Burns v. Dreyfus

delivered the opiuion of the court.

We recognize to its full extent the equitable principle that in the partition of lands held in common the court will, in the division of the property, or of its proceeds, if indivisible? and therefore sold for partition, do full justice between the co-tenants by directing accounts to be taken of receipts and disbursements by them, and will so apportion the fund as to do complete equity. This rule of equitable administration is frequently spoken of as a “lien” in favor of one co-tenant against the interest of the other, but it has never, so far as we are advised, been held to be entitled to priority over the right of a bona fide purchaser or incumbrancer of the interest of one co-tenant in the common estate.

The contention of the complainants is, that a purchaser of the interest of one tenant in common takes his estate subject to the right of the other co-tenants to subject it to whatever may, on a final accounting, be found due to them from his vendor. If there is any authority for this position, we have not been referred to it, and we know of none. Certainly the cases cited by counsel do not support his contention, and, so far as we can see, have no relevancy to the point. It would *214require many cases to constrain us to yield our assent to the proposition contended for. We do not believe one can be found, and we approve the decree of the chancellor in so far as if .is presented by the appeal of complainants. On dissolution of the injunction, the defendants, Dreyfus & Ascher, were entitled to the statutory damages as provided by § 1918 of the code.

The decree must, to that extent, be reversed, and the court below directed to award damages as indicated.