In our original opinion we endeavored to state and consider the propositions relied upon for a reversal of the decree in this cause. We failed to observe appellant's contention, now stressed in the brief on rehearing, that, conceding — but for the argument only — all else to have been correctly decided for appellees, appellant was entitled to a decree for the reason that appellees delayed too long, were guilty of laches in making their offer to contribute their just proportion of the sum paid by appellant in purchasing the property at foreclosure sale, an offer made for the first time in the original bill in this cause. The question thus presented has now been duly considered.
In Johns v. Johns, 93 Ala. 243, 9 So. 419, where a tenant in common purchased at tax sale, the question was whether he could so cut off the right of his cotenants and acquire the exclusive title in himself. The facts were that "nearly 11 years after the tax sale, nearly 9 years after the tax deed was executed, and some 5 years after the death of the widow, the life tenant under testator's will" — complainants and defendant were remaindermen, tenants in common — complainants filed their bill for a sale of the land for partition against their cotenant, purchaser at the sale, who had been in possession since the year of the tax sale. Stone, C. J., answering the question for the court, said:
"We hold that he could not, even on the facts shown in this case. The interest and duty to prevent a loss of the freehold by tax sale, were as mandatory and binding on him as on his cotenants in remainder. He must be content with the right the law gives him; the right which accrues to one who pays taxes for which others are equally bound. He is entitled to reimbursement out of the use and occupation. He must be treated as a trustee of the title, for the equal benefit of all the cotenants" (citing authorities). *Page 393
In Savage v. Bradley, 149 Ala. 169, 43 So. 20, 123 Am. St. Rep. 30, it was said in effect, that the relation of cotenancy is a relation of trust and confidence, and that from it presumptions of utmost favor to cotenants arise to the end that the title and rights of each in the common estate may be preserved unimpaired. The authorities are said to be uniform in affirming the general rule that a cotenant who acquires a tax title to the common property cannot assert such title against his co-owners except as a basis for requiring contribution to repay him for his expenditure (7 R. C. L. p. 863); this for the reason that it is the duty of each co-owner to pay taxes. Donnor v. Quartermas, 90 Ala. 164, 8 So. 715, 24 Am. St. Rep. 778. But, when it is observed that the parties to this cause became cotenants by inheritance so that the lien for the mortgage debt affected the interests of each and all of them, we can see no reason why the principle declared in Johns v. Johns, supra, should not apply with full force to the case in hand. Accordingly we find the rule to be well settled in most jurisdictions, though there are cases to the contrary, notably in the federal courts (Starkweather v. Jenner, 216 U.S. 524,30 S.Ct. 382, 54 L.Ed. 602, 17 Ann. Cas. 1167) "that where property owned in common is sold pursuant to a power contained in a trust deed, or at a judicial sale, to satisfy an obligation which rests alike upon all of the tenants in common, one proprietor cannot purchase the lands and cut off the right of his coproprietors to contribute to the purchase price and participate in the benefits of the purchase." Note to Starkweather v. Jenner, supra, in 17 Ann. Cas. p. 1169. To this effect we cited in our opinion on the original submission Inglis v. Webb, 117 Ala. 397, 23 So. 125; Shelby v. Rhodes,105 Miss. 255, 62 So. 232, Ann. Cas. 1916D, 1306; and the encyclopædias.
In Randolph v. Vails, 180 Ala. 89, 60 So. 159, and in other of our cases, it has been held that the purchase at a mortgage sale by a cotenant inures to the benefit of all the tenants in common, provided they, within a reasonable time, elect to so treat the purchase. But the right which a tenant in common has to participate in a purchase of the common property by a cotenant is an equitable right, and by the courts taking our view of the matter it is generally held, as it was in Randolph v. Vails, supra, that a cotenant, to avail himself of the benefits of such purchase, must contribute or offer to contribute to the expense thereof within a reasonable time. 17 Ann. Cas. note, p. 1171. And the main question now in dispute is whether appellees have complied with this requirement of the authorities.
