Titsworth v. Stout

Citations

• 49 Ill. 78

Syllabus

<p>1. Tenants in common—incumbrance removed from the common estate by one— other tenant must contribute to extent of his interest—of the lien for such contribution. A and B were owners, as tenants in common, of a certain tract of land incumbered by a mortgage, which was foreclosed and the premises purchased by one 0, who assigned the certificate to A. D, the mother of B, having a right of dower in an undivided half of the premises, and being also guardian of B, redeemed the same, by paying over to the master the full amount of the purchase, which sum was paid to A. In a suit for partition, by A against B and D: field, that A must take her allotment, subject to D’s lien for' the payment of one-half of the redemption money.</p> <p>2. That D, having redeemed the premises from the master’s sale, had a valid claim against A to the extent of one-half of the redemption money paid by her, and which constituted an equitable lien on the land while in the hands of A, which a court of equity would enforce.</p> <p>3. Where one tenant in common removes an incumbrance from the common estate, the other tenants must contribute to the extent of their respective interests, and to secure such contribution, a court of equity will enforce upon such interests an equitable lien of the same character with that which has been removed by the redeeming tenant.</p> <p>4. Same—of the purchase of an outstanding title by one tenant—rights of his co-tenant. And where one tenant buys in an outstanding title, he can not set it up as against his co-tenant without giving him an opportunity to contribute and thereby participate in the benefit of such purchase.</p> <p>5. Same—where affirmative relief is sought—a cross bill must be fled. And in such case, inasmuch as the defendants B and D asked no affirmative relief by cross bill, a decree for the sale of the premises, in event of the non-payment of D’s claim, could not be rendered.</p> <p>6. Same—apportionment of incumbrances authorized by the partition