Shelby v. Rhodes

• Citation: 105 Miss. 255,62 So. 232
• Decision Date: 09 June 1913
• Docket Number: 16,262
• Court: United States State Supreme Court of Mississippi
• Parties: RUSSEL B. SHELBY v. W. L. RHODES ET AL

62 So. 232

105 Miss. 255

RUSSEL B. SHELBY v. W. L. RHODES ET AL

No. 16,262

Supreme Court of Mississippi

June 9, 1913

APPEAL from the chancery court of Coahoma county, HON. M. E. DENTON Chancellor.

Suit for partition by Russel B. Shelby against W. L. Rhodes and others. From a decree dismissing the bill, plaintiff appeals.

The facts are fully stated in the opinion of the court.

Affirmed.

Maynard & Fitzgerald, for appellant.

We contend, first, that upon the death of Mary E. Shelby, Russel B. Shelby and W. W. Shelby became tenants in common in the property in controversy, regardless of whether the title of Mrs. Shelby was good or not. Section 1543, Code 1890; Faulkner v. Thurman, 23 So. 584, and the unbroken line of authorities since that time. It is an elementary principle of law in the state of Mississippi that whatever claim the ancestors may hold to the lands descends to the heirs and cotenants.

Second that the deed from W. W. Shelby to W. L. Rhodes conveyed to said W. L. Rhodes a one-half undivided interest in the property and created a tenancy in common between W. L. Rhodes and Russel B. Shelby, complainant herein.

"A sale by a joint tenant, or tenant in common, of the whole of the common property, passes only his interest therein and does not affect the interest of his cotenant in common with the other original tenant." 17 Am. & Eng. Ency. of Law (2d Ed.), 680.

"Alienation of the whole of the common property by a cotenant conveys only his individual interest and leaves the cotenant in the same position with each other and the purchaser." Code 1906, section 2774.

It makes no difference whether Rhodes intended to take as a cotenant or not, or whether he intended to hold adversely to the complainant herein. By operation of law, as above stated he was created a cotenant, and as he could not bring to the notice of the minor his intention to hold adversely to him he will be presumed by this court to have held the title and possession for his cotenant.

"Tenants in common by descent occupy a confidential relation towards each other by operation of law as to joint property, and the same reciprocal duties are imposed as if a joint trust were created between them or by act of a third person, and their mutual duties to sustain and protect the common interest will be vindicated and enforced in a court of equity as a trust, and they, and those claiming under them, with notice, cannot assume a hostile attitude towards each other in reference to the common property." 38 Cyc. 15; Clements v. Cates, 4 S.W. 776.

The above case is well presented, directly in point and we ask a careful reading by the court.

"C. T. and B. owned the lands as tenants in common and "C" was in possession. His possession could not become adversary to them or those claiming under them, without notice that his claim was antagonistic. There must be shown such an intent to oust as would justify them in bringing an ejectment suit against him." Bentley v. Callighan, 29 Miss. 304; Day v. Davis, 65 Miss. 253; Hignite v. Hignite, 65 Miss. 447.

Third, that being such cotenant W. L. Rhodes could not purchase the outstanding title to the common property to defeat cotenant's title, and if said purchase was made it inured to the benefit of all the cotenants, even though the common title under which the property is held is not a true title.

"Where one of the several tenants in common purchased an outstanding title the fact that the common ancestor of all the cotenants had no title, or a defective title, will not shield him from liability to account to his cotenants as trustee of the property purchased; the opposite rule would abrogate the doctrine forbidding the purchase by one tenant in common of an outstanding title adverse to his cotenants." Slement v. Cates, 4 S.W. 776.

"To hold that appellees are not entitled to the benefit of the purchase of appellant because their father had not a legal title at the time of his death would be a denial of the rule forbidding one cotenant taking advantage of the defect in a common title by purchasing an outstanding title or incumbrance and asserting it against his companions and interest. Where is the difference between a want of title and a defective title? If the outstanding title is paramount to that of the cotenant they in fact have no title. To hold therefore that those holding as cotenants are only bound by the rule when they have title is holding that they are bound by it only when it can afford no protection one against the other and that they are free to disregard the relations of trust and confidence, the rule was adopted to uphold, except where neither can injure the other." Ibid. 778.

