CARSON V. BROADY.

[56 NEBRASKA, 648.]

LANDLORD AND TENANT-DENIAL OF TITLE BY TENANT.-A tenant cannot, while in possession of the premises, deny his landlord's title, even before the lease is made, and this rule is applicable in every case in which such possession has been obtained by permission of the owner and in recognition of his title.

LANDLORD AND TENANT-ADVERSE POSSESSION.-A tenant who remains in possession after the expiration of his term, .without any express repudiation of the relation created by the lease, does not hold adversely to the landlord, no matter what his secret intention may be.

PARTITION-CONFLICTING TITLES-ESTOPPEL.-If. in an action for the partition of land, the issue arising upon the conflicting legal titles is tried without objection, and the title is conclu sively established in favor of one of the parties, the adversary party cannot be heard to question the correctness and binding effect of such judgment.

COTENANCY-PURCHASE OF OUTSTANDING TITLECONTRIBUTION.-The purchase by a cotenant of an outstanding title to or encumbrance on the joint estate inures to the common benefit and entitles the purchaser to contribution.

COTENANCY-PURCHASE OF OUTSTANDING TITLECONTRIBUTION.-The purchase of an outstanding title or encumbrance to property by a party before he becomes a cotenant therein does not entitle him to contribution, when the purchase is not made actually or constructively for the benefit of any future cotenant.

TAXATION-TAX LIENS-LIMITATION OF ACTIONS.An action for the enforcement of a tax lien is barred at the expiration of five years from the time that the cause of action accrued. TAXATION-VOID TAX DEED-LIMITATION OF ACTIONS.-The statute of limitations begins to run against a void tax deed at the time when it is issued, and not at the time that such deed is judicially determined to be void.

TAXATION-TAX LIENS-LIMITATION OF ACTIONS.When the cause of action on a tax lien becomes barred by limitation, the lien itself is extinguished and ceases to be a charge upon the land.

COTENANCY — IMPROVEMENTS PARTITION.-If one tenant in common has had exclusive possession of the common property, and has made valuable improvements thereon without the consent of his cotenant, there should, in partition, be set apart to him that portion on which the improvements are made, if this can be done without prejudice to the cotenant, but if the property is not susceptible to physical division it should be sold and the proceeds divided equally among the cotenants, after deducting therefrom, for the benefit of the tenant in possession, such sum as the salable value has been enhanced by such improvements.

COTENANCY-LEASE-PRESUMPTION.-If a cotenant leases the whole property, and remains in possession after the termination of his term, discharging the obligations imposed upon him by the lease, he is presumed to hold under the lease, or an implied renewal thereof, and subject to its provisions.

J. H. Broady, for the appellants.

Reavis & Reavis, for the appellee.

649 SULLIVAN, J. This action for the partition of one hundred and sixty acres of land lying in Richardson county was commenced by Marion A. Carson, Edith Carson, William Carson, and L. Ward Carson against Jefferson H. Broady and John Tighe. The 650 defendants answered, denying plaintiffs' title, alleging title in themselves by adverse possession, and setting up a claim for moneys expended by them in purchasing outstanding tax titles, paying taxes, and improving the premises. From a decree confirming the shares of the parties, directing partition, and adjusting incidental equities the defendants have appealed.

