Savage v. Bradley

• Decision Date: 07 February 1907
• Citation: 43 So. 20,149 Ala. 169
• Parties: SAVAGE ET AL. v. BRADLEY ET AL.
• Court: Alabama Supreme Court

43 So. 20

149 Ala. 169

SAVAGE ET AL. v. BRADLEY ET AL.

Supreme Court of Alabama

February 7, 1907

Appeal from Chancery Court, Conecuh County, W. L. Parks, Chancellor.

Suit by Samuel Bradley's heirs against L. W. Savage and others. From a decree overruling defendants' motion to dismiss for want of equity and demurrers to the bill, they appeal. Reversed and rendered.

This is a bill filed by several heirs of Samuel Bradley, deceased seeking to be let in to redeem certain lands alleged to belong to them all as tenants in common. The bill alleges that Bradley died seised and possessed of certain lands describing them, and that prior to his death he had mortgaged said lands to certain persons, who, in pursuance of the power of sale contained in the mortgage, sold them; that in 1895 certain ones of the heirs redeemed said lands from the mortgage sale, paying a sum named as redemption; that these certain heirs mortgaged the lands to one Dunn for a sum named; and that Dunn, in default of payment, sold said lands under his mortgage, and they were purchased at said sale by L. W. Savage, who in turn conveyed them to his wife. The sale is alleged to have been made in December, 1898. This bill was filed May 10, 1905.

Hamilton & Crumpton, Jas. A. Stallworth, and Stallworth & Burnett, for appellants.

J. F Jones and M. A. Rabb, for appellees.

McCLELLAN J.

This appeal results from a decree overruling motion to dismiss for want of equity and demurrers to the bill. As a general rule a co-tenant cannot by his own act prejudice in any degree the title or right of his fellows. A joint tenancy is, as to the common property, a relation in the nature, if not in fact, of trust and confidence; and from this relation presumptions of the utmost favor to all joint owners arise, to the end that the title and rights of each in the joint estate may be preserved unimpaired. Freeman on Co-Tenancy, §§ 166, 172; Brittin v. Handy, 73 Am. Dec. 497. Certainly one co-tenant may at forced sale buy the estate, and thereby in severalty become the owner; but he cannot, by redeeming from mortgage sale, invest himself with an absolute, indefeasible title to the joint property. In such latter case the nonredeeming co-tenants have the right, which is only an equity, to elect within a reasonable time to contribute their proportion of the outlay made by the redemptioner in effecting the redemption and to rehabilitate their title. This act of redemption is well declared to inure to the benefit of all his co-tenants, provided within a reasonable time they elect to contribute and reinstate their title. Lehman, Durr & Co. v. Moore, 93 Ala. 186, 9 So. 590; Brittin v. Handy, 73 Am. Dec. 497, and note; 17 Ency. Law, p. 679, div. 8.

The bill here is well filed within this principle, and enjoys its favor, unless, as is contended by appellants, under their motion to dismiss for want of equity, the laches of the appellees denies them its protection. In other words, we are confronted in this case with the question: Have the complaining co-tenants asserted within a reasonable time their election to take the benefit of the statutory redemption of the common estate by their fellow? The appellants insist that two years from redemption is the...