Cocke v. Clausen

Wood, J.,

(after stating the facts.) From the above and other proof in the record, we conclude:

1. That in the year 1889 Mrs. Botts received from Samuel Floyd rent for the. land in controversy amounting to $1,000. The improvements—engine, gin, boiler, etc.—which Floyd evidently put up on the land in the early part of 1889 were at that time worth, according to the testimony of Cocke, $1,135. There was then a difference of only $135 between the value of the machinery, when Mrs. Botts purchased and came into possession of it from Floyd, and the value of the rents received by Mrs. Botts for the year 1889.

Mrs. Botts, had she brought suit in equity for partition at that time, would have been entitled to recompense for the value of the improvements. McDearman v . McClure, 31 Ark. 562; Jones v. Jones, 23 Ark. 213; Drennen v. Walker, 21 Ark. 557. Appellees in such a proceeding would also have had the right to have their pro rata share of the value of the improvements paid or set-off by their pro rata share of the rents which their co-tenant in common had received. Section 5917, Sandels & Hill’s Digest. “Where one tenant in common has been in the exclusive perception of the rents and profits, on a bill for partition and account, the latter will also be decreed.” 1 Story, Eq. Jur. § 655, and authorities cited; Drennen v. Walker, supra.

When Cocke & Co. foreclosed their deed of trust, and purchased the lands and improvements thereon, they acquired only the interest that Mrs. Botts had when she executed the deed of trust. 'As we have seen, at that time the improvements which Mrs. Botts had put upon the land (treating her as the one making such improvements) had all been paid for, except, perhaps, the sum of $135. So that appellants, as tenants in common with appellees, in a suit for partition, would have no right to have the lands partitioned so as to give them a onéthird interest therein, exclusive oí the improvements, and then have compensation for improvements also; for the appellees, as we have seen, with a possible exception of the amount of $135, had paid for the improvements, and owned same, before Cocke & Co. became tenants in common.

But, even if appellees had not already paid for their share of the improvements to Mrs. Botts in the manner indicated, still Cocke & Co. would have no right to compensation for same from the appellees in a suit for partition, for another reason, to-wit: It appears, by the written agreement between appellants, Cocke & Co., and J. E. and Nannie Botts of December 27, 1889, that appellants had acquired from Floyd the unexpired term of Floyd’s lease, and that appellants on that day leased or rented same back to Mrs. Botts for the sum of $1,000 for the years 1890, 1891, and 1892, annually, to be paid November 1, 1890, November 1, 1891, and November 1, 1892. Appellants, having thus assumed to act as landlords of the premises, and having collected from Mrs. Botts the rents for the year 1890’, would be responsible to the appellees, as tenants in common of an undivided two-thirds, for their share of said rents. And, in this suit by appellants to have compensation for the improvements, appellees certainly have the right to show that the improvements had been paid for to appellants by their perception of the entire rents of the place for the year 1890. These rents just about offset the value of the improvements. Therefore, from any point of view we may take, the decree was substantially correct in overruling the exception to the report of,the commissioners as to the partition of the property, and in confirming said report as made.

2. As to the claim of appellees for rents for the years 1890, 1891 and 1892: The improvements having been paid for (except about $135) out of rents collected by Mrs. Botts for the year 1889, appellees, as tenants in common, would be entitled to two-thirds of the rents of thelands for the year 1890, less two-thirds of one hundred and thirty-five dollars, because for that year the proof warrants the conclusion that Cocke & Co., as the landlords, collected rent amounting to the sum of $1,000 from Mrs. Botts. It is objected here, for the first time, that the claim for rent, as pleaded in the answer of appellees, is not sufficient to entitle them to any relief whatever.

