This section is from the book "The Law Of Contracts", by William Herbert Page. Also available from Amazon: Commercial Contracts: A Practical Guide to Deals, Contracts, Agreements and Promises.
In some jurisdictions the rule only forbids a co-tenant to acquire an outstanding adverse title or encumbrance for his own benefit; and the adverse title or encumbrance seems to be regarded as one which is adverse to the common source of title, and not one which is adverse only to the interest of the other co-tenants. Where this theory obtains, a co-tenant may acquire a good title by purchasing the property at a foreclosure sale which was brought upon a mortgage given by the common ancestor of such co-tenants.10 An encumbrance created by a common ancestor is,
4Stianson v. Stianson, 167 N. W. 237.
5Dwight v. Waldron, 96 Wash. 166, 164 Pac. 761.
6Starkweather v. Jenner, 216 U. S. 524, 54 L. ed. 602; Becker v. Becker, 254 Mo. 668, 163 S. W. 865.
See however, as apparently contra, Goodloe v. Woods, 115 Va. 540, 80 S. E. 108.
7Cohen v. Friedman, 259 111. 416, 102 N. E. 815; Kohle v. Hobson, 215 Mo. 213, 114 S. W. 952; Stianson v. Stian-son (S. D.), 167 N. W. 237.
8Siela v. Kneib (Mo.), 176 S. W. 1052.
9Hall v. Caldwell, 97 Va. 311, 33 S. E. 596.
10Jackson v. Baird, 148 N. Car. 29, 19 L. R. A. (N.S.) 591, 61 S. E. 632; Troxler v. Gant, 173 N. Car. 422, 92 S. E. 152; Stianson v. Stianson, (S. D.), 167 N. W. 237. (Also considerable delay in making contribution.)
"The contention of plaintiffs that John Baird could not acquire the exclusive title of the sale is founded upon a misapprehension of the law. The however, a means of depriving each of the co-tenants of his interest, and, accordingly, it is held in many jurisdictions that one co-tenant can not exclude the other co-tenants by buying in such lien,11 or by purchasing such realty at a sale under such encumbrance.12
A co-tenant can not take advantage of his own breach of duty to acquire interests in the property owned in common adverse to those of his co-tenants.13 Thus a co-tenant who buys at a tax sale the property owned in common holds for his co-tenants if they choose to contribute.14 If the husband of a tenant in common buys at a tax sale, the same principles apply as would apply if the tenant in common had bought it in person; and he holds for the benefit of the tenants in common if they choose to contribute.15
It has been held, however, that if neither co-tenant is in possession and if their interests are derived under separate instruments, one tenant may acquire, at a tax sale, the property owned in common.16
A co-tenant who redeems realty which has been sold at a tax sale,17 or who buys it from one who has purchased it at such tax general rule is well settled that one co-tenant can not purchase an outstanding title or incumbrance affecting the common estate for his own exclusive benefit, and assert such right against his co-tenants. But that rule does not apply under the facts of this case. The title which was acquired by Shuford, assuming that he acquired it for Baird, was not an outstanding title adverse to the title of Robert Baird. It was the title of Robert Baird himself, the common ancestor under whom all claimed, and the sale was being made under a deed executed by such ancestor and to pay his debts, which were an incumbrance on the land when it descended to plaintiffs and their co-heir. It is held in this state that one co-tenant lawfully may purchase his co-tenant's share of the common property under execution sale to pay the debt of such co-tenant. Likewise it is held that one of the co-tenants may purchase the entire property at a sale to pay the common ancestor's debt." Jackson v. Baird, 148 N. Car. 29, 19 L. R. A.
(N.S.) 591, 61 S. E. 632 [quoted in Troxler v. Gant, 173 N. Car. 422, 92 S. E. 152].
11Oliver v. Hedderly, 32 Minn. 455, 21 N. W. 478.
12Moy v. Moy, 89 la. 511, 66 N. W. 668.
13Inman v. Quirey, 128 Ark. 605, 194 S. W. 858; McGrath v. Smith, 175 Ky. 572, 194 S. W. 806.
14Biggins v. Dufficy, 262 111. 26, 104 N. E. 180; Hake v. Lee, 106 La. 482, 31 So. 54; Davis v. Solari, 132 Tenn. 225, 177 S. W. 939; Cecil v. Clark, 44 W. Va. 659, 30 S. E. 216; James v. James, 77 W. Va. 229, 87 S. E. 364.
15lnman v. Quirey, 173 Ark. 422, 194 S. W. 858; Biggins v. Dufficy, 262 111. 26, 104 N. E. 180; McGrath v. Smith, 175 Ky. 572, 194 S. W. 806; Abbott v. Williams, 74 W. Va. 652, 82 S. E. 1097.
16Hobe v. Rudd, 165 Wis. 152, 161 N. W. 551.
