Harrison v. Cole

Mr. Justice Gabbert delivered the opinion of the court: On behalf of the appellees, it is asserted that, by the subrogation proceedings, the title to- ..the premises in controversy became vested in Stuart.& Murray. This contention is not seriously contro7 verted by appellant, the claim on his behalf being that, in the circumstances, such title canno-t.be asserted as against him. Without determining the question, we suggest that it may be doubtful if — 476 — Stuart & Murray really acquired any title to the premises. By the judgments to which we have referred, the paramount title was declared to he in Adams and his grantees, subject to the right of the Iliff heirs to be reimbursed for taxes paid. The amount of such taxes was a lien upon the premises. For the purpose of enforcing this lien, the decree in the accounting proceeding provided that, if the amount found due was not paid within a specified time, the original decree establishing the trust should be set aside, and the action instituted to have the trust established dismissed. Although Stuart & Murray were subrogated to the rights of the Iliff heirs, they have never asked that the decree establishing the trust be annulled and the action dismissed. So that, as yet, it might be said they have done nothing more than pay off a lien or incumbrance on the premises. We also suggest that it may be doubtful if plaintiff was bound by the accounting proceedings or the proceedings which led up> to the order subrogating Stuart & Murray to the rights of the Iliff heirs. He appears to have been notified of the former, but it does not appear that he was ever made a party thereto. He had no notice of the latter, and was not a party thereto, neither was he a party to the original action. We make these suggestions because we do not wish to be understood as having’ determined that Stuart & Murray have acquired any title to the premises by virtue of the subrogation proceedings, or that plaintiff was bound by such proceedings, or those in which the accounting for taxes paid by the Iliff heirs was had. We shall assume, for the purposes of the case, however, that Stuart & Murray did acquire the title of the Iliffs, and that plaintiff was bound by the proceedings to' which we have referred, and on such assumption determine if, under — 477 — the facts, plaintiff’s rights in the premises are barred. At the time when the subrogation proceedings were had, plaintiff and Stuart & Murray were co-tenants in the premises. They had acquired their respective titles from a common source, namely, from Adams and his heirs. This title was defective in that it was subject to the right of the Iliff heirs to be reimbursed for taxes; so that the title vested in plaintiff and Stuart & Murray was the paramount one by virtue of which'they were in, or entitled to, the possession of the premises, and, though subject to a lien, was never terminated by any action on the part of the Iliffs. We mention this because it appears to be contended on behalf of appellees that whatever rights they acquired by virtue of the subrogation proceedings, plaintiff was not entitled to any benefit in, because thereby they obtained an outstanding superior title. Possibly this contention might be correct if the title of Adams and those claiming’ under him had been terminated and the parties to the partition proceedings evicted; but such was not the case. Except for the title vested in Stuart & Murray through Adams, they would have had no standing upon which to base their right to be subrogated to the rights of the Iliff heirs, and the title or right they obtained thereby was but a perfection of the common title. Cotenants stand in such a relation of mutual trust and confidence towards each other that, as a general rule, the perfection of the common title through the purchase by one of an outstanding title to the common property inures to the benefit of his cotenant, and the title so acquired is held in trust for the latter to the extent of his interest in the premises if he elects within a reasonable time to contribute his share of the expenses necessarily in — 478 — curred in the acquisition of the outstanding title, unless he has repudiated the relation, or is estopped from claiming his rights. — Mills v. Hart, 24 Colo. 505 ; Franklin G. M. Co. v. O’Brien, 22 Colo. 129; Turner v. Sawyer, 150 U. S. 578; Freeman on Cotenancy, secs.. 154-156; Sneed’s Heirs v. Atherton, 36 Ky. 276; Current Law, vol. 8, 2116; Craven v. Craven, 94 N. W. (Neb.) 604; Asher v. Howard, 70 S. W. (Ky.) 277; Ryason v. Denton, 73 N. E. (Ind.) 74; Nalle v. Parks, 73 S. W. (Mo.) 596; 23 Cyc. 492; 17 Ency. 674. Plaintiff has never repudiated the relation between himself ■ and Stuart & Murray as cotenants-, and he is-not estopped from claiming to share in the benefits of the title acquired by them* unless it be upon the ground that he has not elected within a reasonable time to share therein by offering- to pay his just proportion of the expenses incurred by them in acquiring this title. To- the inquiry as to- what is a “reasonable time,” no positive answer, measured by a specific period, can be given, for the reason that, in all cases where that question is involved, each must necessarily be determined upon its own peculiar circumstances. — Freeman on Cotenancy, sec. 156. In order to protect the common. title, it was necessary to discharge. the claim of the Iliff heirs in the premises, and no blame can attach to-Stuart & Murray for taking the steps they did to protect the title in which they were interested. They were under no. professional obligations to take these steps so far as their clients or cotenants were conceimed; but .the. title which they claim to have acquired by the subrogation proceedings was peculiar in this respect, that it was ■ the one which, by the litigation they had carried on