Citation Numbers: 170 Misc. 71
Judges: Personius
Filed Date: 2/1/1939
Status: Precedential
Modified Date: 1/12/2023
Seymour S. Eaton died testate January 18, 1918, leaving a farm containing about 206 acres of land. By his will he devised all his property to his wife, Adelaide E. Eaton, “ she to have the privilege of using the same as she shall see fit, and at her death the residue and remainder shall be divided between my two sons, Roy L. Eaton and Clyde M. Eaton, share and share alike.” Clyde M. Eaton was named executor and qualified. The testator’s wife died about May 19, 1925, intestate, leaving said Roy L. Eaton and Clyde M. Eaton as her sole surviving heirs and next of kin.
The complaint alleges that the said Roy L. Eaton and Clyde M. Eaton, upon the death of their mother, became and are the owners in fee simple as tenants in common of said property, each seized of an undivided one-half and that the defendant Clyde M. Eaton is in possession. It demands the sale and partition of the property and that the defendant Clyde M. Eaton render an account of the receipts and proceeds thereof during his occupation.
The defendant Clyde M. Eaton, here referred to as the defendant, answered. For separate defenses his answer alleges: (1) That after the death of his mother, the plaintiff agreed to sell his interest in the premises to the defendant for the sum of $1,200, which the latter paid; (2) that the said defendant Clyde M. Eaton has expended large sums of money, approximately $11,000, in repairs and improvements of the property, relying on said agreement; (3) that by Seymour S. Eaton’s will his wife Adelaide took all of his property; that she sold and disposed of his personal property
At the trial the defendant moved to dismiss the complaint on the ground that it appeared from the pleadings that the actions for partition and accounting were each outlawed and barred. The Statute of Limitations was not set up in the answer but the defendant moved to amend his answer by alleging it. The decision on the defendant’s motion to dismiss was reserved.
In passing we refer to the defendant’s demand for a construction of Seymour S. Eaton’s will. A construction thereof seems unnecessary. Whether the plaintiff and the defendant Clyde M. Eaton took by devise under their father’s will, or by inheritance from their mother, upon her death each became seized of a one-half undivided interest in the property.
Coming to the question of the Statute of Limitations, the defendant argues that this action for partition comes within section 53 of the Civil Practice Act which provides: “ An action, the limitation of which is not specifically prescribed in this article, must be commenced within ten years after the cause of action accrues.”
The defendant has not alleged and does not claim to hold the premises by adverse possession; in fact he disclaims such holding.
Admitting that this action does not fall within the previous sections, does section 53 apply? If it does, the action is barred as the plaintiff and defendant became seized of the property in 1925.
The plaintiff argues that the Statutes of Limitations do not apply; that an action for partition continues as long as common ownership exists; that it is a continuing cause of action, not barred by any Statute of Limitations. We think the cases support the plaintiff’s contention. (Matter of Wood, 68 Misc. 267; Willis v. Sterling, 224 App. Div. 647; Dresser v. Travis, 39 Misc. 358; affd., 87 App. Div. 632; Ford v. Clendenin, 215 N. Y. 10; 30 Cyc. 190.) In Matter of Wood (supra) the court said (at p. 269): “ The Statute of Limitations does not apply to partition actions and accountings in partition actions, so long as the relation of cotenancy exists.” Dresser v. Travis (supra) was an action for partition. After considering at length the facts determining the title, the court said (at p. 364): “ As to that portion of the estate * * * the four daughters * * * are tenants in common. An action for partition of the property may be maintained * * *. The cause of addon is
The defendant’s motion is denied.