Peden v. Cavins

• Decision Date: 11 May 1893
• Docket Number: 16,238
• Citation: 34 N.E. 7,134 Ind. 494
• Parties: Peden v. Cavins et al
• Court: Indiana Supreme Court

34 N.E. 7

134 Ind. 494

Peden v. Cavins et al

No. 16,238

Supreme Court of Indiana

May 11, 1893

From the Daviess Circuit Court.

Judgment affirmed.

W. R Gardiner and S. H. Taylor, for appellant.

W. W Moffett and C. E. Davis, for appellees.

OPINION

Olds, J.

This is a suit for the partition of certain real estate situate in Greene county, Indiana. The suit was instituted in the Greene Circuit Court and the venue afterwards changed to the Daviess Circuit Court, where there was a trial by the court, a special finding of facts and conclusions of law stated, and judgment rendered in favor of the appellees, from which judgment this appeal is prosecuted.

The complaint is, in form, an ordinary complaint in partition.

It appears that one Hughes East and wife conveyed all of the lands to the appellant in 1866, and put the appellant in possession of the same. In 1883, one Rebecca East asserted her ownership in the undivided one-half of the land, and at that time prosecuted an action in ejectment against the appellant, and recovered a judgment in said cause, establishing her title to the one-half of the land and for $ 460 damages, which appellant paid. Afterwards, Rebecca East and her husband conveyed her one-half interest in the land to the appellees, Aden G., Elijah, and William Cavins, who instituted this suit against the appellant for partition.

Exceptions were taken to various rulings of the court which were properly reserved and assigned as error, and which are discussed by counsel.

The second paragraph of answer to the complaint is the twenty years' statute of limitation, and the third paragraph pleads the fifteen years' statute of limitation.

These two paragraphs of answer are each a general plea of the statute of limitation.

The third paragraph of reply to these two paragraphs of answer pleaded the judgment in the ejectment case of Rebecca East.

To this paragraph of reply the appellant demurred, and the court overruled the demurrer, and this ruling is the first alleged error discussed.

The twenty years' statute of limitation is not applicable to an action in partition. McCray v. Humes, 116 Ind. 103, 18 N.E. 500.

Indeed, neither of the paragraphs of answer was good as pleaded. It has been held that the fifteen years' statute of limitation was applicable to a partition suit in the case above cited. When one cotenant holds possession to the exclusion of the others claiming to own the whole, and holding it adversely to the other cotenants, then an action for partition by a cotenant would be barred, but when cotenants own land and neither holds possession adversely to the others, the fact that they hold the lands as tenants in common for more than fifteen years does not bar the right of either to partition, though they may have enforced that right at any time from the date when they so became tenants in common in the land. To make a plea of the statute of fifteen years a good defense to a suit for partition it must show a holding adversely for fifteen years.

The answer in McCray v. Humes, supra, showed a holding adversely, under claim of title, for fifteen years, and the holding in that case was correct. To the same effect is the holding in the case of Nutter v. Hawkins, 93 Ind. 260.

It would be an anomalous doctrine to hold that when, as in this case, a tenancy had run over fifteen years, and that after one tenant had prosecuted an action in ejectment against his cotenant and established his title to the land, he could not then maintain an action in partition and have his portion of the land set apart to him.

In Jenkins v. Dalton, 27 Ind. 78, it was held that a failure to assert the right for partition for a period of twenty years will not bar an action for partition. The court, in speaking of the partition of lands, says: "In such a case, the right to the partition exists from the date of the tenancy. It may or may not be exercised, in the discretion of the tenants. All the tenants have an equal right to possession, and may all be satisfied to enjoy the estate in common. Partition may not be desired by any one or more of the tenants for a period of time greater than that prescribed by any statute of limitation; and the fact that such a period is suffered to elapse, does not in any manner affect the right of one or more of the tenants to have partition." Freeman on Cotenancy, section 491.

There was no error in overruling the demurrer to this paragraph of reply. A bad reply is good to a bad answer, so whether it is sufficient for a good answer or not, it was not error to overrule a demurrer to it, as the answers were bad.

The appellant filed a cross-complaint, alleging that he had been the owner of one-half of the land for twenty-five years; that he had made valuable and lasting improvements thereon, paid taxes on all the land, aggregating $ 1,000.

The appellees answered the cross-complaint, and in the fourth paragraph of the answer alleged that appellant had been in possession as tenant in common with their grantor long before he made the improvements, and had received the rents and profits for all the land, amounting to $ 3,000, one-half of which belonged to the cotenant, and had received and converted to his own use walnut trees and other valuable timber growing thereon, of the value of $ 500, which sums they asked to have taken into account and set off as against any sum allowed appellant on his claim for improvements and taxes. To which fourth paragraph of answer appellant demurred, and the demurrer was overruled, and this ruling is the next alleged error discussed.

Freeman on Cotenancy, section 510, lays down this doctrine:

"As the allowance of compensation for improvements is, in all cases, made, not as a matter of legal right, but purely from the desire of the court to do justice, the compensation will be estimated so as to inflict no injury on the cotenant against whom the improvements are charged. He will therefore be charged, not with the price of the improvements, but only with his proportion of the amount which at the time of partition they add to the value of the premises. From this amount he will also be entitled to deduct any sum to which he may have a just claim for use and occupation of his moiety enjoyed by the cotenant making the improvements."

In Alleman v. Hawley, 117 Ind. 532, 20 N.E. 441 (538), this court says: "The appellant's right to compensation for her improvements is not a legal right, depending upon a statute, but is a right resting upon equitable principles, and one which a court of equity will enforce."

The cross-complaint pleaded a state of facts in...