Venable v. Beauchamp
| Decision Date | 12 October 1836 |
| Citation | 33 Ky. 321 |
| Parties | Venable and Others v. Beauchamp. |
| Court | Kentucky Court of Appeals |
FROM THE CIRCUIT COURT FOR WASHINGTON COUNTY.
Mr McHenry and Mr. Chapeze for Plaintiffs; Mr. Hardin for Defendant.
Jereboam Beauchamp filed his bill in Chancery, asserting a superior equity under an entry for one thousand acres, made in the name of Joseph Rogers, to a tract of land held by Venable and others claiming from him, under the elder patent of Paul Carrington, also for one thousand acres.
Claim and title of complainant to the land in controversy, and facts of the case.
The Circuit Court sustained the complainant's entry, and decreed to him a considerable portion of the land held by the defendants under Carrington.
The entry of Rogers is as follows:--" 1786--September 19th Joseph Rogers, assignee & c. enters one thousand acres upon a pre-emption warrant, No. 710, on the south side of the Rolling fork of Salt River, about three miles below Muldrow's land; to begin on the bank of the said fork nearly opposite the cedar licks, running down the same, as it meanders, so far that lines at right angles to the general course thereof, southwardly, will include the quantity as nearly in a square as the situation of the land will admit of."
The identity and notoriety of the objects called for, are, in our opinion, sufficiently established; and as according to the principles of construction heretofore adopted by this court, the calls of the entry are sufficiently certain and special to give exact location to the land intended to be appropriated, we are also of opinion, that the entry is legal and valid. It must, therefore, if the complainant is entitled to take the benefit of it against the defendants, prevail over the elder legal title, on which alone they rely, for so much of the land held by them, as is covered by the patent of Rogers, and also by his entry, when laid down as it should have been surveyed, if its calls had been pursued according to their legal effect. The entry should have been surveyed by beginning at the point where, in descending the river from Muldrow's land, a line running from the centre of the Licks (as ascertained by the Surveyor's Report) and crossing the river, at right angles, will strike the opposite shore. It is obvious from the pla?? accompanying the record, that whether the entry be laid down as contended for by the complainant, or as suggested by the defendant, or as here directed by the Court, it must, in either position, include a large portion of the land within Carrington's patent, which is also included by the survey as actually made.
Under these circumstances, as the principal controversy between the parties, so far as regards the merits of the adversary titles, relates, not to the validity, but to the exact position to be given to the entry of Rogers, and as our opinion respecting the right of the complainant to recover against the defendants, under an adversary title, renders it unnecessary to ascertain the exact position of his entry, or the precise quantity of the interference, we have deemed it useless to state more minutely the particulars either of the title set up by him, or of the proof by which it is sustained.
It appears from the pleadings and proof in the cause, that the defendant Venable and a certain Byrd D. Hendrick were tenants in common of the one thousand acres of land contained in Carrington's patent; and that, before any partition made between them, Beauchamp purchased. by executory contract, Hendrick's portion of the land, and that being entitled to a conveyance from Hendrick, and being also desirous to sell his half of the land for the purpose of raising money, he, in conjunction with Venable's agent, made a division, by running a division line, and agreeing verbally, upon the portions which should be allotted to the parties respectively. Some time after which, and in order to effectuate the division, Hendrick and Venable (the latter by his attorney in fact) made a formal deed of partition, mutually relinquishing to each other the two portions of the land, according to the division and allotment previously made by Beauchamp, and mutually warranting the portions thus relinquished, against themselves, their heirs and all claiming under them. On the same day on which this deed of partition was acknowledged before the clerk (which was the day after its date), Hendrick also acknowledged a deed, bearing date on that day, conveying his portion of the land under the partition, to Beauchamp. It further appears, that about three hundred acres of the land which fell to Venable in the division, was in the adverse possession of Buckman, who held it under the entry of Rogers, and that Venable having evicted him by means of the elder title of Carrington, Buckman purchased the land from Venable, and sought his recourse against his original vendors. Beauchamp, however, had, in the mean time, urged him to enjoin the judgment in ejectment, on the ground of the superior equity derived from the entry of Rogers and having failed in this, as well as in a similar attempt to induce Buckman's vendors to assert their claim in equity against the patent of Carrington for the land held by Buckman and Venable, he at length purchased the entire claim derived under Roger's entry, for three hundred dollars, obtained a deed for it, and commenced this suit in his own name against Venable and Buckman.
Venable, in his answer, questions the equitable right of Beauchamp to purchase in, and set up against him, a title adverse to that of Carrington, under which both held, and thus to disturb the partition which had been made between them; and claims the right to consider him as making the purchase as trustee for the benefit of himself, as well as of those to whome Beauchamp had sold his portion of the land. This question has, also, been urged with considerable zeal and ability in this court; and we are of opinion that it is inconsistent with the principles of equity, to aid Beauchamp in the use which he is attempting to make of the adversary title thus acquired.
Answer of defendant, and matter on which he relies to prevent complainant from asserting any superior claim to the land, against him.
As a general rule, one tenant in common, before partition, is not permitted to purchase in a superior outstanding claim for his own exclusive benefit, and much less to use it for the expulsion of his co-tenant. Such a purchase is considered, in equity, as enuring to the benefit of both, and the purchaser is entitled to contribution. This principle arises from the privity subsisting between parties having a common possession of the same land, and a common interest in the safety of the possession of each; and it only inculcates that good faith which seems appropriate to their relative position.
One parcener, joint tenant, or tenant in common can not purchase in an adverse claim to the land, for his exclusive benefit; still less can he use it to expel his co-tenant. And, because of the reciprocal warranty, implied by law, as between the parties to a partition, their relation to each other, as to the title, remains the same after the partition as before; so that the tenant of one parcel can not place himself in an attitude hostile to his former co-tenants and the common warrantor.
But the more immediate question is, how far this privity and relationship subsists after the co-tenancy itself ceases; and to what extent the same principle applies to the tenants after there has been an actual partition, and thus a...
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