"A cotenant cannot in an action against him by his cotenant to be let into possession justify an ouster of plaintiff by setting up an outstanding title purchased by him while in possession under the common title, although such title so purchased be the true one." 38 Cyc. 43, and note 61.

"Where two cotenants are in possession of land under an imperfect title devised by a common ancestor one of them cannot buy an adverse outstanding title to disseize or expel his cotenant, but such purchase will inure to the common benefit." 5 Johnson, Chancery (N. Y.), 388, Law Ed. Chanc. Rep., Vol. 1, p. 1118 and note; also Venable v. Bauchamp, 28 Am. Dec. 74.

"The same policy of the law which prevents one tenant in common from buying up and successfully asserting as his own an outstanding title against his cotenant appertains when a cotenant seeks by showing the true title in another to defeat another cotenant of any right which the latter may undertake to assert." 96 Miss. 394.

"No outstanding title can be set up to defeat the claim of the complainants as owners, whether the party attempts to assert it as owner or merely attempts to show that it exists in another." Ibid. 395.

Fourth, that Bessie T. Rhodes, the wife of W. L. Rhodes, at the time she purchased the outstanding title, of Lula B. Lindsley stood in relation to Russel B. Shelby, her husband's cotenant, exactly as her husband did, namely, she was a cotenant and could not purchase the outstanding title.

"One whose wife owns an undivided interest in lands, is, upon grounds of public policy, disqualified from purchasing a superior title so as to obtain the cotenant's interest."

Also "If the rule which prevents one spouse from securing a title where the other is disqualified rested only upon a supposed privity or estate between them, it might well be argued that our statutes, on the subject have destroyed its foundation. But the rule is found in good considerations and public policy, and conclusively imputes to the one, as derived from the other, knowledge of those facts the existence of which precludes the other from action. The opportunities that would be afforded for fraudulent practices would be so numerous and the difficulty of exposing them so great, that courts apply the doctrine of estoppel to both, and thus closes the door that offers the temptation." Roberson v. Lewis, 68 Miss. 69; Clark v. Rainey, 72 Miss. 151; Hamblett v. Harrison, 80 Miss. 118; Smith v. McWhorter, 74 Miss. 400; Beaman v. Beaman, 90 Miss. 762.

Fifth, that neither W. L. Rhodes nor Bessie T. Rhodes can question the common title under which they obtained possession of the land in controversy in this or any other suit, and this whether the common title was the true one or not.

"A tenant in common claiming a right to the possession of property as such will not be permitted to assail the common title or call its validity into question. 17 Am. & Eng. Ency. Law (2 Ed.), 680.

"If from the pleading or evidence it appears that there is a common source of title, or in other words a grantor ancestor under whom all the parties claim, it is sufficient to prove title from or under him and not at all necessary to show the source of his title." 30 Cyc. 245; 54 N.E. 1014; Code 1906, sec. 551.

"Where both parties claim from a common source this is an admission that the title is in such source, and if the complainant shows that he had the title derived therefrom he is entitled to a decree without further proof of title." 67 Miss. 729.

It is true that the answer denies the common source of title but the allegations of the answer explain why this common source of title is denied. It is not denied that defendant went into possession of the land under the deed from W. W. Shelby, and by answer to interrogatory No. sixteen and cross interrogatory No. two, W. L. Rhodes, the defendant, admits that he went into possession of the property and was living on it two or three years before he knew that Russel B. Shelby claimed to own any interest in the land. Defendant was at that time in possession under the deed from the common source of title and is of course estopped from denying the title.

Sixth, that although W. L. Rhodes accepted the deed from W. W. Shelby as conveying the whole of the property, he, nevertheless, could not hold adversely to his cotenant Russel B. Shelby, the complainant. 64 Miss. 253; 65 Miss. 447; 79 Miss. 302.

Especially since complainant was at all times, until the filing of this suit, a minor to whom no notice of adverse possession could be imputed or actually given. Section 2746, Code 1890; section 3106, Code 1906; Bentley v. Executor, 79 Miss. 302.

"A tenant in common out of possession has a right to rely upon the possession of his cotenant as one held according to the title, and for the benefit of all interested, until some action is taken by the other evidencing an intention to assert adverse and hostile claim. If one enters upon the land of a sole owner, and without his consent, he must know that such possession exists, and, within the time permitted by law, take steps to...