Brown v. Brown

John A. Fogleman, Justice, concurring. 1 concur in the majority opinion and its result. The limitation on the fiduciary relationship between tenants in common stated in the dissent is far too narrow. In Brittin v. Handy, 20 Ark. 381 , 73 Am. Dec. 497 , the proper line was drawn and we have not departed from it. The relationship exists whenever the tenants in common hold, not only under a common ancestor, but also under one instrument, or as a result of the same purchase, or where they hold by the same title. The rule was not changed by the dictum quoted in the dissenting opinion from Trout v. Harrell, 217 Ark. 670 , 233 S.W. 2d 233 . I do not disagree with that statement, however. It simply does not affect the rule of Brittin, which has not changed from the day it was announced. The general principle of Brittin was applied in Hayes v. Gordon, 217 Ark. 18 , 228 S.W. 2d 464 , where the cotenants were husband and wife and the tenancy was by the entirety. The Brittin rule was restated in full in Neilson v. Hase, 229 Ark. 231 , 314 S.W. 2d 219 and was in no way impaired by the holding in that case. The decision in Neilson fully recognized the rule. Hayes was decided shortly before Trout but Neilson was decided after Trout.

The tenancy in common in Neilson certainly was not created by the same instrument. Neither did it result from the same purchase. Nor did the tenants in common hold by the same title.

I cannot accept the classification of the Brittin rule as dictum. Whether statements in opinions of courts are dictum engenders much debate. We recently rejected an argument that language from a prior opinion, adopting a test, was dictum because it constituted the adoption of a test which was essential to the decision. See, Greenlee v. Mum, 262 Ark. 663 , 559 S.W. 2d 928 . The situation in Brittin was closely parallel. After stating the test, we said that the parties in Brittin were not in a confidential or fiduciary relationship. The language of the opinion indicates that the decision was based upon two factors, one of them being the test stated at some length. We said:

It may be further remarked that Brittin and Handy were not tenants in common under the same instrument, etc., but that they purchased at different times, and held by different titles, though both of their titles were derived from the same source.

The statement in Brittin was not just a stray remark made without adequate support. It is quite true that the confidential relationship is virtually inescapable when there is a joint tenancy or a tenancy in common by descent. But the matter of the relationship of other tenancies in common is treated in Fréeman on Cotenancy & Partition, a text that has been widely cited. That author said:

RESTRAINTS ARISING FROM FACT OF COTENANCY

§ 151. Relations are those of Mutual Trust. — *****

Tenants in common by descent are under no other or greater obligations towards one another than other cotenants frequently are. Where two or more come to an estate by devise or descent from a common source of title, the relations between them are presumed to be relations of trust and confidence. Such a presumption may not appear so strong where the cotenants acquire their respective interests, at different times and by different conveyances; and it may, in certain cases, disappear altogether. But where the cotenants acquired their interest by a joint conveyance, under which they both went into possession, there can be no doubt that the relation necessarily produced is as much one of trust and confidence as though it originated in devise or descent. And even where the cotenants come to their titles at different times and from different grantors, they may, by being in the actual joint possession, and by a course of behavior in reference to one another and to the common subject of ownership indicating an intent to support and respect the common title, create relations of mutual trust and confidence as strong in fact and as worthy of consideration in law, as the relations growing out of the acquisition of title from a common source, by the same purchase or descent. *****

§ 155. When Purchase of Adverse Title permitted. — As the rule forbidding the acquisition of adverse titles by a cotenant, from being asserted against his companions, is always said to be based upon considerations of mutual trust and confidence supposed to be existing between the parties, the question naturally arises whether the rule is applicable where the reasons on which it is based are absent. Joint tenants, tenants by the entirety, and coparceners, always hold by and under the same title. Their union of interest and of title is so complete, that, beyond all doubt, such a relation of trust and confidence unavoidably results therefrom that neither will be permitted to act in hostility to the interests of the other in reference to the joint estate. Tenants in common, on the other hand, may claim under separate conveyances, and through different grantors. Their only unity is that of right to the possession of the common subject of ownership. As their connection is not necessarily so intimate as that of other cotenants, it may well be doubted whether they should always be subject to the restraints imposed upon the others. There are many cases in which the rule in regard to the acquisition of an adverse title by a cotenant is spoken of in general terms as applying to tenants in common, irrespective of their special and actual relations to one another. But an examination of the decisions clearly shows that tenants in common are not necessarily prohibited from asserting an adverse title. If their interests accrue at different times, and under different instruments, and neither has superior means of information respecting the state of the title, then either, unless he employs his cotenancy to secure an advantage, may acquire and assert a superior outstanding title, especially where the cotenants are not in joint possession of the premises.

I do not agree that the hypothetical situation postulated in the dissenting opinion would be a matter of form rather than substance. I would say that if two parties bought by the same purchase and took separate deeds, they would still be in a confidential and fiduciary relationship. If they did not acquire title by the same purchase and took by separate deeds, there would certainly be a reason for doing so, and avoidance of the confidential and fiduciary relationship would be appropriate.

Unquestionably, appellant and appellee became cotenants by virtue of one instrument, one purchase and by the same title. If that was not sufficient they certainly became tenants in common by one act, or one instrument, i.e., the divorce decree, and it was the same title.

I will not elaborate on the testimony, but, even though appellant tried to say that he was not in possession of the property, we áre in no position to say that the chancery court erred in holding that he was in possession. Even though the possession of one tenant in common is the possession of all, the cotenant who is in possession owes certain duties to the other tenants for whom he holds possession, particularly when the tenancy is one giving rise to a relationship of trust and confidence.

It is the general rule in this country that the tenant in common in possession occupies a confidential relation to his cotenants. Brietman v. Jaehnal, 99 N.J. Eq. 243 , 132 A. 291 (1926). A tenant in common while occupying the property owes a duty to his co-owner to act as a reasonably prudent person in looking after and preserving the property and the relationship of trust and confidence binds all to protect and secure the common interest. Smither v. Betts, 264 S.W. 2d 255 (Ky., 1954); Crawford v. Wiedemann, 170 Ky. 613 , 186 S.W. 509 (1916). Thus, it has been held that it is the occupying tenant’s duty to keep the property insured and insurance taken by him will inure to the benefit of both. Mastbaum v. Mastbanm, 126 N.J. Eq. 366 , 9 A. 2d 51 (1939); Smither v. Betts, supra; Crawford v. Wiedemann, supra. See also, In re Estate of Ray, 7 Ill. App. 3d 433 , 287 N.E. 2d 144 (1972).

I think that the facts in this case bring this case within the purview of those in which the tenancy in common is such that a fiduciary relationship exists between the tenants in common and that insurance coverage taken by the tenant in possession inures to the benefit of the tenant out of possession.

Accordingly, I would affirm the judgment.