Burch v. Burch

• Decision Date: 31 March 1885
• Citation: 6 Ky.L.Rptr. 691,82 Ky. 622
• Parties: Burch, & c., v. Burch, & c.
• Court: Kentucky Court of Appeals

82 Ky. 622

6 Ky.L.Rptr. 691

Burch, & c., v. Burch, & c.

Court of Appeals of Kentucky.

March 31, 1885

1. There is no lien in favor of a joint tenant against his co-tenant for rents collected by the latter before a partition of the land.

2. Such rents only constitute a personal charge against the joint tenant so collecting.

APPEAL FROM MEADE CIRCUIT COURT.

LEWIS &amp FAIRLEIGH FOR APPELLANTS.

1. There is no legal or equitable reason why one joint tenant should have a lien upon the land of his co-tenant for rents collected by him.

2. If a lien exist, it must be founded upon the doctrine of equitable liens. But such lien does not exist. There is no authority for it. (Nelson v. Clay, 7 J. J. Mar., 140; Graham v. Graham, 6 Mon., 561; Coleman v Hutchinson, 3 Bibb., 211; O'Bannon v. Roberts, 2 Dana, 54.)

A DUVALL AND JESSE S. TAYLOR FOR APPELLEES.

We maintain that there is no error in the judgment. Although no direct authority can be found upon the question, we think that upon equitable principles a lien exists in favor of a joint tenant against his co-tenant, who, without authority rents the entire tract, and after collecting the rents refuses to account for the share of those not in possession.

OPINION

LEWIS JUDGE:

In 1855 the heirs at law of Leonard Burch, deceased, recovered judgment for a tract of land, containing about 700 acres. And in 1858 one of the heirs instituted an action against Thomas B. Burch, administrator, and also an heir, for a settlement of the estate and partition of the land between the seven heirs, it being stated in the petition that he had fraudulently conveyed it to one Carrico, who was made a defendant to the action.

Three other actions for the same purpose were subsequently commenced. But in 1865 they were all consolidated and thereafter tried together; though it was not until 1879 that a judgment for partition was rendered.

In defense of the actions Thomas B. Burch, before his death in 1863, and his heirs afterwards, denied the right of the other heirs of Leonard Burch to any part of the land, contending that it was not more than sufficient to compensate him as administrator, and for the extraordinary labor and expense incurred by him in maintaining the protracted litigation begun in 1841 to recover the land, and also contended that he was the rightful owner by purchase of four-sevenths of it.

By the deed made in 1860 Thomas B. Burch conveyed to Carrico absolutely four-sevenths of the land, and the latter took possession of the whole of it, and occupied and used it several years. But an agreement in writing was at the same time entered into between them that the land conveyed was to be held by Carrico, subject to he conditions and for the purposes therein recited. And some time after his death the heirs of Thomas B. Burch took possession, claimed and held different parcels of the land.

By the judgment rendered in 1879 three of the heirs of Leonard Burch were entitled each to one-seventh of the land, and commissioners were appointed to divide it accordingly, and the master commissioner was directed to ascertain and report the value of rents and improvements. And in 1881 a judgment was rendered in favor of appellees against the estate of Thomas B....