1. TENANCY IN COMMON. Purchase by cotenant inures to benefit of all other cotenants.
One cotenant cannot purchase to the exclusion of the other cotenants property in which they have a common interest. Such purchase inures to the benefit of all the other cotenants.
2. PARTITION. In partition suit, court should allow purchaser from cotenant, who bought common property at trustee's sale, sum received by cotenant for timber and expended by him in discharging incumbrances against common property.
In a case where one cotenant purchased at a trustee's sale the common property of all the cotenants and sells the timber growing on the land so purchased for a given sum of money which is used in discharging the debts against the common property, a court should allow the purchaser from the cotenant who bought at the trustee's sale the sum so received and expended in discharging such incumbrances to the vendee of such purchasing cotenant in a partition suit.
[*] Headnotes 1. Tenancy in Common, 38 Cyc., p. 40; On right of former cotenant to acquire title in his own right through or under a purchaser at a sale under a title or interest paramount to the common title, see note in 37 L.R.A. (N.S.) 831; 7 R.C.L., p. 858; 2 R.C.L. Supp. 467; 5 R.C.L. Supp., p. 427; 2. Partition, 30 Cyc., p. 231.
ETHRIDGE, J., delivered the opinion of the court.
B.F. Ezelle in his lifetime owned a certain tract of land in Smith county, a part thereof being in cultivation and a part being timber land. Some time prior to his death, he incumbered this land to a bank at Forest, Miss. After his death the deed of trust became due and payable. There were two years of crop failure or shortage, and his wife and children were unable to pay the deed of trust off from the proceeds of the crops. The deceased left a wife and nine children. The bank transferred the deed of trust to another, who proceeded to foreclose at a trustee's sale, at which sale the widow appeared and bid the amount of the incumbrance and the expenses for the property, amounting to three hundred fifteen dollars total. The property was conveyed to her. In order to pay this amount and some other debts owing by the decedent, including the funeral expenses, the widow sold the timber for six hundred twenty-five dollars, with which she paid off the deed of trust and some of the debts owing by the decedent, using all of the six hundred twenty-five dollars for that purpose. By subsequent conveyances the property was conveyed to the Gilchrist Fordney Company, a corporation. Before this last company purchased the property, a proceeding was instituted in the chancery court to confirm the title; but the children of the deceased were not parties thereto, although they lived at the time upon the property with their mother. A decree confirming the title as against other parties not parties to this suit was entered, and the appellant thereupon paid for the timber conveyed to it. All this occurred prior to 1912.
In 1920 the children of the decedent brought the present suit for a partition, setting up that the defendant owned a one-tenth interest by means of a conveyance from their mother. The defendant set up the facts above stated, and that it was entitled to all of the timber by reason of such purchase. The chancellor found for the complainants, adjudging that the appellant had a one-tenth interest in the property and was entitled to be reimbursed for the three hundred fifteen dollars and interest paid in discharging the deed of trust, with interest thereon, but did not allow anything for the balance of the six hundred twenty-five dollars expended in discharging the debts, including the funeral expenses of the deceased. The chancellor held that the purchase by the wife at the trustee's sale was a purchase for the benefit of the other cotenants; that as against them she did not acquire title, and that her sale only conveyed her personal interest plus the amount of money received and expended in discharging the incumbrance. The deceased owned two hundred forty acres of land at the time of his death, and the testimony shows that the widow paid out all of the six hundred twenty-five dollars in discharging the debts due by the deceased which would have to be discharged out of his property above his exemption.
We think the chancellor correct in holding that the purchase by the widow inured for the benefit of all of the tenants in common, but inasmuch as she obtained the six hundred twenty-five dollars for the sale of the timber, on the belief and under the theory that she was conveying a good title thereto, and that she used this money in discharging debts which the estate would have to pay, we think the chancellor should have charged the property with this six hundred twenty-five dollars with interest, instead of the three hundred fifteen dollars. To this extent the decree of the chancellor will be reversed and decree here for this amount in favor of the appellant, in addition to the one-tenth interest. In other respects the judgment of the chancellor will be affirmed and the cause remanded.
Affirmed in part; reversed in part, and remanded.