Mahon v. Mahon, 50918

• Decision Date: 09 April 1963
• Docket Number: No. 50918,50918
• Citation: 254 Iowa 1349,121 N.W.2d 103
• Parties: Roberta Nelson MAHON, Appellee, v. Harry E. MAHON, Merle Nelson, Robert M. Nelson, as Guardian of Merle E. Nelson, Incompetent, Federal Land Bank of Omaha, and Van Buren County, Iowa, Defendants, Merle E. Nelson, Appellant.
• Court: Iowa Supreme Court

Page 103

121 N.W.2d 103

254 Iowa 1349

Roberta Nelson MAHON, Appellee, v. Harry E. MAHON, Merle Nelson, Robert M. Nelson, as Guardian of Merle E. Nelson, Incompetent, Federal Land Bank of Omaha, and Van Buren County, Iowa, Defendants, Merle E. Nelson, Appellant.

No. 50918.

Supreme Court of Iowa.

April 9, 1963.

Loren M. Hullinger, Sr., Margaret L. Beckley and Jay C. Beckley, Cedar Rapids, and D. W. Harris, Bloomfield, for appellant.

Bailey C. Webber, Ottumwa, for appellee.

GARFIELD, Chief Justice.

This is an action in equity for partition by sale of a 250-acre farm in Van Buren county of which plaintiff Roberta Nelson Mahon owns a one-third interest and defendant Merle E. Nelson, plaintiff's divorced husband, the remaining two-thirds interest. The trial court held, following trial, plaintiff was entitled to be reimbursed for $3750 as enhanced value of the realty by reason of improvements placed upon it by her during her occupancy. Defendant Merle E. Nelson has appealed. His sole complaint is against the above allowance.

January 19, 1949, plaintiff was granted a divorce from appellant, care and custody of their five minor children, and a one-third interest in the 250-acre farm subject to one third the indebtedness thereon. The divorce decree provides that for the support of the children plaintiff 'is hereby awarded the use of all of the above described real estate for as long as she supports them and until the youngest child becomes 18 years of age, subject, however, to the payment of taxes, ordinary repairs and interest on mortgage indebtedness. * * * It is further provided that no partition action shall be brought upon said lands nor shall any decree of partition be entered until all of said children shall have attained the age of 18 years * * *. Plaintiff is given permission to remarry whenever she sees fit.'

The youngest child became 18 June 2, 1959. This action was commenced the following day. Plaintiff and defendant Harry E. Mahon were married March 12, 1949, and lived on the farm with the five children and one subsequently born to plaintiff and Mahon. It is not claimed plaintiff did not support the children, pay the taxes, ordinary repairs and interest on the mortgage debt. Plaintiff was guardian of the person and property of appellant from the time of the divorce until 1956 or 1957. Her oldest son then succeeded her as guardian until sometime in 1959. During this period of ten years from 1949 to 1959 appellant was a patient at the state mental health institute at Mt. Pleasant. He was discharged, however, as recovered March 28, 1959.

While plaintiff was guardian for appellant she applied for and received court authority to make some improvements on the farm. Appellant is not here claiming his share should not be charged with two-thirds of the cost of improvements so authorized.

I. The first contention appellant makes is that plaintiff occupied the position of a life tenant rather than a tenant in common and as such, it is said, cannot charge him, as a remainderman, with repairs or improvements. Appellant also challenges the sufficiency of the evidence to show any improvements erected by plaintiff enhanced the value of the farm. It is also contended the improvements in question were not made in good faith.

We have no doubt plaintiff is entitled to receive, out of the proceeds of sale of the land, any enhancement in value thereof at the time of the partition by reason of improvements she put upon the land in good faith during her occupancy.

Plaintiff and appellant were coowners or tenants in common of the farm. Plaintiff had the right to occupy it for a period of about ten years on condition she support the children, pay the taxes, ordinary repairs and interest on the mortgage indebtedness.

Before any allowance to plaintiff for improvements might properly be made they must add to the value of the property at the time of the partition. The improvements must not be foolish or improvident or merely to meet the whim or caprice of the improver. The right to compensation and the extent thereof are determined by the resulting enhancement in value of the property. The original cost of the improvements is not a controlling factor in making a proper compensatory award to the improver since it does not correctly measure the increase in value of the property, because thereof, at the time of the partition. Indra v. Wiggins, 238 Iowa 728, 738-739, 28 N.W.2d 485, 489-490; Anno. 1 A.L.R. 1189, 1210.

It is true the improvements must be made in good faith. But this means only that they must be made honestly for the purpose of improving the property and not to embarrass the cotenants, encumber their estate or hinder partition. The fact the tenant making the improvements knows an undivided share in the land is held by another is no bar to relief. Indra v. Wiggins, supra.

It is not a condition to an allowance, in such an action as this, for enhancement in value because of improvements constructed by a cotenant that the other cotenants knew of the improvements or consented thereto. Indra v. Wiggins, supra, 238 Iowa 728, 740-741, 28 N.W.2d 485, 491; Anno. 1 A.L.R. 1189, 1201.

The reason for the rule is that when improvements built by a cotenant enhance the value of the common estate and the cotenants are not injured in any way, or hindered from having partition, they should not be permitted to take advantage of the improvements, to which they contributed nothing. In theory the cotenants receive as much of the proceeds from the sale as they would if the improvements had not been built. Indra v. Wiggins, supra, 238 Iowa 728, 738, 28 N.W.2d 485, 489; Nelson v. Pratt, 212 Iowa 441, 445-446, 230 N.W. 324, 236 N.W. 386; Killmer v. Wuchner, 79 Iowa 722, 725, 45 N.W. 299, 300, 8 L.R.A. 289, 18 Am.St.Rep. 392; Anno. 1 A.L.R. 1189, 1206.

The present case is quite like Nelson v. Pratt, supra. Plaintiff and defendant there were co-owners of a farm subject to their mother's life estate. While occupying the farm under an arrangement with his mother defendant expended several thousand dollars on improvements which added more than $5000 to the value of the farm at the time of the trial. We approved an allowance to defendant of such amount out of the proceeds of the sale. This from the opinion states the applicable rule (pages 443-444 of 212 Iowa, page 325 of 230 N.W.):

'* * * If it appear in a partition case that one of the cotenants has in good faith built beneficial improvements upon the common property, that fact will receive the consideration of the court as an existing equity. A protection thereto will be afforded in the decree as far as it can be done without prejudice to the other cotenant. This is a general principle of equity which has been frequently applied in this court * * *. One recognized method of protection is to include the improvements in...