Kerfoot v. Greenlee

• Decision Date: 12 September 1922
• Docket Number: Case Number: 11978
• Citation: 209 P. 444,87 Okla. 69,1922 OK 266
• Parties: KERFOOT v. GREENLEE et al.
• Court: Oklahoma Supreme Court

1922 OK 266

209 P. 444

87 Okla. 69

KERFOOT v. GREENLEE et al.

Case Number: 11978

Supreme Court of Oklahoma

Decided: September 12, 1922

Syllabus

¶0 1. Tenancy in Common--Equal Rights of Cotenants.

Each tenant in common is equally entitled to the use, benefit, and possession of the common property, the limitation of this right being that each is required to exercise this right so as not to interfere with the rights of his cotenant.

2. Same--Right to Dispose of Interest.

The interest of cotenants is purely personal--each is allowed to dispose of his interest as he sees proper. He may sell it or give it away, his cotenant not being concerned or interested in the consideration received.

3. Same.

A tenant in common owes no duty to his cotenant as to disposition of any portion of his interest, notwithstanding such disposal may prevent a partition in kind of the common property.

Error from Superior Court, Pottawatomie County; Leander G. Pitman, Judge.

Action by Julius Greenlee against Clarence W. Kerfoot and another to partition real estate. Judgment for plaintiff, and defendant named brings error. Affirmed.

Lydick & Arrington, for plaintiff in error.

Stanard & Ennis and Goode & Dierker, for defendants in error.

PITCHFORD, V. C. J.

¶1 The defendant in error Greenlee filed in the superior court of Pottawatomie county his petition for partition against the plaintiff in error, Clarence Kerfoot, and the defendant in error George B. Graf, alleging that each of the parties was entitled to an undivided one-third interest in certain lots, with the buildings thereon, in the city of Shawnee. The defendant Graf filed an answer, admitting the allegation of the plaintiff's petition. An answer was filed by the plaintiff in error denying that Graf had any right, title, or interest in the property sought to be partitioned. And further alleging that the defendant in error Greenlee was the owner of an undivided two-thirds interest in the property, and that plaintiff in error was the owner of an undivided one-third interest in the same; that, two or three days prior to the filing of the petition in the case, Greenlee had voluntarily, and without consideration, signed and delivered to Graf a deed purporting to convey an undivided one-third interest in the property; that Graf paid no consideration for the deed, it being the understanding and agreement between Greenlee and Graf that the latter was to take the deed and hold the same for the use and benefit of Greenlee; that the deed was executed solely for the purpose of giving Greenlee an excuse to file an action for partition; that Greenlee never intended to convey title to Graf, and the latter never intended to receive title to the property; that the deed was given solely for the purpose of defrauding the plaintiff in error, so as to prevent the partition of the property in kind.

¶2 Upon trial of the cause, the court rendered judgment, finding that each of the parties was entitled to an undivided one-third interest in the property. Commissioners were appointed to make partition, and in the event partition could not be made in kind, to appraise the same. The commission so appointed reported that the property could not be divided in kind, and appraised the value thereof at $ 9,000. Greenlee and the plaintiff in error offered to take the property at the appraised value, whereupon the court ordered the sheriff to make public sale of the property. Plaintiff in error appeals. Numerous errors are assigned for reversal of the judgment of the trial court; however,...