Tisdale v. Tisdale

• Decision Date: 30 April 1855
• Parties: BARNEY TISDALE et al. v. DANIEL TISDALE et al.
• Court: Tennessee Supreme Court

34 Tenn. 596

BARNEY TISDALE et al.

v.DANIEL TISDALE et al.

Supreme Court of Tennessee.

April Term, 1855.

FROM HAYWOOD.

This bill was filed in the chancery court, at Brownsville, in December, 1851, upon the facts and for the purposes fully indicated in the opinion. At the January term, 1855, there was a decree by I. B. Williams, chancellor, in favor of the respondents, from which the complainants appealed.

A. Wright and T. G. & W. M. Smith, for the complainants.

M. & H. Brown, for the defendants.

Caruthers, J., delivered the opinion of the court.

The complainants and defendants are all the heirs of John Tisdale, Sr., who died in Boston, in 1798, the owner of a large quantity of lands in West Tennessee. The lands were encumbered, at the time of his death, with a mortgage in favor of Blake & Green, assigned to Mrs. Mary Gilman, and the title otherwise in dispute. Much legal controversy in relation to it ensued, which was mostly attended to, and conducted to a successful result, by James Tisdale, Jr., one of the heirs. The estate being insolvent, with the exception of this property, and most of the heirs otherwise poor and unable, or unwilling, to discharge the mortgage, a decree passed, in 1830, for the sale of the land to foreclose the mortgage. To meet this emergency, and save the lands, the defendant Daniel, and his brother-in-law, Horton, borrowed $6,000 from one Cummings, for which they gave their bond, with personal surety. With this money Daniel attended the sale under the decree, and in November, 1830, bought 5,000 acres of the land at 70 cents per acre, and at a sale for the balance, in May, 1831, bought 28,580 acres, at 9 cents per acre; making, in all, 33,580 acres, for $6,072. These sales were confirmed, and the title vested in the said Daniel, individually; who constituted the defendant, Loving, his agent to sell the land as he could. His first sale by Loving, under this authority, was made in 1832, and up to the filing of this bill he had sold, and paid over the proceeds to the said Daniel, to the amount, as charged in the bill, of $47,000, but he states from $35,000 to $40,000. The mortgage debt, with interest, was about $6,000, and this was paid by Daniel on his said purchases in November and May. The debt to Cummings was paid at various times from 1836 down to 1844, when the balance of $3,245.19 was paid. These payments were doubtless made, by Daniel, out of the proceeds of the land sales made by Loving, as his agent.

The object of this bill is to make Daniel account, as trustee, for all the money he may have received, after deducting the amount paid out by him on said note to Cummings, and other expenses, together with a just compensation for his trouble; and to establish the title of complainants as co-heirs to the land still unsold, and held in the name of defendant.

The defence is, 1st, that he purchased the land at a judicial sale, for himself, with funds of his own, for which the complainants were in no way liable, after they had all failed, and some of them refused to become bound, and consequently he is entitled, individually, to the benefits of his purchase, as the risk, hazard, and trouble were all incurred by him; and, 2d, that he is protected by the statute of limitations, and at all events by the lapse of time, as it was more than twenty years from his last purchase, and the vestiture of title, before the bill was filed.

