Smith v. Smith , 133 Ga. 170 ( 1909 )

Lumpkin, J.

Beuben H. Smith made application to have certain farming land, comprising about seventy acres, partitioned between himself and his brother, alleging that they were remainder-men in fee simple under the will of their father," after a life-estate devised to their mother, who had died before the application was made. The defendant filed objections to the application, and also filed equitable pleadings by which he claimed that a parol partition had been made between himself and his brother during the continuation of the life-estate, and that this had been followed by possession and the mating of improvements by him. There was no evidence of any consummation of the partition in severalty or improvements after the death of the life-tenant. Under the evidence and the charge of the court, the jury found in favor of the defendant for that portion of the land claimed by him. A motion for a new trial was made and overruled^ and the plaintiff excepted.

An agreed partition of land is such a contract as is required to be in writing, under the statute of ffauds. A mere parol partition, without more, will not suffice. In some States it is held that a parol partition, though consummated by possession under it and acquiescence in such possession will not vest the legal title in severalty, unless the possession be continued for a sufficient length of time to raise the bar of the statute of limitations, or confer title by prescription. In equity the rule is generally recognized that a parol partition, followed by exclusive possession in severalty and the exercise of ownership by the parties respectively for a considerable length of time, with the acquiescence of all concerned, will give an equitable title and right of exclusive possession to each cotenant. In this State, where the distinction between proceedings in law and equity is not so closely observed as in some others, it has been held, that, “Where tenants in common agree by parol upon a partition, defining in the agreement the boundaries of the part assigned to each in severalty, and each enters into possession, thus executing the agreement, the partition clothes each with a perfect equity, and is thus the equivalent of legal title.” Adams v. Spivey, 94 Ga. 676 (30 S. E. 422); Welchel v. Thompson, 39 Ga. 559 (99 Am. D. 470); Blacker v. Dunlop, 93 Ga. 819 (21 S. E. 135); Ralph v. Ward, 109 Ga. 363 (34 S. E. 610). In this case there was no written contract of partition; but there was evidence tending to show a parol contract, which it was contended was consummated and became effective. A life-tenant in land is entitled to the possession and use of it to the exclusion of the remaindermen. They have no right to possession until the termination of the life-estate. They could not, therefore, lawfully consummate a parol agreement to divide their remainder estate by taking possession in severalty of their purparts during the continuance of the life-estate, unless the life-tenant relinquished or released his right and permitted the remaindermen to take possession as such. There is no evidence of any such release or agreement on the part of the life-tenant here. Hence' there was no evidence of a lawfully consummated partition by the remaindermen. After the termination of the life-estate, one of the remaindermen applied for a partition. The other sought to set up certain equities. He alleged the making of certain improvements by him, and sought to have the partition, if allowed, so made as to set apart to him that portion of the land on which the improvements were located. Improvements made by a life-tenant usually attach to the estate and pass to the remaindermen, after the termination of the life-estate, without liability on their part to make compensation therefor. If there are two remaindermen, improvements made by the life-tenant as such would inure to the benefit of both of them. If the defendant, in making the improvements during the life-estate, alleged by him in his equitable cross-petition, merely represented the life-tenant, acted for her, and made the improvements with her funds, or proceeds of the life-estate, belonging to her, they would fall under the rule above stated, unless some agreement as to the-making of them were shown which would change the general rule. If one remainderman as such made the improvements, acting, not for the life-tenant, but for the improvement of the property, with his own funds, and relying on a parol agreement for partition, they would not stand as improvements made by the life-tenant within the rule stated; but if permanent in character and benefiting the remainder estate, in equity they would be taken into consideration in making the partition by a division of the tract of land and determining which part to assign to him, after the termination of the life-estate, if so doing would not injuriously affect the cotenant. Such permanent improvements, however, must have been placed upon a portion of the land by the cotenant bona fide for the purpose of improving the property, and not of embarrassing his cotenant, or encumbering the estate, or hindering partition. It has been said, in reference to an allowance for improvements by a cotenant, that “the most equitable mode of making such an allowance is to assign to the tenant who has made the improvements that portion of the property on which they are situated, the division being made on the basis of the unimproved value; and this is the method which is adopted whenever the nature of the property and the improvements, and the situation of the latter, are such as to render it practicable, and it can be done without injury to the other cotenant.” 16 Am. & Eng. Enc. Law (2d ed.), 112. We are not now dealing with any effort to hold a cotenant liable for improvements, or to charge the land with them, or have any accounting for them, but with things which may be considered in assigning one part of a tract of land to one cotenant, rather than to the other, upon equitable partition. If the improvements were not placed upon the property to improve it permanently, but only for the benefit of the life-estate, under some arrangement between the defendant and the life-tenant by which he enjoyed in part such life use, the rule just stated would not apply. See, on the general subject, 16 Am. & Eng. Enc. Law (2d ed.), 111 et seq., and citations; 21 Id., 1137 et seq.; Knapp on Partition, 377, 387; Freeman on Cotenancy and Partition (2d ed.), §§400, 509; Broyles v. Waddell, 67 Tenn. (11. Heisk.) 32; Hall v. Piddock, 21 N. J. Eq. 311 (3); Brookfield v. Williams, 2 N. J. Eq. 341; Civil Code, §§4783, 4785, 4796. The headnotes require no further elaboration. The judgment must be reversed and the case remanded for another trial upon proper issues raised by the pleadings and the evidence.

Judgment reversed,.

All the Justices concur.