McIntire v. Midwest Theatres Co., 12768.

• Citation: 298 P. 959,88 Colo. 559
• Decision Date: 13 April 1931
• Docket Number: 12768.
• Parties: McINTIRE v. MIDWEST THEATRES CO.
• Court: Supreme Court of Colorado

298 P. 959

88 Colo. 559

McINTIRE v. MIDWEST THEATRES CO.

No. 12768.

Supreme Court of Colorado

April 13, 1931

Rehearing Denied May 4, 1931.

In Department.

Error to District Court, Logan County; Alfred W. Dulweber, Judge.

Action for partition by the Midwest Theatres Company, a common-law organization, operating under a declaration of trust, against Charles McIntire. To review judgment for plaintiff, defendant brings error.

Reversed and remanded, with directions.

Grant Ellis, Shafroth & Toll and C. Russell Shetterly, all of Denver, for plaintiff in error.

Frederick Sass, of Denver, for defendant in error.

BURKE J.

Plaintiff in error is hereinafter referred to as McIntire and defendant in error as the company. This action was brought by the latter to partition property of which the parties are tenants in common.

In May 1922, McIntire and one Gill owned theater property in Sterling. They executed a ten-year lease thereon. In 1924 the company bought the interest of Gill and, by the consent of McIntire, became the owner of said lease, and the latter's monthly rent was reduced from $300 to $265. In consideration of these concessions, and by the writing granting them, the rent was secured by a mortgage on the property, and it was further stipulated that a failure to pay promptly should abrogate the contract and restore the former rate. The parties were unable to agree upon future plans, and this action resulted. The cause was tried to the court, and findings and judgment were for the company. The decree protected McIntire in his rent in the event he bought at the sale, but not otherwise. To review that judgment he sues out this writ and asks that it be made a supersedeas. The parties request final disposition on this application.

Counsel for McIntire say that the company is, by its 1924 contract, estopped to demand partition, and that the court was without power to enter such a decree. On the first proposition they cite 47 C.J. §§ 130 to 132, p. 321, and on the second the same volume, section 532, p. 482, and section 932, p. 613. They further insist that partition is, under the circumstances here disclosed, contrary to equity and good conscience.

The company stands upon the general rule that a tenant in common is entitled to partition, says the answer is a plea in abatement until the expiration of the lease, and cites section 5149, C. L. 1921, prohibiting that plea in a partition suit.

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