Nelson's Heirs v. Clay's Heirs

• Decision Date: 05 April 1832
• Citation: 30 Ky. 138
• Parties: Nelson's Heirs v. Clay's Heirs.
• Court: Kentucky Court of Appeals

30 Ky. 138

Nelson's Heirs v. Clay's Heirs.

Court of Appeals of Kentucky.

April 5, 1832

Practice. Effect of Prior Decision. Rents and Profits. Improvements. Tenants in Common and Joint Tenants. Costs.

APPEAL FROM THE BOURBON CIRCUIT; JESSE BLEDSOE, JUDGE.

Brown and Bledsoe for appellants.

Crittenden for appellee.

Judge Nicholas did not sit.

OPINION

UNDERWOOD JUDGE

We approve of the principles upon which the lands in contest have been equally divided between the parties litigant. The controversy has assumed no new aspect, since it was decided by this court, which can authorize the assignment of more than half the lands to the appellants. But on this point, we regard the opinion of this court, heretofore delivered, as concluding the rights of the parties; and that in remanding the cause it was intended that nothing more should be done than to carry into effect the principles settled as applicable to their rights. See the case in 5 Litt., 250 where the points are sufficiently stated.

Principles settled when cause is remanded to inferior court to effectuate the opinions of the court of appeals conclude the parties.

Upon the return of the case the appellants, by a second amendment to the original bill, offered to bring into partition the settlement of 400 acres and to submit to a division according to the decision of this court. This fact constitutes a sufficient reason for disregarding those assignments of error which impeach the decree, because 600 acres of land were not allotted to the appellants.

The circuit court, by an interlocutory decree, directed an account to be taken of rents and profits and improvements. From the report of the commissioners it appears that the total value of the improvements made by the appellants, and those holding under them upon the lands allotted to the defendants, now appellees, which was regarded as safe, not being covered by any interfering adverse claim, amounted to $1,540; and that the rents, for the use of the improvements so made, amounted to $2,450 69 in value; thus showing an excess of rents of $910 69. The circuit court reduced this balance to $838 67, upon the ground that the commissioners had allowed rent upon a part of the lands improperly by computing the rent on some of the improvements, for time running before the appellants had notice of the claim of the ancestor of the appellees. The circuit court decreed that the appellants should pay the appellees the aforesaid sum of $838 67 on or before a given day in the ensuing term, and upon the payment being made that the appellees should convey the lands allotted to the appellants.

The appellants did not pay the money as required by the decree of the court. Thereupon the court dissolved the injunction and gave the heirs of Clay the benefit of the judgment in ejectment obtained against the appellants, and dismissed their bill without prejudice, decreeing costs against them. To reverse this decree the appellants prosecute an appeal.

We think that the chancellor should have regarded the appellant and appellees as tenants in common. It is true that the appellants had not the legal title, but then their right to it was established; and equity upon the establishment of a right, will regard the consequences resulting from it, and dispose of incidental matters, in the same manner as though the right to it was purely legal from the beginning. According to the doctrines of the common law, one tenant in common was not liable to his companion for waste or the profits of the estate; although he may have embezzled the profits or appropriated to himself the whole. The injustice of this doctrine was obviated in England by the statutes of Westminster, 2, 6, 22, and IV. Ann. c. 16; the first giving an action for waste, and the second an account for the profits. II. Com. 194. Bancon's Abr. title joint tenants and tenants in common, letter L. The provisions of the statutes of Ann were in substance adopted by an act of the colonial legislature of 1748. See note 19, Tucker's Blackstone, 194. This court, in the case of Coleman v Hutchmson, III. Bibb, 211, refer to an act of our parent state passed in 1784, which authorizes " actions of account in favor of one joint tenant, or tenant in common against another, as his bailee, for receiving more than his just share." It may, therefore be safely laid down as the law, that a joint tenant or tenant in common, who commits waste, or who receives more of the rents and profits than comes his share, (to be apportioned according to his interest in the estate,) is liable to his co-tenant for the waste or for the excess of rents and profits above his share under the statutory provisions aforesaid.

One joint tenant or tenant in common, is responsible to his co-tenant, for waste or for receiving more than his proportion of the rents and profits of the estate so held.

But when the estate at the commencement of the joint tenancy or tenancy in common, yields no rent or profit, and one of the tenants enters, and by improving the estate renders it productive, can the cotenant, who expends neither money nor labor, come in and claim a share of the profits? This seems to be the question in the present case. The record does not show that the appellees, or their ancestor, made any improvements upon the land; on the contrary, all the improvements appear to have been made by the appellants and those holding under them, or by persons who were not tenants and who paid no rents to the appellants. Under these circumstances, we do not perceive the principle upon which the appellees, or their ancestor, as a cotenant in common, can claim rents. It is clear that it could not be done at common law; nor is there any thing in the statute of IV. Ann. c. 16, or the...