Donnor v. Quartermas

SOMERYILLE, J. The bill, as amended, is one for the partition of real estate among tenants in common, and for an ■account of rents, and use and occupation, against the defendants, who are alleged to hold adversely to the plaintiffs under a tax title. 1. One of the defendants, Mrs. Sarah II. Hillyard, who is ■alleged to have owned an undivided five-eighths interest in the premises, is shown to have died since the bill was filed. As one purpose of the suit was to charge her with rents, and for use and occupation, it is insisted that the suit should have been revived against her personal representative, who became a necessary party after her decease. It is true that no account can be taken between the parties, ;so as to establish a debt against the estate, unless it is represented by an administrator or executor. And if an account for the rents and profits had been ordered against the estate of Mrs. Hillyard, or if the facts of the case authorized such a decree, and the complainants had insisted on such an account, by cross-assigmnents of errors, we would reverse the decree for the want of a necessary party defendant.—Tindal v. Drake, 51 Ala. 574: Jones v. Richardson, 85 Ala. 463. But no decree has been asked or rendered against the estate of Mrs. Hillyard, or against- the defendants Donnor and wife, for rents, or for use and occupation. The complainants may have abandoned the prosecution of this phase of the case, and, if so, the personal representative of Mrs. Hillyard will not be a necessary party. The evidence moreover, as said in the chancellor’s opinion, shows that Donnor and wife have been in the exclusive enjoyment of the property since the year 1880, and that they, and not the estate of Mrs. Hillyard, owe the complainants for the occiipation of the property, if any one. 2. The next inquiry relates to the tax title acquired by the defendant, Mrs. Donnor, by transfer from the State, under which the defendants áre alleged to have set up an adverse occupation against their co-tenants, the complainants. There are two grounds, on either of which we must regard the acquisition of this tax title as enuring to the common benefit of all the joint owners of the property on which the tax was assessed. (1.) The contract of December 10th, 1880, between the complainants and the defendants, -under which the defendants were allowed to occupy the premises free of rent, imposed on each of the defendants the express duty to pay the taxes on the property, in addition to keeping the improvements well insured against the loss or destruction by fire. (2.) The relation of tenants in common existed between the parties, For each of these reasons, Mrs. Donnor was disquali [170] fled to acquire any title founded on her own default in neglecting to pay the taxes. The transfer from the State of this outstanding tax title must, therefore, be construed to operate only as a payment of the taxes, enuring to the equal benefit of all the part owners, and not as a valid purchase of the interest of her co-owners.—Bailey v. Campbell, 82 Ala. 342; Jackson v. King, Ib. 432; 11 Amer. & Eng. Encyc. Law, 1082-1086. The purchaser so situated, according to the sounder Anew, can claim no benefit under such tax title, except as a basis for compelling his other co-owners to reimburse him for their pro rata share of the common burden on the land. Freeman on Co-tenancy & Part. (2d Ed.), § 158. 3. We need only add, that we are satisfied from the testimony, as was also the judge of the City Court, that the defendants, Donnor and wife, signed the agreement above referred to with a full knowledge'of its contents. How far it may have been binding, or otherwise, on Mrs. Donnor, by reason of the fact of her C0Arerture, we need not discuss, as the adverse assertion of title by her and the other defendants in possession, coupled with the violation of their assumed obligation to pay taxes on the property, fully justified the complainants in repudiating the continued binding force of the agreement on themselves, which they have undertaken to do by the filing* of this bill. If this Avere not so, the complainants would be without a remedy to prevent the knoAvn adverse occupancy of the defendants, under the tax title, from maturing into a perfect title against themselves.—Wells v. Shearer, 78 Ala. 142; Hughes v. Anderson, 79 Ala. 209. 4. One of the main contentions of the appellants, as we understand it, is, that the Chancery Court can exercise its jurisdiction to partition property, among joint owners or tenants in common, only by following the mode' of procedure prescribed by statute for the regulation of like proceedings by the Probate Court, where the ownership of the respective parcels is determined by lot. — Code, 1886, § 3244: The statute, it is true, declares that “the Chancery Court shall have concurrent jurisdiction with the Probate Court to divide or partition, or to sell for division or partition, any property, real, personal or mixed, held by joint owners, or tenants in common.” — Code, 1886, § 3262. And while the original jurisdiction of Chancery Courts to sell the lands of adults for division, Avithout consent, is purely statutory in this State, not having been exercised before the Code of 1886, the jurisdiction to partition such lands among co-owners is an acknowledged and independent head of equity jurisdiction, long exercised both in this country and in England. And it is well settled, that this jurisdiction, [171] of which the statute is merely declaratory, will be exercised by a court of equity on its own established principles, and with the use of its own better adapted and more flexible modes of procedure, unembarrassed by the procrustean rules which cramp the statutory jurisdiction of courts of law.—Marshall v. Marshall, 86 Ala. 386; Lyon v. Powell, 78 Ala. 351; Wilkinson v. Stuart, 74 Ala. 198; Freeman on Co-tenancy & Bart. (2d Ed.) § 428, said note, p. 560; Rutherford v. Jones, 60 Amer. Dec. 655; Story’s Eq. Jur. §§ 646-658. The practice of the Chancery Court in this State has always been, to administer this branch of its jurisdiction on strict equitable principles, and by equitable modes of procedure; and we hold that this court can not be confined to the statutory mode prescribed for the partition of'property by the Probate Court. — Code, 1866, § 3237. This is too obvious, from both reason and authority, to admit of doubt, or to require argument. 5. There is no error in that part of the decree of the court allowing the two female complainants, who are each shown to be tenants in common in the property, to unite in the bill fox partition, and to jointly elect to consider their several moieties as one moiety, and to have it set apart to them as one undivided fractional share of the whole. — Freeman on Cot. & Part. § 459. 6. So it may be considered as settled by the weight of authority, that every co-tenant is entitled to demand a partition of the common property, although such partition may be inconvenient, or injurious — it has sometimes been said, or even ruinous — to one or more of the parties in interest. — Freeman on Co-ten. & Part. 433, 438; 3 Pom. Eq. Jur. § 1389. Or, as said by Mr. Adams in his work on Equity, p. 230, it “may be demanded as matter of right, notwithstanding the difficulties by which a division may be embarrassed, or the mischief it may entail on the property.” 7. And the rule hi equity, in making partition among tenants in common, is for the court, if practicable, to so order the partition as to give the benefit of any improvements made on the premises to him who may have erected or made them;, and this is done by assigning to such part owner the portion of the estate on which such improvements are situated. Wilkinson v. Stuart, 74 Ala. 198; Sanders v. Robertson, 57 Ala. 465; 3 Pom. Eq. Jur. § 1389; Freeman on Co-ten. & Part. § 509; 11 Amer. & Eng. Encyc. Law, 1104 et seq. We discover no error in the record, and the decree is affirmed.