Smith v. McWhorter

Cooper, C. J., delivered the opinion of the court. By reason of her connection with the appellees as tenants in common of the lands sought to be divided, Miss Mona Mc-Whorter ought not, under the circumstances disclosed, to be permitted to hold, title to the land under her purchase at the trustee’s sale. But the appellees are, in our opinion, precluded from asserting their rights as against the appellant, Smith. That he was a bona,fide incumbrancer of the land,at the time the bill was exhibited seems clear. It was exhibited the day before the sale under the deed of trust was advertised to be made, and though no reference to the incumbrance is made in the bill, which purports to be one for partition only, it is evident that its principal object was to test the validity of the security held by Smith. As he had at that date no interest in 403 the land other than that of an incumbrancer, it cannot be doubted that he was made a party in order that the question might be settled whether his security bound any other share in the land than that of Mona McWhorter. We fail to perceive any evidence supporting the contention of appellees that the deed of trust to Chiles & Walker, at the sale under which Mona McWhorter became the purchaser, had been paid before the sale. On the contrary, we think it manifest that payment was designedly not made, in order that the sale might occur and the land be purchased by Mona McWhorter. If the appellees, who were then of age, were not consulted in reference to the arrangement, they were chargeable with notice of what had been done, and reasonable inquiry would have disclosed the manner in which Mona was dealing with the land. She was not a trustee for the appellees, unless they should elect so to deal with her; and, if they desired and intended to claim that she was, it devolved upon them to act within a reasonable time, and before the rights of innocent, third persons, induced to deal with her by her apparent ownership of the land, had intervened. Perry on Trusts, secs. 166, 218, 219, 829. No appeal has been prosecuted from the decree of the court below by any of the defendants, except Smith. We are, therefore, not concerned with the question whether any of the appellees are precluded from now fixing upon Mona McWhorter the character of trustee. As to Smith, none of the appellees is entitled to the land discharged of the incumbrances he holds. As he had not secured the legal title to the ■ land when the bill was exhibited, his rights are to be tested by the condition of things then existing. The court should have required the petitioners to pay to Smith the sum for which he held a lien upon the land as the condition on which partition would be awarded, and, if that should not be done within a reasonable time, should have dismissed the petition. Upon the return of the cause to the court below, such decree should yet be made. The decree is reversed.