Henkel v. Henkel

• Decision Date: 14 December 1937
• Docket Number: No. 28.,28.
• Citation: 276 N.W. 522,282 Mich. 473
• Court: Michigan Supreme Court
• Parties: HENKEL et al. v. HENKEL et ux.

282 Mich. 473

276 N.W. 522

HENKEL et al.

v.HENKEL et ux.

No. 28.

Supreme Court of Michigan.

Dec. 14, 1937.

Action by Fredrec Y. Henkel and wife and another against Robert C. P. Henkel and wife, in which defendants filed a cross-bill. From a decree for complainants, defendants appeal.

Decree modified and, as modified, affirmed. Appeal from Circuit Court, Wayne County, in Chancery; Guy A. Miller, judge.

Argued before the Entire Bench.

Ralph E. Routier, of Detroit, for appellants.

Wilkinson, Lowther & O'Connell, of Detroit (Donald B. Smith, of Detroit, of counsel), for appellees.

POTTER, Justice.

Plaintiffs filed a bill for partition of real estate in Grosse Pointe Park village, Wayne county. Robert Henkel devised to his wife, Athene, a life estate therein and, upon her death, the fee to Athene H. Pitt, his daughter, and Robert C. P. Henkel and Fredrec Y. Henkel, his sons, share and share alike. Robert Henkel died, and his will was duly admitted to probate, and after the death of his widow, Athene, this suit was brought, and, pending suit, Mrs. Pitt conveyed her interest to Fredrec Y. Henkel. Defendants, by way of cross-bill, object to partition by sale; charge Fredrec Y. Henkel with maladministration of the estate of his father, failure to account, misappropriation of bonds of the estate, procuring large sums of money without authority, neglecting to pay the inheritance tax, and other things; and ask for an accounting. From a decree of partition by sale, without passing upon the question of accounting prayed by the cross-bill, defendants appeal.

At least as early as the reign of Elizabeth, partition became a matter of equitable cognizance, 4 Pomeroy's Equity Jurisprudence (4th Ed.) § 1387; 1 Fonblanque's Equity (4th Am.Ed.) b.1, c.1, § 3, note (f); and now the jurisdiction is established as of right in England and in the United States, 4 Pomeroy's Equity Jurisprudence (4th Ed.) § 1387; 2 Pomeroy's Equitable Remedies, § 703, and cases cited. The circuit courts and circuit judges in chancery in this state in and for their respective counties have jurisdiction co-extensive with the powers and jurisdiction of the courts and judges in chancery in England as existing on March 1, 1847, with the exceptions, additions, and limitations created and imposed by the Constitution and laws of this state. 3 Comp.Laws 1929, § 13944. The statutory remedy for partition is generally held to be cumulative and not to supersede the originaljurisdiction in equity. 2 Pomeroy's Equitable Remedies, § 703, and cases cited.

There is nothing in our partition statute which expressly limits the jurisdiction of the court of equity to the things mentioned in 3 Comp.Laws 1929, c. 31. But, instead, it is expressly provided: ‘All persons holding lands as joint tenants or tenants in common, may have partition thereof, in the manner provided in this chapter.’ 3 Comp.Laws 1929, § 14995. This court has repeatedly held that ‘partition may be decreed according to the equitable rights of the parties.’ Thayer v. Lane, Walk.Ch. (Mich.) 200, citing Coxe v. Smith, 4 J.C.R. 271.

In Hoffman v. Ross, 25 Mich. 175, each of the parties owned an undivided one-half of the premises, but the bill of complaint set up that defendant had collected the rents which were unaccounted for, claimed to have spent some of the money for repairs, had allowed one-half of the premises to be sold for taxes which he had not redeemed out of the rents and proceeds derived from the farm, and that he had become a purchaser of two execution sales, and had rented a part of the premises for purposes of prostitution. The court held all these were consistent with the plaintiff's right of action, and said: ‘They indicate that the defendant has been guilty of very gross violations of duty, some, at least, of which would be properly cognizable in settling the equites on the accounting for rents and profits, which is one of the important incidents, of a partition in equity’; citing Sotry's Eq.Jur. § in equity'; citing Story's Eq.Jur. §

In Hunt v. Hunt, 109 Mich. 399, 67 N.W. 510, there was an accounting for rents and profits, and some were charged against the shares of the parties. And in Fenton v. Miller, 116 Mich. 45, 74 N.W. 384, 385,72 Am.St.Rep. 502, it was said: ‘It is settled that on a partition it is competent for the court to adjust the equities of the parties, including rent to the excluded tenant,’ citing Hoffman v. Ross, 25 Mich. 175,Hunt v. Hunt, 109 Mich. 399, 67 N.W. 510, and Freem.Co-ten. § 512.

