* Corpus Juris-Cyc. References: Lis Pendens, 38CJ, p. 51, n. 51; p. 52, n. 55; Tenancy in Common, 38Cyc, p. 66, n. 71; p. 72, n. 84, 90 New. As to liability of cotenant to account for use and occupation or rents and profits, see annotation in 28 L.R.A. 829; 29 L.R.A. (N.S.) 224; 7 R.C.L. 836. The appellant, Pennington, appeals from a decree sustaining a demurrer to his bill filed for the purpose of determining the question of whether or not a deed of trust held by him on an undivided interest in certain lands was superior to the lien of one cotenant for use and occupation by another cotenant holding adversely.
The case, in short, is as follows:
The appellee, Mrs. E.M. Purcell, and one Joe B. Evans, were the owners in common of a certain tract of land. She owned about five-eighths of it and Evans the other three-eighths. Evans occupied all of the land and used it without paying Mrs. Purcell for the use of her part of it. A partition suit was filed and the land partited, and the court decreed that Evans was due an amount to Mrs. Purcell for the use of her portion of the land, and that a *Page 550 lien be impressed upon Evans' part to secure the payment of the amount due Mrs. Purcell.
The commissioner sold the land for partition, and it seems that he failed to pay the cost of the partition proceedings out of the funds realized from the sale. Mrs. Purcell bought the land under the partition sale. The three-eighths interest of Evans was subsequently sold again under an execution for the costs of the partition proceeding, and Mrs. Purcell purchased the land at this sale.
After the petition for partition was filed and a lis pendens notice of the partition proceedings was filed, the appellant, Pennington, obtained a deed of trust from Evans to secure the payment of an indebtedness due him by Evans, and the three-eighths undivided interest in the land involved in this suit was conveyed in the deed of trust to secure the indebtedness. The court, in the partition proceeding, adjudged that Evans was indebted to Mrs. Purcell for the use of her part of the land, and declared the amount due her a lien on his three-eighths interest in the land.
Now the question arises, first, was the deed of trust superior in right to the lien impressed upon the land by the decree of the court? Or was the right to an equitable lien in favor of the cotenant Mrs. Purcell against Evans' interest in the land, superior to the lien of the deed of trust? And, second, was the title obtained by Mrs. Purcell under the execution sale for the court costs superior to the lien of the deed of trust?
It is contended by the appellee, and it seems that the chancellor decided the case upon this theory, that the equitable lien of the cotenant Mrs. Purcell against the interest of Evans, the adverse holder, for the use of her part of the land, was prior and superior to the deed of trust taken after the partition suit was filed, and of which the appellant, Pennington, had actual and constructive notice. *Page 551
We think the court was in error in so holding, because there was no lien in favor of Mrs. Purcell against the interest of Evans in the land until the lien was impressed by the decree of the court; and the deed of trust had been given and duly recorded before the lien was decreed against the land by the court in the partition proceedings.
There was an inchoate right to an equitable lien by the cotenant Mrs. Purcell against the cotenant Evans for the use of the land, even though the bill did not specifically seek a lien, but the right did not ripen into a lien until after it had been established by the decree of the court. Therefore the lien of the deed of trust was prior and superior to the lien subsequently impressed against the land by the court. This question has been settled in our state by the following cases: Burns v.Dreyfus, 69 Miss. 211, 11 So. 107, 30 Am. St. Rep. 539;Morgan v. Long, 73 Miss. 406, 19 So. 98, 55 Am. St. Rep. 541. The text-books also announce this rule. 7 R.C.L., p. 836; 38 Cyc., p. 72.
The sale of the three-eighths interest under execution for the costs of the partition proceeding at which Mrs. Purcell again bought Evans' interest in the land may or may not have been a valid sale; we do not decide, but, conceding it to be a valid sale, we are of the opinion that whatever title the purchaser secured by this sale was not superior to the lien of the deed of trust, but was subject to the priority of the deed of trust. Therefore we conclude that the appellee, Mrs. Purcell, acquired no rights in Evans' interest to the land that were superior to the rights of the appellant under the deed of trust.
It being our view that the deed of trust involved in this case was a superior lien over the claims of the appellee, the lower court was in error in sustaining the demurrer to the bill, and the decree therefore is reversed and the cause remanded, and appellee may answer the *Page 552 bill within thirty days after the filing of the mandate in the lower court.
Reversed and remanded.