Fenton v. Wendell

• Decision Date: 01 March 1898
• Citation: 116 Mich. 45,74 N.W. 384
• Court: Michigan Supreme Court
• Parties: FENTON v. WENDELL ET AL.

74 N.W. 384

116 Mich. 45

FENTON v. WENDELL ET AL.

Supreme Court of Michigan

March 1, 1898

Cross appeal from circuit court, Mackinac county, in chancery Oscar Adams, Judge.

Bill by Charles B. Fenton against Annie M. Wendell (Miller) and others for partition. From the decree entered on the report of a referee as to the respective rights and liabilities of the parties as to improvements, taxes paid, rents received etc., complainant and defendant Romain I. Wendell appeal. Modified.

Henry Hoffman (C. R. Brown, of counsel), for complainant.

James McNamara (John Atkinson, of counsel), for defendants.

MONTGOMERY J.

Complainant filed the original bill in this case, praying for a partition of lot 12 in the village of Mackinaw. An answer was put in and subsequently proceedings were stayed until the title of complainant could be established at law. This complainant was able to do (see Fenton v. Miller, 65 N.W. 966); and thereupon, on the 5th day of October, 1896, an amended and supplemental bill was filed, setting up that, since the filing of the original bill, Annie M. Wendell-Miller and Eva M. Wendell-McKinnon had conveyed their interests in the property to Romain I. Wendell, and praying partition, or, if the property cannot be divided without prejudice, that it be sold, and the proceeds divided, and that an account be taken of the rents and profits. The interest of complainant, as alleged in the bill, and as established on the trial, is 13/21. The remaining 8/21 was, after the conveyance to Romain I. Wendell, wholly vested in her. On the same day that the amended bill was filed, an answer was filed by Annie M Wendell-Miller, which set up that the defendant had spent large sums in improvements, and asked a decree in her favor for the same. Mrs. McKinnon and Romain I. Wendell answer, alleging that their occupancy of the property was while they were minors and members of their mother's family, at least up to November 4, 1895, when Romain I. Wendell became of age, and that they are not properly chargeable with rents and profits during this time. On the filing of their answer, a consent decree was made, reciting that Romain I. Wendell had succeeded to the interests of her co-defendant in the premises, defining the respective interests of the complainant and defendant as found in the suit at law, reciting that the premises were so situated that an equitable division could not be made, and providing for a sale of the premises, the payment of a portion of the purchase money into the court, and a reference to take testimony touching the improvements made upon the premises, taxes paid thereon, the rents received, etc. In pursuance of this preliminary decree, a sale was made, at which complainant became the purchaser, at the price of $7,500. Eight twenty-firsts of this sum, or $2,849.24, was paid into the court, and remains in the hands of the register of the court, to abide the final order of the court. The parties proceeded to take testimony touching the rents and profits, improvements, repairs, insurance, etc. The case was brought to a final hearing, and decree made, declaring: (1) That defendants Eva M. and Romain I. are not responsible for the rents and profits. (2) That defendant Annie M. Wendell should be charged with rents and profits amounting to $5,100 in the whole, 13/21 of which belongs to complainant, viz. $3,157.05; that she should be credited with improvements and betterments, $4,737.21; with insurance paid, $406.50,-making a total of $5,409.77, 13/21 of which is $3,248.80, leaving a balance against complainant of $191.75, from which was deducted 8/21 of certain taxes paid by complainant, $25.52, leaving the final balance, $166.23, which was decreed to defendant Romain I. Wendell. (3) The costs were decreed to complainant. From this decree both parties appeal.

It is contended on behalf of defendants that no allowance should be made for the value of the use and occupancy of the premises by Mrs. Wendell. The statute (section 5778, How. Ann. St.) limits recovery against a co-tenant to moneys actually received by the tenant in possession in excess of his just proportion of the rents and profits. This statute is a substantial re-enactment of the statute 4 Anne, c. 16; and under the English decisions, to justify a recovery under this statute, the tenant must actually have received rents and profits. His exclusive occupancy is not enough to create liability. Henderson v. Eason, 17 Adol. & E. (N. S.) 701. See, also, Everts v. Beach, 31 Mich. 135. But this statute has not been construed as impairing the common-law remedies existing in favor of the co-tenant who is excluded from possession by the occupying tenant. In such a case he may maintain ejectment, and in another action recover the profits. Indeed, the most forcible reason given against a right to recover on a showing of mere occupancy is that plaintiff's mere omission to occupy ought not to constitute a ground of action against one who occupies of right. In this case it appears by defendants' answer to the original bill, filed by Annie M Wendell-Miller, December 24, 1896, that the...