Hunt v. Meeker Cnty. Abstract & Loan Co.
| Decision Date | 15 December 1916 |
| Docket Number | No. 20066[116].,20066[116]. |
| Citation | 160 N.W. 496,135 Minn. 134 |
| Court | Minnesota Supreme Court |
| Parties | HUNT v. MEEKER COUNTY ABSTRACT & LOAN CO. et al. |
OPINION TEXT STARTS HERE
Appeal from District Court, Meeker County; R. T. Daly, Judge.
Partition suit by Alva R. Hunt against the Meeker County Abstract & Loan Company and H. I. Peterson. From the finding, and an order denying new trial, Alva Hunt appeals, as does defendant H. I. Peterson. Order reversed, with directions.
Where a tenant in common has given a mortgage upon his undivided interest in the fee, he cannot in a partition suit base error upon the action of the court in shifting the mortgage to the portion allotted to him.
Costs and disbursements in partition suits may, under section 8037, Gen. St. 1913, be apportioned between the parties in the district court; and no error was committed against plaintiff by an equal apportionment here, since he was not the prevailing party upon the real issue tried.
Where a permanent improvement has been erected by one cotenant with the consent of the other, the court, in a case of partition, where a division is practicable, may award that portion of the land upon which the improvement is to the one who erected it, without taking its value into consideration, provided no injustice results to the other cotenant; but, if a division cannot be had and a sale is necessary, the court may determine in what amount the present value of the whole is enhanced by reason of such improvement, and direct that out of the proceeds of the sale the amount so determined be paid to the cotenant who made the improvement.
The relation of landlord and tenant did not exist between the predecessors in interest of the parties hereto, so that the defendant is precluded from making a claim for the enhanced value given to the property by reason of the vault thereon erected by its predecessor in interest.
The undisputed facts show that the division here cannot be had without serious prejudice to the parties, and a sale is required. Alva R. Hunt, Ernest W. Campbell, and E. P. Peterson, all of Litchfield, for appellants.
Ray H. Dart, of Litchfield, for respondent.
On a former appeal in this case (Hunt v. Meeker County Abstract & Loan Co., 128 Minn. 207, 150 N. W. 798, Ann. Cas. 1916D, 925) it was determined that plaintiff's right to a partition of the premises was not suspended by the existence of an agreement under which plaintiff was to occupy the second floor and defendant the first floor of the building on the lot, but that partition could be had subject to the provision of this agreement made between former tenants in common of the property, and to whose rights the present parties have succeeded; each owning an undivided half of the fee. The case has since been tried, and the court found a division could be made without prejudice to either party, and awarded the south half of the lot and building to plaintiff and the north half to defendant, and made the mortgage which plaintiff had given upon his undivided half a lien upon the south half of the premises, and directed the costs and disbursements of the proceeding to be equally divided. Plaintiff moved for modification of the findings or a new trial. The motion was denied, and this appeal followed.
[1] The assignments of error center around these propositions argued in the brief of plaintiff: The court should not have taken into account the vault built by defendant's predecessor in interest; a division was not practical; the mortgage should not have been shifted; costs should not have been divided; and plaintiff should have been allowed for repairs made.
The mortgagee does not complain. The mortgage, being upon plaintiff's interest, should, of course, be shifted to the part allotted to him, or in case of a sale should be paid out of the portion of the proceeds awarded plaintiff.
[2] As to costs, it is not perceived that the court erred. It is necessary to resort to the district court, whether the suit for partition be amicable or otherwise; and that court is by section 8037, G. S. 1913, given the power to determine the portion that each one shall pay of the costs, charges, and disbursements in such suits. It is not to be assumed that the court in its order for judgment referred to any other costs or disbursements than the ones which under the section referred to may be apportioned between the parties. Moreover, the bone of contention in this action centers around the vault; and plaintiff seems bent upon depriving defendant of all benefit from that improvement, erected by defendant's predecessor in interest at large expense and of as permanent a nature as any part of the building of which it forms a part. On this issue defendant prevailed. The rule as to costs and disbursements which we held applicable in this court, on the taxation of costs on the former appeal (128 Minn. 539, 151 N.W. 1102) does not control the action of the district court with regard to the costs and disbursements under the section cited. An appeal is necessarily an adversary proceeding.
[3] The authorities are almost unanimous upon the proposition that, in a partition suit, where it is practicable to make a division of the property, the court, upon ascertaining that one cotenant has made a permanent and valuable improvement upon the real estate involved, will allot to him that portion upon which the improvement is located, not taking into account the value of the improvement; also, if a division cannot be made without prejudice to the parties, the court will determine the amount in which the value of the premises then stand enhanced because of the improvement, and direct that out of the proceeds of the sale there be paid to the one who made the improvement the amount so determined, and that the remainder be divided among the contenants in proportion to the undivided interest held by each in the property. In other words, if the improvement made exclusively by one cotenant adds to the price which the property will bring on a sale, the amount so added is to be paid to him. Freeman on Cotenancy and Partition, §§ 509-511; 30 Cyc. 233, § 5; McDaniel v. Louisville & Nashville Ry. Co., 155 Ala. 553,46 South. 981;Ventre v. Tiscornia, 23 Cal. App. 598, 138 Pac. 954;Cooter v. Dearborn, 115 Ill. 509, 4 N. E. 388;Noble v. Tipton, 219 Ill. 182, 76 N. E. 151,3 L. R. A. (N. S.) 645;Manternach v. Studt, 240 Ill. 464, 88 N. E. 1000,130 Am. St. Rep. 282;Carver v. Coffman, 109 Ind. 547, 10 N. E. 567;Parish v. Camplin, 139 Ind. 1, 37 N. E. 607;Killmer v. Wuchner, 79 Iowa, 722, 45 N. W. 299,8 L. R. A. 289, 18 Am. St. Rep. 392;Sarbach v. Newell, 30 Kan. 102, 1 Pac. 30;Fenton v. Miller, 116 Mich. 45, 74 N. W. 384,72 Am. St. Rep. 502;Ford v. Knapp, 102 N. Y. 135, 6 N. E. 283,55 Am. Rep. 782;Moore v. Thorp, 16 R. I. 655, 19 Atl. 321,7 L. R. A. 731;Ward v. Ward's Heirs, 40 W. Va. 611, 21 S. E. 746,29 L. R. A. 449, 52 Am. St. Rep. 911.
[4] But appellant insists that the vault was built by a lessee, and should be treated as an...
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