Sarbach v. Newell , 28 Kan. 642 ( 1882 )

The opinion of the court was delivered by

Horton, C. J.:

Upon the findings of fact made and filed by the trial court, it was adjudged that the plaintiff is seized in fee of the undivided two-elevenths of the premises in controversy, and the defendant Mary Newell is a tenant-in-common with him, and seized in fee of the undivided nine-elevenths thereof. Thereon, it was ordered that partition be made as follows: The commissioners to set off to plaintiff two-elevenths without the stone store building, if the same could be done without manifest injury; but if this partition ■ could not be made without manifest injuiy, then the commissioners should appraise the value of the lot without the stone building, and upon a sale of the property the proceeds should be applied as follows: First, in payment of the costs, including attorney’s fees; and second, that defendants be paid that proportion of the residue which the found value of the building shall bear to the appraised value of the lot, and two-elevenths of the balance of the proceeds to go to the plaintiff, and nine-elevenths thereof to the defendant Ma!ry Newell. It is claimed on the part of the plaintiff' in error, that the defendants should not only be denied compensation for the improvements, but should be held accountable for rents and profits also. The defendant Mary Newell is the wife of her co-defendant Samuel H. Newell, and purchased from' Hiram McNutt, by warranty deed on January.13, 1875, the entire interest as she supposed in the premises, and paid the sum of $800. The plaintiff purchased the interest of Mary A. Kenyon, James P. and William H. Rexford by quitclaim deed, on March 10, 1881, for $50. In the year 1876, the husband of Mary Newell (her co-defendant) erected the stone store building, of the value of $3,550. This building was completed in June, 1876, and still remains on the premises.- The value of the rents, issues and profits of the premises without the improvements did not exceed the taxes assessed thereon. Neither the plaintiff nor any of his grantors paid any of these taxes, but they have all been paid by the defendants. Whatever was done by Samuel H. Newell in the way of improving the premises, was manifestly done with the knowledge and consent of his wife Mary Newell, who with him has had possession of the premises since the date of purchase. The plaintiff’s title was not obtained until long after the completion of the stone building, and only about two months before the commencement of this action; hence, defendants only denied plaintiff’s title during that brief time. The rents, issues and profits of the premises separate and apart from the improvements, during the time they were in the possession of the defendants, were all necessary for the payment of' the taxes; therefore no money was due plaintiff on account of such rents, issues and profits, unless defendants should be held accountable for the rents, issues and profits of the building, which was erected while they had exclusive possession thereof.

Sec. 629 of the code provides that: “The court shall have full power [in partition of real property] to make any -order not inconsistent with the provisions of this article, that may be necessary to make a just and equitable partition between the parties, and to secure their respective interests.” The improvements in this case seem to have been made in good faith, the defendants supposing themselves to be legally entitled to the whole premises, and the court below did not err under the provisions of said section and the principle of equity in making the decree complained of. (1 Story’s Eq. Jurisp., §§ 655, 656; Freeman on Cotenancy and Partnership, §§ 509, 570.)

In the case of Scott v. Guernsey, 48 N. Y. 106, William Guernsey erected the buildings, not as having any interest in the property, but on a special agreement with the tenant for life. In that case, it was decided when the. life tenant died, the property as it stood with the buildings on it, belonged to the heirs, and that as William Guernsey continued to occupy it knowing all the facts, he was required to pay the full value of his occupation. In Austin v. Barrett, 44 Iowa, 488, Wilson, the grantor of Barrett, purchased an undivided one-tenth of the premises in dispute, and while it was his duty to pay the taxes on the premises, omitted so to do for the express purpose of permitting the land to be sold for taxes, to the end that he might become the purchaser, and thus cheat and defraud the other owners. After Wilson sold and conveyed his, interest to Barrett, the defendant Barrett obtained a tax deed upon the tax certificate obtained by the fraud of his grantor, and when tendered the money that he had paid out for taxes and other expenses, refused to take the money or make any settlement, on the ground that he had a good title to the land under such tax deed obtained to cheat and defraud his co-tenants. Neither of these cases is parallel to the one at bar, and they therefore do not conflict, with the principles embodied in the judgment of the trial court.

The order and judgment of the district court will be affirmed.

All the Justices concurring.