1. Can the ground of defence first stated avail him? We think not, for several reasons. He was jointly interested in the land with the complainants, as tenant in common by descent. As such, he will be regarded as acting for all in the removal of an encumbrance, or perfecting the title, unless the contrary is clearly made to appear. 1 White & Tudor Ld. Cas. 56. Tenants in common by descent are placed in a confidential relation to each other, by operation of law, as to the joint property, and the same duties are imposed as if a joint trust were created by contract between them, or the act of a third party. It may be different where they claim title by distinct purchases, even of the same original title, but that is not the case before us. Being, then, interested with and for each other in the property, each one is prohibited from acquiring rights in it antagonistic to the others. 1 White & Tudor, 53. Being associated in interest as tenants in common by descent, an implied obligation exists to sustain the common interest. This reciprocal obligation will be vindicated and enforced in a court of equity, as a trust, These relations of trust and confidence bind all to put forth their best exertions, and to embrace every opportunity to protect and secure the common interest, and forbid the assumption of a hostile attitude by either; and, therefore, the purchase by one of an outstanding title, or an encumbrance upon the joint estate, in his own name, will enure to the equal benefit of all, but they will be compelled to contribute their respective ratios of the consideration actually given. 6 Dana, 171, 176, and 5 Johns. Ch. 388, where Chancellor Kent, in the case of Vanhorn v. Fonda, lays down the doctrine ably and correctly: “The condition of equal contribution to the expense of the purchaser has been complied with in the case before us, by the application of the proceeds of the sales of the common property. If this had not been so, and the money not brought into court, the same would be raised out of the land by sale.”

There may be cases where one tenant in common may purchase in an outstanding title for his own benefit, but this is not one of them, nor is this a case of that kind; but it is one where an encumbrance of a mortgage was removed. In such a case we are aware of no exception to the application of the rule stated.

But the purchase in this case was made under a decree to foreclose the mortgage made by the ancestor upon the property descended. This, it is insisted, saves the defendant from the operation of the general pervading principle we have laid down. We are not prepared to admit that there is any such exception, where the decree is made for the satisfaction of an encumbrance, and no provision inserted in the decree, allowing the common owners to become purchasers. But in such a case, we think, the law is otherwise. Any one of the joint owners may purchase, and the sale is good, but the benefit must enure to all, and not to him alone, unless the others choose to acquiesce, in it, either before or after the purchase, so as to bind them; and in such a case as this there can be no difference between a sale under the deed and a decree upon it. Whether the same principle would apply in sales for the general debts of the ancestor, or for partition, need not now be considered.

In the case under consideration, however, we do not think it important to examine that proposition further, as we regard the defendant in the light of a direct express trustee for the complainants, in his whole connection with these lands, from and at the time of his purchase to the present time. We think it is clearly established that he was clothed with the character at the commencement, and that it has never been successfully thrown off; but that it closely adheres to him, and must regulate the rules of his liability.

This depends upon a controverted fact in relation to the nature and objects of a writing executed by him and deposited with his brother-in-law, Horton, now deceased, whose children are complainants. Much proof and argument have been directed to this point. The bill charges that the said sum of $6,000 was borrowed by defendant and Horton, for the express object of redeeming the land from the mortgage of Mrs. Gilman, for the benefit of all the heirs, and placed for that purpose in the hands of defendant, as agent, whose obligation was executed to that effect, and retained by Horton till 1842, when it was delivered up to defendant, in conformity to some private arrangements between themselves, and destroyed. The answer admits the existence of a paper, but says it only embraced stipulations between Horton and himself, which were complied with at their settlement in 1842.

“The precise language of this agreement” (says the answer) “is not recollected by the defendant, but his best remembrance is that he was to give the said Enoch Horton a share, as one of the heirs of James Tisdale, of all such lands as he might purchase.” In the next paragraph, in answer to an allegation and interrogatory in this bill, he adds:

“Something was said in the agreement about the heirs of James Tisdale, but what it was this defendant cannot recollect, nor has he any opinion or belief as to what interest, if any, was secured to said heirs by said agreement. Of one thing he is very certain, that the heirs of said James Tisdale were not consulted about the agreement, nor were any but this defendant and Horton parties to it, nor was Horton in any way their agent, or acting for them in the matter,” nor was it intended or agreed that he was to act as trustee for them, nor were any of them but Horton to be interested in any purchase he might make. He states that he afterwards, in 1842, settled with Horton, and paid, for his interest, a debt which he owed to Simon Tisdale, of $3,386.84, for which a receipt is exhibited. This, he says, he agreed to do, upon the condition that...