In Schultz v. Dennison, 159 Mich. 259, 123 N.W. 1094, 1096,25 L.R.A. (N.S.) 1249, it is said: ‘It is competent for the court in partition proceedings to adjust the equities of the parties in the decree,’ citing Fenton v. Miller, 116 Mich. 45, 74 N.W. 384,72 Am.St.Rep. 502.

These cases are either an exercise of the inherent equitable jurisdiction over partition proceedings or must be warranted, if the rules stated in Francis v. Ford Motor Co., 243 Mich. 117, 219 N.W. 649, and followed in Eckhardt v. Dompier, 250 Mich. 91, 229 N.W. 491, are correct, by that part of section 15011, 3 Comp.Laws 1929, which says that partition of lands shall be made between such parties as shall have any rights therein, according to such rights. In all matters covered by statute (3 Comp.Laws 1929, c. 31), the statute governs.

Defendants contend partition is not mandatory; and plaintiffs contend it is mandatory. 3 Comp.Laws 1929, § 14995, provides, only, that ‘all persons holding lands as joint tenants or tenants in common, may have partition thereof, in the manner provided in this chapter.’ In case the jurisdiction of the circuit court is invoked by a bill in equity, as provided in 3 Comp.Laws 1929, § 14996, and the proceedings progress to a hearing, then, ‘upon the hearing of the cause, the court shall declare the rights, titles and interests of the parties to such proceedings, so far as the same shall have appeared, and shall determine the rights of the said parties in such lands, and shall decree that partition be made between such of them as shall have any rights therein, according to such rights.’ 3 Comp.Laws 1929, § 15011. This language is mandatory.

‘The object of partition proceedings is to enable those who own property as joint tenants, or co-parceners, or tenants in common to so put an end to the tenancy as to vest in each a sole estate in specific property or an allotment of the lands or tenements. It contemplates an absolute severance of the individual interests of each joint owner, and, after partition, each has the right to enjoy his estate without supervision, let, or hindrance from the other. Unless this can be accomplished, then the joint estate ought to be sold, and the proceeds divided. Courts should be, and are, adverse to any rule which will compel unwilling persons to use their property in common.’ Brown v. Cooper, 98 Iowa 444, 67 N.W. 378, 380,33 L.R.A. 61, 60 Am.St.Rep. 190; 20 R.C.L. 716.

‘Although there are a few cases to the contrary, the rule is practically universal that a co-tenant is entitled at law to an actual partition as a matter of absolute right, and the fact that the division will result in great hardship and inconvenience or the virtual destruction of the property is no reason for withholding it. A co-tenant need not assign any reason for desiring a partition; it is sufficient if he wishes to enjoy his estate in severalty. Equity followed the law in this regard and decreed an actual partition notwithstanding manifest hardship. While equity treats the right to partition as absolute, it is not restricted, as is a court of law, to an actual physical apportionment according to titles proved, but having control of the parties and greater freedom of action, it may modify the hardships by adjusting the adverse interests and by making such an allotment as will most nearly effect justice and equality among the parties.’ 2 Pomeroy's Equitable Remedies, § 708.

As stated in 3 Comp.Laws 1929, § 15011, partition shall be made between such parties as have rights in the premises, according to such rights.

‘Although a contrary conclusion has been reached in a limited number of decisions, the general rule is, except in so far as it is otherwise provided by statute, that inconvenience or difficulty in making the partition or substantial loss or injury to some or all of the parties does not affect the right to partition, or present a valid excuse for material delay in according the remedy, although it has been held that the court may grant reasonable delay for the purpose of making partition less disastrous.’ 47 C.J. pp. 289, 290.

‘The right of a cotenant to partition is absolute, not a mere matter of grace, within the discretion of the court, regardless of the motives of the parties entitled to partition.’ 47 C.J. pp. 288, 289, and cases cited.

Partition in this case is mandatory, unless there is some paramount or controlling equity which warrants the court in refusing to act; and we find none.

At common law, in the absence of an agreement between the parties, the only method by which partition could be compelled was by the writ de partitione facienda. 1 Fitz-Herbert Nat.Brev.(9th Ed.) p. 62. The writ was, according to Littleton, the origin of the name ‘coparceners' (Littleton's Tenures, § 241; Coke's Littleton, p. 164b), and was confined to freehold hereditaments held in coparcenary (Coke's Littleton, p. 167a). The remedy was afterward extended by statute to joint tenancies and tenancies in common. 31 Henry VIII, ch. 1; 32 Henry VIII, ch. 32; 4 Pomeroy's Equity Jurisprudence (4th Ed.) § 1386; Shaw v. August, 266 Mich. 634, 254 N.W. 231.

Equity, at a very early date, took jurisdiction of proceedings for partition. In Select Cases in Chancery, 10 Selden Soc. Pub. p. 129, is a petition by William Brigge, parson, to partition lands devised to himself and brother Thomas, addressed to the chancellor. The precise date of this petition does not appear, but it is addressed to the ...