The facts out of which the litigation has arisen, and which are essential to an understanding of the questions here presented for decision, may be summarized as follows: The real estate in controversy was originally owned by David E. Carson, who died intestate in the year 1862. His heirs were his six brothers and sisters. In October, 1877, William Carson, one of these brothers, also died intestate leaving surviving him his widow, Louise W. Carson, and four minor children. These children are the plaintiffs in this action. In 1875, a tax deed for the entire tract, based on a sale for the delinquent taxes of 1872, was issued by the treasurer of Richardson county to Edwin S. Towle. In 1877, Elizabeth Shrauger purchased Towle's interest in the premises and proceeded at once to occupy and improve the same. In June, 1880, Shrauger sold and delivered possession of the west eighty to Henry Nedrow. In 1877, a treasurer's deed, based on a sale of the land for the delinquent taxes of 1874, was issued to Charles Brunn, who, in June 1881, sold and transferred his interest to the defendants. In September of the lastnamed year the defendants obtained from the surviving brothers and sisters of William Carson a deed for their undivided interest in the land; and, desiring to secure the one-sixth interest of the plaintiffs, who were then minors, proceedings were instituted at the instance of defendants to bring about for their benefit, a guardian's sale of the land. These proceedings were afterward abandoned, but while they were pending the defendants, in order to obtain a title on which they could maintain ejectment against Shrauger and Nedrow, secured from the plaintiffs, on October 14, 1881, a lease for their one-sixth 651 interest. This lease was immediately recorded and action for pos

ɛession commenced. A compromise of these cases was afterward effected, whereby the possession of Shrauger and Nedrow was surrendered, and their interests conveyed, to Broady and Tighe, who have ever since occupied the premises.

These appellants now insist that they were in the exclusive, adverse occupancy of the land for more than ten years before the action for partition was commenced, and that the right of the plaintiffs to assert their title is barred by the statute of limitations. This contention cannot be sustained. The defendants recognized the validity of plaintiffs' title, and, by relying on it and claiming under it, they effected a compromise of the ejectment suits and were thus let into possession of the land. It is an ancient and well-settled rule of law that a tenant cannot, while occupying the premises, deny his landlord's title. This is so even where he was in possession before the lease was made: Richardson v. Harvey, 37 Ga. 224; Thayer v. Society of United Brethren, 20 Pa. St. 60; Lucas v. Brooks, 18 Wall. 436; Sage v. Halversen, 72 Minn. 294. And the principle is applicable to every case in which the possession of land has been obtained by the permission of the owner and in recognition of his title: Dubois v. Marshall, 3 Dana, 336; Downer v. Ford, 16 Cal. 345; Love v. Edmondston, 1 Ired. 152. The relation of landlord and tenant was created by the lease. The defendants, until the answer was filed in this case, did not repudiate that relation or indicate by any clear and unequivocal act their intention to hold adversely. Under these circumstances, their holding was not adverse, in contemplation of law, whatever may have been their secret purpose. Besides at the time they obtained possession, they were, with the plaintiffs, tenants in common of the land. They were negotiating for the purchase of the plaintiffs' title; they recognized its validity then, and even as late as 1889 made application to buy it. They did no act at any time. evincing an 652 intention, on their part, to oust their cotenants; and they could not, by a mere silent peaceable possession, however long continued, extinguish the plaintiffs' title: Warfield v. Lindell, 30 Mo. 272, 77 Am. Dec. 614; Purcell v. Wilson, 4 Gratt. 16; Day v. Davis, 64 Miss. 253; Peeler v. Guilkey, 27 Tex. 355; Holley v. Hawley, 39 Vt. 525, 94 Am. Dec. 350.

In the brief filed for the appellants it is argued that, the title of the plaintiffs being denied, the court was without authority to determine the questions in issue in an action to partition the land. Upon this point it is sufficient to say that the issues were tried without objection, and the averments of the petition

established by undisputed proof. The defendants submitted their cause to the court without protest. They would have willingly accepted the decision had it been favorable to them, and they cannot be heard to complain on this ground because it is against them.

