Hunt v. Meeker County Abstract & Loan Company

• Citation: 150 N.W. 798,128 Minn. 207
• Decision Date: 15 January 1915
• Docket Number: 18,945 - (160)
• Parties: ALVA R. HUNT v. MEEKER COUNTY ABSTRACT & LOAN COMPANY
• Court: Minnesota Supreme Court

150 N.W. 798

128 Minn. 207

ALVA R. HUNT v. MEEKER COUNTY ABSTRACT & LOAN COMPANY

Nos. 18,945 - (160)

Supreme Court of Minnesota

January 15, 1915 ^[2]

Action in the district court for Meeker county for the cancelation of a lease and a sale of the premises. The case was tried before Qvale, J., who made findings and dismissed the action. From the judgment entered pursuant to the order for judgment plaintiff appealed. Reversed.

SYLLABUS

Partition -- agreement by cotenants.

1. Cotenants may make any agreement they choose in respect to the use by each other of the common property, but such agreements do not constitute a partition thereof, unless they provide or contemplate that title to specific portions thereof shall vest in such cotenants in severalty.

Partition.

2. A cotenant has the right to compel a partition of the common property, unless such right has been suspended or waived by some agreement, in respect to the property, made by himself or by one through whom he claims.

Partition

3. Such right may be suspended for a limited time by express agreement, or by acquiring the property for, or devoting it to, some purpose which will be defeated by a partition; but such right is not suspended by the existence of an interest in the property, or of a right to occupy or use it, which may continue and be given effect notwithstanding the partition.

Partition

4. Under and pursuant to a contract made at the time of the construction of the building in controversy, plaintiff is in possession of the second floor thereof and defendant of the first floor thereof. It is held that their respective rights of occupancy under this contract may exist after partition the same as before; and that plaintiff may compel a partition, but that such partition will be subject to such rights of occupancy.

Alva R Hunt and Ernest W. Campbell, for appellant.

R. H. Dart and E. D. Fitchette, for respondent.

OPINION

TAYLOR, C.

On March 30, 1885, E.P. & H.I. Peterson, then owners of lot 26 of block 59 in the village of Litchfield, of the first part, and H. S. Branham, of the second part, entered into a written agreement "for the purpose of jointly erecting" a two-story brick building on said lot, "the first story thereof to be used by the said H. S. Branham for a banking, abstract and real estate office, and the second story thereof to be used by the parties of the first part for a printing office and law office or other suitable office for business." The agreement provided that the Petersons should convey "an undivided one-half interest" in the lot to Branham for the sum of six hundred dollars to be paid by him; that "the parties hereto * * * will together cause to be erected on said lot 26 of block 59 a substantial brick building of two stories and a basement;" that "the first story thereof shall be made suitable for a bank and abstract office (except that the bank fixtures and vault, if any, shall be constructed and paid for by said H. S. Branham alone) and the second story thereof shall be fitted up suitable for printing office and law office;" that "the expenses of constructing the same * * * shall be equally borne, to-wit, one-half by the parties of the first part and one-half by the party of the second part;" and that

"When said building is completed the same and the lot on which it stands shall be the property of the parties hereto in equal undivided shares; and the said H. S. Branham shall have the use and occupation of the first story thereof for a rental value of three hundred sixty dollars per annum, and the said first parties shall have the use and occupation of the second story thereof for a rental value of two hundred dollars per annum and after deducting taxes, insurance and necessary repairs on said building from the said annual surplus of rental of said first story the amount remaining shall be equally divided by the parties, and the basement shall be rented to the best advantage and the proceeds equally shared by the parties hereto."

The parties forthwith constructed and completed the building under and in accordance with the agreement, and Branham, at his own expense, constructed a vault of brick and steel in the basement and first story thereof. At the completion of the building the Petersons executed a warranty deed conveying to Branham

"An undivided one-half interest in and to lot number twenty-six (26) in block number fifty-nine (59) in the village of Litchfield, according to the plat thereof on file and of record in the office of the register of deeds in and for said Meeker county. Also the whole and entire book vault as the same now is in the basement and first story of the building on said lot. All subject to a contract of date March 30, 1885, by which the said second parties are to occupy the first floor of the building on said lot at a rental value of 360 dollars per year and the first parties are to occupy the second floor thereof at a rental value of 200 per year."

Branham took possession of the first story of the building, and he and those holding under him have continued in possession thereof ever since; the Petersons took possession of the second story, and they and those holding under them have continued in possession thereof ever since. The rights in the property possessed by Branham have passed to and vested in defendant; the rights of the Petersons have passed to and vested in plaintiff. Instead of paying for taxes, insurance and repairs out of the amount by which the agreed rental for the first story exceeded that for the second story and then dividing the remainder of such excess, the occupants of the first story have always paid the full one-half of such excess to the occupants of the second story, and each party has paid his own taxes and insurance and for such repairs as he caused to be made upon that portion of the premises occupied by himself; and the parties jointly have borne the expense for repairs made to the roof or basement. The co-owners followed this course for some 20 years, but, after plaintiff acquired the Peterson interest, he insisted that defendant contribute toward repairs on the second story, and a controversy arising he brought this suit for partition. He alleged that the property could not be divided, and asked that the contract as to occupancy be cancelled, and that the property be sold and the proceeds thereof be divided between himself and defendant.

Defendant contends that plaintiff is not entitled to partition and bases such contention upon two grounds: First, that the agreement that one co-tenant should have the exclusive possession and use of one portion of the building, and that the other should have the exclusive possession and use of another portion thereof, constituted a partition of the property voluntarily made by the parties themselves; second that, if the contract did not make a partition of the property, the right given to each party to...