This court said in Drennen v. Walker, supra, that ordinarily correlative to the question of improvements is that of reDts and profits. The answer of appellees, after setting up a claim for rents for various years, and specifically alleging the amounts due them, and alleging “that said rent collected by Mrs. Botts and Cocke & Co., and appropriated by them, and wrongfully detained from these defendants, should be reimbursed to them out of said improvements, besides any share which may rightfully belong to them,” prays that “same may be done,” and “that they be allowed judgment for same.” In Harrison v. Harrison, 56 Miss. 174, it is said: “On a bill by one tenant in common for partition, where one defendant by his answer sets up a claim for contribution from the other co-tenants for certain expenditures k on the estate, the relief may be granted him, although he did not make his answer a cross bill.” This would apply to a claim for rents. And especially might such relief be granted where, as here, there was no objection below to the form of asserting the claim for rents, and the proof was had and the case was heard by the court below just as though the defendants had set up their claim for rent by cross bill, or in an independent proceeding. Where “matters only proper, for a cross bill are included in the answer, and no objection has been made after evidence introduced by both parties, and the issues have been determined thereon, the irregularity is waived, and affirmative relief may be granted as if a cross bill had been filed.” 1 Enc. Pl. & Prac. 872, and authorities cited in note. Appellees- were entitled to a decree against appellants for two-thirds of the rent for the year 1890, or $666.66, less two-thirds of $135, which appellees still owed for the improvements.

As to the rents for the year 1891, there is no proof whatever that appellants ever received any rents as landlord for that year. Cocke swears that their firm did not receive any rents for that year from the lands which it had previously sublet to Mrs. Botts, and the written agreement of the 2d day of February, 1891, between J. E. and Nannie E. Botts and J. L. Cocke So Co. had the effect to abrogate the prior agreement between Mrs. Botts and Cocke So Co. whereby Mrs. Botts had agreed to lease and rent the lands from Cocke So Co. for that year. For this agreement of February 2, 1891, shows that Mrs. Botts had assumed to stand as landlord of the place for that year to one. Wheeler, who, it seems, had the place rented, and she expressly waived any claim for rents on the place for that year until the sum of fifteen hundred dollars was paid to J. L. Cocke So Co. for supplies advanced to Wheeler, if they equaled that sum. If J. L. Cocke So Co. could be made responsible at all to the appellees for the rents of 1891, it would be upon the theory that they had received cotton from the place, upon which there was a landlord’s lien for rents with notice of such lien. But this would not be tenable, for two reasons: First, because the proof is hardly sufficient to charge them with notice of appellee’s lien; and, second, if it were sufficient, the lien of a landlord for rent expires in six months after the rent becomes due and payable. Sand. So H. Dig., § 4794. The rent for the year 1891 would be due at the end of the year, and this claim for rents was not set up until appellee’s answer was filed in this case, November 13, 1894. Appellants could not be held for the use and occupation for this year (1891), because they did not use and occupy. They could not be held for rents collected, because they did not collect any, nor for the purchase of dotton that should have gone to pay the landlord’s lien for rent, for the reasons stated. The decree, therefore, in favor of appellee Urie for the rent of 1891 is erroneous.

As to the rent of the year 1892, the court was clearly correct in holding that appellants were not liable to appellees for the rents of 1892. The proof shows that one B. L. Armstrong was appointed a receiver in a suit between J. L. Cocke & Co. et al. v. Nannie E. Botts et al. in a controversy over the property involved in the present suit, and that as such receiver he collected the rents for the year 1892, and, under the orders of the court in that case, paid same over to the parties; one-third being paid to Cocke & Co., and two-thirds to the representative of the appellees here-

The decree of the -Crittenden chancery court in overruling the first and fifth (or last) exceptions to the commissioner’s report is affirmed. As to the second, third and fourth exceptions, what its rulings should have been on these is sufficiently indicated by what we have already said. The decree, in so far as it denies Mrs. Clausen her share of the rents of 1890, and gives Urie rents for 1891, is reversed. Appellants did not set up limitations or laches against the claim for rents. The court should have given a decree for Mrs. Clausen and Urie for two-thirds of the rent of 1890, less two-thirds of $135. Reversed and remanded, with directions to enter a decree in accordance with this opinion.

Bunn, C. J., dissents. Battle, J., dissents from so much of decree as allows rents to appellees.