Courtenay v. Hayden

• Decision Date: 14 November 1921
• Docket Number: 22022
• Citation: 89 So. 777,127 Miss. 13
• Court: Mississippi Supreme Court
• Parties: COURTENAY et al. v. HAYDEN et al

89 So. 777

127 Miss. 13

COURTENAY et al. v. HAYDEN et al

No. 22022

Supreme Court of Mississippi

November 14, 1921

PARTITION. Minor eotenants living with their mother, who was lessee were not liable on partition for rents.

Where a mother individually leased property and entered into possession with her minor daughters, who subsequently became cotenants with others in the leased premises, they were not in possession as cotenants, and on partition were not liable for rent.

HON. D M. RUSSELL, Chancellor.

APPEAL from chancery court of Harrison county, HON. D. M. RUSSELL Chancellor.

Suit by Mrs. Justin Ella Hayden and others against Mrs. Lelia Courtenay, guardian for Lucile Courtenay, and another minors, for partition, in which the property was sold, but the defendant refused to vacate the premises, and a judgment in another case to bust her was not enforced, and she filed objections to the confirmation of the report of sale, and from a decree therein she appeals. Affirmed in part and reversed in part.

Decree affirmed in part and reversed in part.

Mize & Mize, for appellant.

Counsel in all of their writing, fail to explain why or to give any logical reason or cite any authority why, in a case where an individual rents property belonging to an estate, as Mrs. Lelia Courtenay did in this case from the administration and get in debt for the rent, the interest of the minors who own one-seventh of the property should be taxed with six-sevenths of the rent due by this individual to the estate, just because she happens to be the mother of the minors, where she did not rent the property as guardian for them, but for herself personally. If she did not pay the rent, she could have been ousted, but, because she was not ousted and incurred personal debt and liability, did not give the court authority to tax the interest these minors owned in the property with six-sevenths of the indebtedness incurred by their mother, not as their guardian, but under a contract of rent made by her personally.

Appellee cites the case of Walker v. Williams, 84 Miss. 392, but this case is not in point here under the facts of this case, of course, it cannot be denied, that each co-tenant has a lien upon the interest of every other for the value of the use and occupation of the joint estate beyond such tenant's individual interest therein. But the facts here are that these four minors, if they lived on this property with their mother, Mrs. Lelia Courtenay, were not occupying the property as co-tenants occupying a joint estate by reason of their owning one-seventh interest, but were simply living with their mother, as minors, in the property which she had leased as an individual. The administrator of the estate, with the consent of all the co-tenants, had leased this place to Mrs. J. M. Courtenay, who is Mrs. Lelia Courtenay, as an individual and she was occupying the premises under said lease, and the minor children, who happened to have a one-seventh interest in the place, were not living with their mother on the premises, if they stayed there, by reason of any interest they owned in it, but lived there with their mother, who had leased the place personally, as her minor children, and in no way in the capacity of co-tenants.

W. L. Wallace, for appellee.

These four children of Mrs. Lelia Courtenay owning only a one-seventh interest in this property occupied with her the same for a period of two years, seven and one-third months up to the date of the decree, to the exclusion of the other co-tenants owning a six-sevenths interest, and without the payment of any rent. The record shows the rental value of the property was four hundred dollars per annum or thirty-three and one third dollars per month. The rental for the period of occupation, therefore, would be one thousand and thirty-three dollars. Of this it is shown two hundred and thirty-three dollars was paid for rent before these minors had acquired any interest in it. As the testimony is that after this time her possession was that of the minors, then they are chargeable for the rent in excess of their interest, or six-sevenths of eight hundred dollars the rental for the period of their use and occupation as co-tenants. This is what the chancellor charged against them.

Likewise he charged them with one-seventh their proportionate part of the taxes and insurance paid by their co-tenants and directs they also pay their one-seventh proportionate part of the Cuevas claim and the claim of Mrs. J. M. Courtenay. To these latter items, strange to say, appellants do not object. Could this be for the reason that unless the owners of the six-seventh interest were charged with their proportionate share of the amount for work not authorized by them the loss of the entire amount might fall upon the claimants?

Certainly if the owners of the six-seventh interests are chargeable pro rata with a sum equal to their interests, account of the claims of Mrs. Courtenay and Mr. Cuevas, then the owners of the seventh interest are chargeable pro rata for the use and occupation of the premises in excess of their shares of the common estate, and with their pro rata of the taxes and insurance paid by the owner of the six-sevenths interest. Not only is this equity and common honesty, but it is the law, and so held repeatedly by this court.

There is not a denial of a single allegation in the pleadings on behalf of the appellees, that the minor children of Mrs. J. M. Courtenay might not have been in the use and occupancy of the premises is suggested in appellant's brief, but it is not denied, and if it were the proof and the admissions of Mrs. Courtenay are to the contrary.

Because she was their guardian and lived with them in the house and was the head of the family does not affect the right of the co-tenants for the accounting, nor limit the liability of her minor children's interest to compensate the owners of the sixth-seventh interests for the minors use and occupation of the common property. Wee Walker v. Williams, 84 Miss. 392, 36 So. 480.

Appellants say the court was without authority to settle the equities as was done in the chancellor's decree. This is a most remarkable contention. It needs no citation of authorities to support the court's power in this regard. The court's...