Johnson v. Pelot
| Decision Date | 24 February 1886 |
| Citation | 24 S.C. 255 |
| Parties | JOHNSON v. PELOT. |
| Court | South Carolina Supreme Court |
1. In an action for partition, an order referring the case to the master " to state the account of the defendant for the receipts of rents and profits of said lot of land for a period commencing six years prior to the commencement of this suit and extending up to the date of his report, together with all improvements thereon," was an order of inquiry only, and did not fix any liability upon defendant for the rent of houses on the premises.
2. Where a co-tenant in the bona fide belief that she is sole owner, erects improvements upon a vacant lot, she is not liable for the rents received from such improvements before demand made, nor for any ground rent of the otherwise profitless lot.
3. The whole lot being divided between the plaintiff and defendant allotting to plaintiff one-half in area and value, on which stood a house erected by defendant in good faith under a belief of exclusive ownership in herself, and allotting to defendant the other half on which stood a house, also erected by herself, and an old kitchen, the plaintiff is liable to account for the value of the house on his half, and the defendant for the half value of the kitchen.
4. This being an equity case, costs were in the discretion of the Circuit Judge.
5. A co-tenant, who in the bona fide belief of exclusive ownership, improves the common property, should be allowed the benefit of his improvements in the final division or sale of the property; and this right does not depend upon the mode of enforcing it, adopted in other cases.
6. Petition for rehearing refused.
Before KERSHAW, J., Richland, July, 1885.
This was an appeal from the following Circuit decree:
The report makes no recommendations, but simply stated the accounts, the master therein obeying the order of reference and supplying the facts necessary to a decree by the court.
As to the exceptions, I think they are not well taken. The decree did not commit the valuation of the improvements to the commissioners, but distinctly referred it to the master. The valuation made by the commissioners was no more than an expression of opinion on their part by individuals, and in no way binding upon any one. The master proceeded properly to take the testimony of witnesses, and to decide upon such testimony.
The second exception is not well taken, because the decree directed the accounts to be taken of " the receipt of rents and profits," and not for the use and occupation of the premises, the presiding judge no doubt holding that the defendant was not actually in possession of more than her share of the premises, and that she ought not to be charged for the use of a house erected at her own cost.
The exceptions must therefore be overruled, and the report confirmed.
It remains to consider and determine the rights of the parties in relation to the improvements, and the rents and profits. And first the question arises whether the decree has already determined that the defendant is chargeable with her receipts of rents and profits, and to be allowed for her improvements. The decree has determined nothing upon those questions, but very properly referred the subject to the master to state the accounts, in order that when the question came before the court for determination, a full and complete decision might be made. The partition of the land alone was committed to the commissioners, and these questions were reserved for consideration at a future period.
I will therefore proceed to determine these questions, and first as to the plaintiff's right to the rents and profits claimed. Defendant held the premises as her own, believing herself entitled to the same as her own and exclusive property, without any knowledge or notice of the plaintiff's rights therein, and under such circumstances as were well calculated to induce such belief, she was entirely innocent, and held bona fide . When the possession of the defendant commenced, there was no building upon the lot but the " old kitchen." All other improvements thereon were made by the defendant. All the rents received, except from the old kitchen, were due to those improvements.
A tenant in common is not chargeable for rents and profits derived from improvements made by himself, " when he had reason to believe, and did honestly believe, that he had fee simple title in severalty to the land so improved." " In such cases the tenant will be allowed compensation; and if practicable, in partition, the part of the land so improved will be assigned to the tenant who made the improvements, without charging him with the value of said improvements; that is to say, the partition will be made without reference to the improvements." This is the language of the court in the latest case on the subject; Buck v. Martin , 21 S.C. 592; citing Williman v. Holmes , 4 Rich. Eq. , 476; Scaife v. Thomson , 15 S.C. 337; Annely v. DeSaussure , 17 Id. , 391; Johnson v. Harrelson , 18 Id. , 604.
In the case cited, it was ordered that the commissioners should assign, if practicable, to the improving tenant the portion improved without charging her for the value of the improvements, or if the land be sold, that the amount added to the value of the land by the improvements be allowed her out of the proceeds of sale before an equal division of the same. In that case the co- tenants had concurred, some being minors, in permitting the improvements, but the court applied to the case the same principle applicable to the cases of tenants who bona fide believe themselves the sole owners of the land; that principle is stated as follows in 1 Story Eq. Jur. , § 655: " When improvements have been erected by a co-tenant, which add value to the common estate, and erected under circumstances which would make it a great and obvious hardship upon the improving tenant to deprive him entirely of the benefit of such improvements, throwing their whole value into the common estate for partition, the disposition of the Court of Equity has always been to give the improving tenant the benefit of them, so far as consistent with the equity of the co-tenants."
If this manifest equity of an improving tenant is so strong as to entitle him to the whole value of his improvements, surely it will protect him from accountability for the rents and profits received by him, due wholly to such improvements. But we are not left to this analogy, but have authority on the very point in Lewis v. Price ( ), where it was said by the court, " Rent is not allowable for premises which the tenant has rendered capable of yielding rent, which they could not before; and that by parity of reasoning the tenant is not chargeable for so much of the rent of the premises as his improvements have contributed to produce."
It follows, from these authorities, that the defendant is accountable for neither the value of the improvements made by herself, not for rents received by her, which were due to the improvements made by herself. The kitchen was on the premises when the tenant went into possession. She must account for the rent received on it, but such accounting ought not to extend further than to the receipts on that account, accruing since the demand of the plaintiff to be admitted to her share of the common estate. Until that time there was no ouster , and therefore no right to share in the rents received.
The commissioners appear to have considered the parcels of land divided to be of equal value without the improvements, which they value separately. They allotted to the defendant that portion upon which the kitchen was situated, and to the plaintiff that portion upon which was the work-shop erected by the defendant. The former (the kitchen) is valued by the master at one hundred dollars, and the work-shop at two hundred dollars. The defendant must pay to the plaintiff the half of the value of the kitchen, while she is entitled to the whole value of the work-shop. Setting off the one against the other, the plaintiff must pay one hundred and fifty dollars to the defendant for equality in respect of the improvements. But the defendant must account to the plaintiff for the one-half of the rent of the kitchen from the time of the commencement of this action, and will be allowed credit for so much of the taxes as she has paid since the same date, as is chargeable, to wit, one-half of the tax upon the land and the kitchen, without regard to the other improvements.
It is therefore ordered and adjudged, that it be referred to the master to adjust the accounts between the parties upon the principles and in the manner herein set forth and determined, and to report the same to this court; and that in all other respects the report of the master, hereinbefore made, be confirmed, and the exceptions thereto be overruled; that the return of the commissioners in partition, in so far as concerns the allotment made by them of their respective moieties of the said lot of land to the parties, be confirmed, and that they be vested respectively in the said parties in severalty, and that they be let into possession of the same accordingly; subject, however, to the result of the accounting herein provided for, and the payment of any assessment that may be made thereon by the court in pursuance thereof; that each party pay one-half of the costs of this action.
Messrs. Lyles & Haynsworth , for plaintiff.
Mr. S.W. Melton , contra.
The purpose of the action below was to partition certain real estate situate in the city of Columbia, and in possession of the defendant, in which plaintiff claimed a moiety. The plaintiff's title being disputed, this question was submitted to a jury, who found for the...
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