as attorneys for Adams and his — 479 — heirs, they sought to extinguish, and which, by their-action, - destroyed that which they had established on behalf of themselves and their cotenants. ■ They had profited by the litigation to the extent of having secured- an interest in the premises. The money which the plaintiff had originally advanced Adams on the strength of-the mortgage given had been expended, to some extent, at- least, in carrying on- litigation to establish the trust, and to this eltent their interest in-the premises had beembenefitted. Plaintiff contributed to the expense of ’defending the action commenced by bill of review. Stuart & Murray profited-by this expenditure. The taxes represented by the sum paid to the Iliff heirs were not taxes which plaintiff was personally obligated' to pay, because of his interest in the premises. It appears that plaintiff has paid his share of taxes since he became interested- in the premises; and something more, and that some of the money thus expended was for the benefit of interests which Stuart & Murray now claim. It also appears that, to- some extent, at least, he relied upon the assurance of Stuart & Murray at the time he took his mortgage from Adams, that the title to the premises mortgaged was good, and that they had acted as attorneys for Adams and his heirs in establishing their title to the premises from the inception of the litigation down to the date of the accounting. When plaintiff was informed by Stuart & Murray that it was necessary to- raise money to- discharge the amount found due the Iliff heirs in the accounting proceedings, lie expressed his willingness to- pay his proportion of such sum, and did offer to- pay one-half. This offer was not accepted. As between plaintiff, Stuart & Murray, and the heirs of Adams, there must necessarily be a question more or less complicated as to what taxes — 480 — and what proportion of the taxes paid by Stnart & 'Murray to discharge the Iliff lien, he should pay. Stuart & Murray were the counsel in the case, and, in fairness to the plaintiff, they should not merely have been content with, calling' upon him to pay his proportion, before the order of subrogation, but, being- familiar with the litigation, the interests of all parties, and the circumstances under which they Were acquired, should have informed plaintiff what amount of the sum expended by them he should pay as properly chargeable to- his interest. It does not appear that there has been any material change in the value of the premises since the subrogation proceedings, or that Stuart & Murray have been damaged because of plaintiff’s failure to pay his proportion of the amount which they paid in acquiring the interest of the Iliff heirs, or that they will not be fully recompensed if such proportion is now paid, with legal interest. In such circumstances, -considerable latitude should be allowed plaintiff, so far as time is concerned, within which to pay his proportion of the. money paid out by Stuart & Murray, and although two- years elapsed between the date of the subrogation proceedings and the time when he commenced his suit in partition, we are of the opinion that, taking into consideration the history of-the litigation instituted by Adams, its outcome, the relation of the parties, and all the facts and circumstances, that such period w,as not an unreasonable length of time within which plaintiff might be permitted to- reimburse Stuart & Murray by paying them his proportion of the money expended in acquiring the Iliff interest, with interest thereon. This- can be determined in the partition proceedings. Appellees call attention to the fact that, in the answer of plaintiff to the cross-complaint, he avers — 481 — that he was not obligated to pay any of the taxes represented by the money paid to secure the Iliff interest except by virtue of his ownership' under his deed, and further claims, by his.answer, that'he is entitled to have his interest in the premises partitioned and set off to him free from all claims of any of the defendants and cross-complainants, and that in none of his pleadings does he offer to do equity by offering to pay his proportion of the money expended in securing the Iliff interest. With respect to the first part of the answer referred to, we think it is sufficient to say that plaintiff has merely thereby stated that he was under no personal obligation to pay any of the taxes except such as accrued after he obtained his deed from the Adams heirs. Merely because plaintiff may have mistaken what his rights are under the facts disclosed by the pleadings, and may, in his answer to the cross-complaint, have claimed more than he is entitled to, cannot, in the circumstances, of this case, be construed as a refusal to stand his proportion of the expenses incurred by Stuart & Murray in protecting the common title. Besides, upon an account between the parties, it might be that his interest is not chargeable with any part of the sum advanced by Stuart & Murray. This can only be ascertained by taking an account and determining the obligations of the parties with respect thereto. It is true plaintiff nowhere offers to pay any sum; but the case under the pleadings filed is one in equity. The parties are all before the court, and partition of the premises upon such terms as will be equitable and just can be made. The judgment of the district court is reversed, and the cause remanded for further proceedings, as will not be in conflict with the views expressed in — 482 — this opinion, with lea've to the parties to amend their pleadings as they may be advised. Reversed and remanded. Chibe Justice Steele and Mr. Justice Musseb. concur. Tlie petition for rebearing' was beard and denied by the court, en banc. Chibe Justice Campbell not participating.. Mr. Justice "White and Mr. Justice ITill dissenting. ___