In Savage v. Bradley, supra, it was held that in ordinary cases, by analogy to the terms fixed for the exercise of the statutory right of redemption, 2 years is the limit of time within which election by a cotenant should be made in order to avail himself of the redemptioner's act, but the court, in view of the relation involved, refused to declare any inexorable rule, "since in the very nature of the relation the conduct and condition of the co-owners might materially change the standard," refused to declare 10 years to be a reasonable limit in all cases. That, however, is not precisely this case.
Appellant, Myrtie S. Williams, is claiming under a deed from a tenant in common who was the father of his (grantor's) cotenants, and, at the time of his purchase at the foreclosure sale, one of his cotenants was a minor. The property came down by inheritance from the wife of the purchaser, the mother of his cotenants. Appellant's grantor has remained continuously in possession since the death of his wife, the former owner. These circumstances, without more, might serve to differentiate this from the ordinary case to the advantage of appellees. But the reliance is not upon these facts alone. Complainant is seeking to be let into the benefits of her cotenant's purchase at the foreclosure sale. Judge Freeman in his work on Cotenancy and Partition (2d Ed.) § 156, says:
"The right of a cotenant to share in the benefit of a purchase of an outstanding claim is always dependent on his having, within a reasonable time, elected to bear his portion of the expense necessarily incurred in the acquisition of the claim. A most natural and material inquiry, then, is what is a reasonable time. To this inquiry no positive answer can be given. In this, as in all other questions in regard to reasonable time, no doubt each case must necessarily be determined upon its own peculiar circumstances. The cotenant asking a court of equity to award him the benefit of a purchase, must show reasonable diligence in making his election. Whatever delay he may have occasioned must be entirely consistent with perfect fair dealing on his part, and in no wise attributable to an effort to retain the advantage, while he shirks the responsibilities of the new acquisition."
We discover no objection to the 2-year rule announced in Savage v. Bradley in its application to ordinary cases, that is, to cases in which the parties are sui juris, competent, and the relevant facts are understood by all hands. But laches cannot within limits which do not affect this case be imputed to parties who are not informed of the adverse claim and the necessary propriety of asserting their right, for one very just definition of laches is "an implied waiver arising from a knowledge of existing conditions and an acquiescence in them." 21 C. J. 210. This principle is recognized in Winsett v. Winsett, 203 Ala. 373, 83 So. 117. "Mere delay in the assertion of a right, without more, does not in itself constitute laches." Montgomery Light Co. v. Lahey, 121 Ala. 137,25 So. 1006. Sufficiently indeed for the purposes of this case, though in very broad terms, laches is *Page 394 defined in the quotation from Judge Freeman, supra, viz., to avoid the imputation of laches from prolonged delay, it must be consistent with perfect fair dealing. Now, then for the facts in addition to those already shown: Complainant Harry P. Williams was born in 1890. After his mother's death he early became a morphine addict and divided most of his time between the asylum for the insane at Tuscaloosa, reformatories, and industrial schools. But in May, 1917, he joined the army, and upon that occasion, according to his testimony, defendant Myrtie and her husband, complainant's father, distinctly recognized his right in the property the subject of the present litigation, nor, prior to that time, had either of them ever informed him that he had no interest in the property left by his mother.
Complainant Virginia Massie, 15 years older than Harry P., testified that as late as 1922 her father told her that she had an interest in the property, nor had she ever been informed that his wife, defendant Myrtie S. Williams, had or claimed an interest in the property. Further, she testified that in the year 1905 her father told her that the property would not be sold and that, "if anything come up," she would be notified; that she first learned of the foreclosure sale a few months prior to the filing of this bill. Neither M. M. Williams nor Myrtie, his wife, has seen fit to deny anything of this testimony, and we see no alternative but to accept it at its face value. So accepted, our judgment is that it disproves the charge of laches brought against complainants, with result that the decree in their favor ordering a sale for partition, allowing the amount bid at the foreclosure, with interest, as a charge upon the proceeds, and an accounting for rents and profits received in the meantime, must be affirmed.