Eck v. Tate

ANDERSON, J. Conceding that the partition heretofore made by the chancery court was by a consent decree, and was therefore a voluntary one, and that no lien was implied by law in favor of the coparceners for a failure or partial failure of title, as would be the case in an involuntary partition, there was a contract lien preserved by the decree in favor of Mrs. Tate and Ellen Hough for their protection, in case of a failure of title to certain lands allotted to them in section 23, and as to which Mrs. Tate was dispossessed to the extent of her part. Mrs. Tate having a lien on the land that was alot-ted to the other coparceners, and no remedy at law for the enforcement thereof, a court of equity by virtue of its general jurisdiction will enforce it. — Eslen v. Wheeler, 98 Ala. 200, 13 South. 473. “In this case contribution is asked, and it seems to us to be the most practicable and just mode of compensating the injured parties, and it seems to us that they are entitled to this against the co-tenants and their assignees, because the partition is made, not by deed, but under the statute, and because the complainants have lost a portion of land allotted to them by paramount title. We do not think [332] tbe statute of limitations bars a recovery against any one liable under this opinion to make contribution, because no right to have such contribution accrued to the complainants until they were evicted by paramount title, and sufficient time has not since elapsed to constitute a bar to their recovery.” — Sawyers v. Cator, 8 Humph. (Tenn.) 280, 47 Am. Dec. 608. It would seem from the weight of authority, and which is in conformity with equity and justice, that Mrs. Tate would not be entitled to compensation for the full value of the land which was lost under a paramount.title, hut the compensation only for three-fourths the value, which would be three-fourths of three-fourths of the share allotted to her. In other words, in ascertaining the amount due her, the complainant should bear her proportionate share of the loss of what Was the common property before the partition. It is insisted that the bill shows that much of this land has passed into the hands of third persons, and that it should not be charged with the payment of this claim until the complainant has failed to get contribution from the other co-tenants. It is true that the remedy prescribed is termed a bill for contribution; but the doctrine appears to be, as laid down in the well-considered case of Jones v. Bigstaff, 25 S. W. 889, 95 Ky. 395, 44 Am. St. Rep. 245, while the right of action does not pass to the assignee and is strictly confined to the injured co-tenant and his heirs, it can be enforced against what was the common property in the hands of the alienee of the other co-tenants. Says the court, in speaking of the case of Sawyers v. Gator, supra: “That case also establishes the doctrine that an alienee from one tenant may be entered upon by a co-tenant, who has sustained loss ; for the reason that, if such a rule was not recognized, it would place it within the power of the [333] parcener to defeat (lie remedy by making a conveyance of his parcel.” . The purchasers from the other co-tenants were chargeable with notice of the law, and knew that their grantors claimed title under the partition, and in purchasing from them acquired the land subject to all liens or, claims fastened to the land as the result of the partition, and the complainant can go upon the land without first seeking a contribution from the co-tenants. The lien, being a contract one, was a charge upon the other land, and upon the death of Mrs. Tate could he enforced by her personal representative. — King v. Seals, 45 Ala. 415; Cooper v. Davison, 86 Ala. 367, 5 South. 650. The appellant insists that the exhibit of the judgment shows that it was rendered by consent, and that the bill therefore fails to show such an eviction under a paramount title as would give the complainant the right to maintain the present bill. The rule seems to be that a resistance is not necessary to constitute an eviction. One may yield in good faith to a person having a paramount title. “It has been said that by so yielding possession, or by making no resistance to the entry, the tenant takes upon himself the burden of proving that such entry was under and by virtue of a paramount title.” — 11 Am. & Eng. Ency. Law, 482, and cases cited. While the bill in the case at bar shows that a consent judgment was rendered for the land, it avers that the plaintiff to the suit had a paramount title wdnch had been so adjudged by the Supreme Court in the injunction case. The statute of limitations could not commence to run until Mrs. Tate was ousted, which could not have occurred until after the death of Mrs. McYay, whose life estate was OAvned by the ancestor of the parties to the partition suit. [334] Mary A. McGhee, being a mere alienee, was not entitled to any contribution as to that part, of section 23 involved in the McVay claim, and her cross-bill was without equity. Of course, she could not be chargeable by way of contribution for so much of the land owned by her as was embraced in the land in said section 23, known ás the “McVay tract.” The deed made to Mrs. McGhee did not operate to assign any lien of her gran- ■ tor, and she is remitted to her said grantor for any relief as against the failure of title to the land conveyed her. The chancellor properly overruled the demurrer and motion to dismiss the original bill, and the decree in this respect is affirmed, but erred in not sustaining the motion to dismiss the cross-bill for want of equity, and the decree in this respect is reversed, and one is here rendered sustaining said motion. Affirmed in part, and reversed and rendered in part. Tyson, G. J., and Dowdell and McClellan, JJ., concur.