Davidson v. Wallace

Campbell, J., delivered the opinion of the court. The appellees, as assignees of Wicks, exhibited their bill in chancery to compel an accounting for taxes paid, by him on land owned by him and Davidson as tenants in common, and for improvements made by him on the land, in pursuance of an agreement between the co-tenants to share the cost equally. The bill seeks contribution, and to have a lien declared on the land for the sum found due on the accounting sought. The administrators and heirs of Davidson are made parties, and the vendors of Davidson, who are shown by the bill to make some claim to the land, are also made defendants. The bill was demurred to, and demurrers overruled, and decree appealed from. It is insisted that the decree must be reversed, because, [479] it is said, a guardian ad litem was not appointed for minors shown to be such by the bill, and because notice to nonresident defendants was not published for one month. The bill does not show that any of the defendants are minors, and the notice was published for four consecutive weeks, which is all the law requires. Code, § 1013. The proper parties were before the court, and the complainants sought relief in the proper forum. Freeman on Cotenancy and Partition, § 321; 1 Story Eq. Jur. §§ 466, 477, 483. If one of the tenants in common expended money to discharge an incumbrance on the common estate, and made improvements for the common benefit, in pursuance of an agreement with his co-tenant to share the expense, he has a right to enforce a lien on the interest of the co-tenant in default to reimburse him such expenditures. Freeman on Cotenancy and Partition, § 263; 2 Story Eq. Jur. §§ 1234, 1237 ; 2 Sugden on Vendors, 426 ; Dart on Vendors and Purchasers, 433, 434; 8 Parsons on Cont. 282. Taxes were a lien on the land, for which it would have been sold if they had not been paid. If it had been sold, either of the joint owners could have redeemed, and asserted a lien on the land for the necessary expenditure. Freeman on Cotenancy and Partition, § 176. Wicks, having prevented the sale of the land by payment of the taxes, had the right to charge the interest of his co-tenant with a lien for what he should have paid, and that, too, without any agreement on the subject. The assignees of Wicks can assert his claim. The decree is affirmed, and cause remanded for the defendants to answer within sixty days after the mandate shall have been filed in the court below.