exclusive possession of the land under the deed, claiming to own all of said land, and thereafter, until 1896, she paid the taxes, continued openly to claim said land by virtue of the deed, and received all of the rents and profits. The value of the rents and profits from the death of the ancestor was $75 per year. Appellant did not have actual knowledge that his mother had received a sheriff's deed for the land until 1895, but he knew from the year 1881 that she was receiving and claiming all of the rents and profits. He knew in 1883 that she had during that year sold timber from said land, and that she claimed to own the proceeds. He knew in 1886 that she had mortgaged the land to the school fund for $1,000. He was aware in 1890 that she had renewed said mortgage, and that she was claiming to own all of said land. On February 14, 1881, appellant's mother was appointed his guardian, as the minor heir of his grandfather. August 8, 1889, appellant became of age, and at the next term of court she filed her report in final settlement, in which she accounted for the rents and profits received by her from the lands which had descended to him from his grandfather, but made no account of the rents and profits of the land in suit; and she also reported that she had expended, as guardian, a large amount in excess of the income from the lands descended from appellant's grandfather. It is found that she supported appellant without charge during the entire period of his minority. November 27, 1895, a decree in foreclosure on said school-fund mortgage was duly rendered against said 80 acres in a suit wherein appellant's mother and her husband, Charles Holmes, were defendants, and a sale was therein ordered for the purpose of raising an amount approximating the sum of $1,200. In April, 1895, the land was sold on said decree, and it was bid in by the auditor, on account of the fund, for the amount of the principal, interest, and costs due under said decree. There was no redemption, and in September, 1896, the auditor took out a sheriff's deed, and immediately recorded it. In April, 1896, appellant brought a suit in said county to recover one-third of said land, making the auditor, appellant's mother, and her husband defendants. The defendants, other than the auditor, suffered a default. The latter filed answer, and, after the cause was submitted, appellant, on the advice of his counsel that the suit could not be maintained in said county, dismissed the action. May 26, 1897, appellee Sarah J. Dunten obtained a contract of purchase for the land from the auditor, paying $400 in cash, and executed four notes for $200 each, due respectively in one, two, three, and four years, with 6 per cent. interest per annum. She completed her payments in 1901, whereupon the auditor executed to her a deed, which she caused to be recorded in June of that year. This suit was commenced in February, 1902. There is a finding that appellee Sarah “bought said land in good faith, and had no actual notice or knowledge” that appellant claimed any right, title, or interest in the same at the time that she entered into said contract or at the times that she made said several payments and received said deed; that the first “actual notice” she had of appellant's claim was in February, 1902, when he made a demand upon her for possession. There is a finding that the auditor had “no actual knowledge or notice” that appellant claimed any right, title, or interest in said land at the time of the execution of “said school-fund mortgage” (whether the finding refers to the first mortgage or the renewal mortgage we cannot determine), and that said auditor had no “actual notice or knowledge” of any such claim at the time that he bid said land in. Appellant had knowledge in 1897 that appellee Sarah had purchased said land and had taken possession of it. At the time of said purchase the land was worth $1,000, and no more. Appellant resided with his mother in the town of La Grange, in said county, from the time that she received the sheriff's deed in 1878 until the commencement of the suit. The concluding finding is as follows: “That plaintiff has never made any demand on said Hannah M. Holmes for an accounting for the rents and profits of said land or for timber sold by her, and never intended to claim said land from her, but was waiting for said land to come into the hands of a stranger before enforcing said claim in this suit.”

Counsel for appellant contend that the sheriff's certificate, which was purchased by the mother, was held in trust for the common estate; that the law applied the rents and profits and the proceeds of timber sold on the demand of the mother, thereby extinguishing it; that the receipt of the rents and profits during the year of redemption was a waiver of the right to take out a deed; that the facts that appellant was not of age until 1889, that his mother was his guardian, and that they were tenants in common, prevented the statute of limitations from running; and that there were not sufficient facts found by the court below to constitute an estoppel.

We have no doubt that such was the trust relationship between appellant and his mother that upon an action seasonably brought she would not have been permitted to have availed herself of a title built upon an incumbrance against the common estate. Although there was back of the certificate of purchase a valid decree of foreclosure, yet the mother could not purchase the certificate without having it infected, while in her hands, with a resulting trust. The doctrine that a trust relationship, independent of any circumstances of fraud or overreaching, exists between tenants in common, does not appear to be recognized in England. Kennedy v. De Trafford, L. R. App. Cas. (1897) 180. We do not call attention to this fact with a purpose of casting any doubt upon the view which appears to prevail generally in the United States as respects tenants in common holding under the same title, but we refer to the fact as a background for the proposition that even in this country the doctrine has never been recognized except as an equitable one. Rector v. Waugh, 17 Mo. 13, 57 Am. Dec. 251;Elston v. Piggott, 94 Ind.14;Flagg v. Mann, 2 Sumn. 490, Fed. Cas. No. 4,847. Counsel for appellant are in error in their assumption that the demand which the certificate represented was by virtue of the trust relationship, merged in the common estate. In all ordinary cases the purchaser of an outstanding interest is entitled to hold the demand, whatever its character, as a means of securing to him the payment of his co-tenant's proportionate share. Watkins v. Eaton, 30 Me. 529, 1 Am. Dec. 637; note to Venable v. Beauchamp, 28 Am. Dec. 83. In Freeman on Co-Tenancy and Partition, § 156, it is said: “The purchase made by a co-tenant of an outstanding title or incumbrance is not void, nor does the interest so acquired by him, or any part of it, by operation of law, vest in his co-tenants. They may not wish to share in the benefits of his purchase; for, in their judgment, the title purchased by him may not be paramount to that before held in common. The law gives them a privilege which they may assert. This privilege consists in the right to obtain a conveyance of the title bought in upon their paying their share of the price at which it was bought. The privilege may be waived by an express refusal to reimburse the co-tenant for his outlay, or by...