Chournos v. Evona Inv. Co. , 97 Utah 335 ( 1939 )

I dissent. The court found that the Kellers "worked and planned together to obtain a deed for Lloyd W. Keller, to said premises and said Kellers were jointly interested in the funds paid as consideration for said deed * * * that they planned and schemed together" to that end. Neither of the Kellers stand in a better position than would L.L. Keller had he purchased outright in his own name. The problem presented then is that of the cotenant of a lease-hold purchasing the outstanding title, with the additional fact that by such purchase and under the circumstances here he thereby cut off a contingent option to purchase given by the lease to the cotenants.

Joint tenants stand in a confidential relationship to each other as to the property which they hold or occupy, and where one of them acquires a superior claim to the land, adverse to the joint tenancy, he may be compelled to hold it for the joint tenancy. This general statement is so well established as to be beyond question. Ruthrauff v. Silver King Western M. M.Co., 95 Utah 279, 295, 296, 80 P.2d 338; Malone v. Young,148 Kan. 250, 81 P.2d 23; Sutton v. Sutton, 211 N.C. 472,190 S.E. 718; Kievman v. Grevers, 122 Conn. 406, 189 A. 609;Stewart v. Shearman, 22 Cal. App. 2d 198, 70 P.2d 702; Thompson, Real Property, Secs. 1789, 1790; Freeman, Cotenancy and Partition, Sec. 156; Hodgson v. Federal Oil DevelopmentCo., 274 U.S. 15, 47 S. Ct. 502, 71 L. Ed. 901, 54 A.L.R. 874;Gilb v. O'Neill, 225 Ala. 92, 142 So. 397, 85 A.L.R. 1535; 62 C.J. 456-459, 461. This rule applies, to cotenancies of lease-hold where the interest acquired is hostile to the lease, but not otherwise. 54 A.L.R. 907, 908 and cases there cited.

Under its terms the lease would not expire until October 1, 1939. But upon sale of the land the term ran only until a year after the date of sale. Thus the purchase by the cotenant Keller — assuming the purchase to have been made by him — shortened the term by one year and nine months. He acquired an interest hostile to the lease. In addition, the purchase by him cut off the contingent option to purchase vested in the cotenants. This result was effected by his scheming and conniving so to do. A cotenant who acquires such title to property jointly leased that the lease is interfered with may be compelled by the other cotenant, if offering to do equity, to hold the land for their mutual benefit. Decorso v. Thomas,89 Utah 160, 50 P.2d 951; Ramberg v. Wahlstrom, 140 Ill. 182,29 N.E. 727, 33 Am. St. Rep. 227. The Decorso case is closely analogous to the case at bar, except that there the court found a partnership. That does not seem to make a material difference as to this question. According to the holding of that case the defendant Lloyd W. Keller should be declared to hold a half interest in the property in constructive trust for the plaintiff who offers to pay his proportionate cost of the property.

For the foregoing reasons and those assigned by Mr. Justice WOLFE in his dissenting opinion I am of the opinion that the judgment of the district court should be reversed.