17Bracely v. Noble (Ala.), 77 So. 368; Watson v. Williams (Kan.), 175 Pac. 96.
sale,18 holds it subject to the rights of the other tenants in common to contribute. A reconveyance by the co-tenant to the original purchaser at the tax sale does not cut off the right of the other co-tenants to contribute.19 The right of contribution in such a case must be exercised by the other co-tenants in a reasonable time.20
While good reasons appear for not permitting a tenant in common to buy in property at a tax sale so as to exclude other tenants in common, where such tenants in common have not refused to contribute before such tax sale or possibly where they elect to contribute within a reasonable time after such tax sale, such reasons do not exist where one of the tenants in common has made a demand upon the other tenants in common for contribution when the taxes become due, and before a tax sale. If contribution is thus made and refused and the tenant in common who is in default refused in advance to contribute, the tenant in common who purchases such property should be allowed to retain for his own benefit. If in such case he is held to purchase for the benefit of all the tenants in common, he is forced to advance money for their benefit which they may repay to him or not, as may seem advantageous to them at some future time.21 At the same time, it must be conceded that some of the authorities have not recognized this qualification of the general rule, although it may be recognized when the attention of the court is directed thereto.
The principle that one co-tenant can not acquire a distinct title adverse to the others, is founded on the presumption that they occupy relations of trust and confidence.22 If it is shown that they are in fact hostile claimants, each endeavoring to exclude the other, the purchase of an adverse title by one does not enure to the benefit of the other, even if it is held ultimately that they are tenants in common.23
The principles which apply to tenants in common have been applied as between the owner of minerals and the owner of the surface, and the owner of the minerals can not purchase the surface land at a tax sale so as to exclude the original owner thereof.24
18Inman v. Quirey, 128 Ark. 605, 194 S. W. 858.
19Inman v. Quirey, 128 Ark. 605, 194 S. W. 858.
20 Stamps v. Frost, 179 Ky. 418, 200 S. W. 609.
21 Becker v. Becker, 254 Mo. 668, 163 S. W. 865.
22Shelby v. Rhodes, 105 Miss. 255, 62 So. 232.
23Shelby v. Rhodes, 105 Miss. 255, 62 So. 232.
24Curry v. Lake Superior Iron Co., 190 Mich. 445, 157 N. W. 19.
Contra, as to purchase of outstanding title. Virginia Coal & Iron Co., v. Kelly, 93 Va. 332, 24 S. E. 1020.
Omission by a co-owner in a partition suit to disclose to the court and to his co-tenants that the realty is selling below its actual value, and his receiving an additional compensation to remain silent and allow confirmation, has been treated as fraud.25
The principle that a co-tenant can not acquire a title which is hostile to that of the other co-tenants, applies only where the title which is asserted, or the encumbrance which it is sought to enforce, is one which is a burden upon the common interest of the tenants in common.26 Where each co-tenant deals with his separate interests, another co-tenant may acquire such interest free from any duty towards the original owner,27 as where one co-tenant mortgages his interest to the other and the latter buy at the foreclosure sale.28 One tenant in common may purchase the share of another at a judicial sale if the judgment or lien upon which such interest is sold is a lien only upon the undivided share of such other tenant in common.29 After the interest in common has once fairly ended, the former co-owners owe no more duty to each other than to any other persons.30 If the realty in which an estate in common is owned is sold to a stranger, without collusion with any of such co-tenants,31 as upon foreclosure proceedings,32 such sale ends the estate in common and one of such tenants in common may subsequently acquire the interest of such purchaser.33
A co-tenant may purchase the interest of another co-tenant, by contract, without the assent of a third co-tenant,34 and such third co-tenant can not compel the purchaser to hold the share thus acquired for the common interest of the two, even on offering contribution.35 It has been held that relations of trust and confidence do not exist when one co-tenant purchases the share of another co tenant by contract between the two.36 It has been held that the omission of a tenant in common to disclose the existence of extrinsic facts affecting the value of the land held in common,37 as his omission to disclose the existence of oil on other land,38 is not fraud.
25Tappan v. Brewing Co., 80 Cal. 570 13 Am. St. Rep. 174, 5 L. R. A. 428, 22 Pac. 257.
26McNutt v. Nuevo Land Co., 167 Cal. 459, 140 Pac. 6; Peck v. Lockridge, 97 Mo. 549, 11 S. W. 246; Hogan v. Utter, 175 N. Car. 332, 95 S. E. 565; Webster v. Rogers, 87 Or. 547, 171 Pac. 197.
27Hogan v. Utter, 175 N. Car. 332, 95 S. E. 565; Webster v. Rogers, 87 Or. 547, 171 Pac. 197.
28Webster v. Rogers, 87 Or. 547, 171 Pac. 197.
29McNutt v. Nuevo Land Co, 167
Cal. 459, 140 Pac. 6; Peck v. L. 97 Mo. 549, 11 S. W. 246.
30 Reagan v. McKibben, 11 S. D. 270, 76 N. W. 943.
31Becker v. Becker, 254 Mo. 668, 163 S. W. 865.
32 Becker v. Becker, 254 Mo. 668, 163 S. W. 865.
33 Becker v. Becker, 254 Mo. 668, 163 S. W. 865.
34Bisse11 v. Foss, 114 U. S. 252, 29 L. ed. 126; Snell v. Harrison, 104 Mo. 158, 16 S. W. 152.
35Bissell v. Foss, 114 U. S. 252, 29 L. ed. 126.