We proceed now to consider the equities of the parties incident to a partition of the land. The defendants ask to be reimbursed for moneys expended in purchasing outstanding tax titles and in improving the property. In the case of Brown v. Homan, 1 Neb. 448, it was held that the purchase by a tenant in common of an outstanding title to, or encumbrance on, the joint estate would inure to the common benefit and entitle the purchaser to contribution. And this is believed to be the universal rule: See collection of cases in 7 Am. & Eng. Ency. of Law, 2d ed., 354. By compromising the actions against Shrauger and Nedrow, and obtaining their interests under the tax deed issued to Towle, the defendants secured for themselves and for the plaintiffs, as their lessors and cotenants, the immediate, peaceable possession of the land, and thus extinguished a valid lien and an adverse occupancy. Having shared in the benefits of the purchase, and claiming now the fruits of the lease, which became at once effective by the settlement of the litigation, the plaintiffs are bound to contribute their just proportion of the amount paid by the defendants in effecting the compromise: 653 Titsworth v. Stout, 49 Ill. 78, 95 Am. Dec. 577; Lee v. Fox, 6 Dana, 172; Oliver v. Montgomery, 42 Iowa, 36; Moon v. Jennings, 119 Ind. 130, 12 Am. St. Rep. 383; Watson's Appeal, 90 Pa. St. 426; Packard v. King, 3 Colo. 214; Calkins v. Steinbach, 66 Cal. 117. But the claim of the defendants for money expended in purchasing the interest of Charles Brunn is on an entirely different footing. It cannot be allowed. At the time Brunn's rights were acquired the defendants had no title to the land. They were not the plaintiffs' cotenants, and did not actually, or by implication of law, purchase for the benefit of the plaintiffs, as well as for their own advantage. By the Brunn deed they secured for their own exclusive benefit a lien for the amount of the taxes paid by Brunn. This lien they might have enforced by an appropriate action seasonably brought. They were entitled to have one-sixth of the amount paid by them charged as a specific lien against plaintiff's interest in the land, and to obtain satisfaction by a sale of such interest. They, however, failed to move in the matter within the time limited by the statute for that purpose, and, under the decisions of this

court, their lien is now extinguished. An action for the enforcement of a tax lien is barred at the expiration of five years from the time the cause of action accrued: Helphrey v. Redick, 21 Neb. 80; Warren v. Demary, 33 Neb. 327; Black v. Leonard, 33 Neb. 745. It is also settled by Alexander v. Thacker, 43 Neb. 494, that the statute in such cases begins to run when a void tax deed is issued, and not at the time such deed is judicially determined to be null. The vital infirmity of the treasurer's deed to Brunn was congenital, and, therefore, the execution of that instrument, and the failure of the title which it assumed to convey, were concurrent events. And, according to the rule established by Alexander v. Shaffer, 38 Neb. 812, and Foree v. Stubbs, 41 Neb. 271, when the cause of action became barred, the lien itself was extinguished and ceased to be a charge upon the land.

Since the defendants have been in possession of the 654 land they have made lasting and valuable improvements thereon. These improvements were made without the privity or consent of the plaintiffs, but not in ignorance of the fact that they were co-owners. Under these circumstances, if the property can be divided without prejudice to the rights of the parties, there should be set apart to the defendants the portion on which the improvements are situated, and, if it cannot be divided, but must be sold, there should be deducted from the gross proceeds of the sale such sum as, in the opinion of the court, the salable value has been enhanced by such improvements, and the balance should be divided between the litigants according to their respective interests. This is the general rule, and is sustained by the great weight of the authorities, but exceptional cases may arise in which it would be inequitable to permit it to govern: Sarbach v. Newell, 30 Kan. 102; Dean v. O'Meara, 47 Ill. 120; Moore v. Thorp, 16 R. I. 655; Ford v. Knapp, 102 N. Y. 135, 55 Am. Rep. 782; Johnson v. Pelot, 24 S. C. 255, 58 Am. Rep. 253; Ward v. Ward, 40 W. Va. 611, 52 Am. St. Rep. 911. There is, however, no difficulty in applying it in this case, for plaintiffs in their brief say: "We have no purpose, nor are we instructed, to insist upon anything that is not plainly justifiable upon the broadest principles of equity and exact justice. Our first and only purpose was to procure a division of this land according to the rights of the parties. When we take twenty-six acres and a fraction from one side of the quarter section in question, we do not expect the court to advise the referees to give us the part upon which the most valuable improvements are