Porter v. Mooney

• Decision Date: 17 May 1917
• Docket Number: No. 9433.,9433.
• Citation: 64 Ind.App. 479,116 N.E. 60
• Parties: PORTER et al. v. MOONEY et al.
• Court: Indiana Appellate Court

64 Ind.App. 479

116 N.E. 60

PORTER et al.

v.MOONEY et al.

No. 9433.

Appellate Court of Indiana, Division No. 2.

May 17, 1917.

Appeal from Circuit Court, Hancock County; Earl Sample, Judge.

Action for partition and sale of land by Joanna Porter and others against John Mooney and others, in which John Mooney filed a cross-complaint claiming certain credits. From the judgment, plaintiffs appeal. Reversed, with instructions to sustain a motion for new trial, and for further proceedings in harmony with the opinion.Cook & Walker, of Greenfield, and Koons & Koons, of Muncie, for appellants. Arthur C. Van Duyn, Robert F. Reeves, and Tindall & Tindall, all of Greenfield, for appellees.

CALDWELL, J.

Appellants brought this action against appellees for the partition and sale, as indivisible, of two tracts of land in Hancock county, containing 30 and 52 acres, respectively, of which Patrick Mooney died seised in 1886. His widow, Bridget Mooney, died in 1913. Appellants Joanna Porter and Martin and Thomas Mooney and appellees John and Mary Mooney are their children. Appellants Cecil and Harry Kelsch are their grandchildren.

It is conceded that each child is the owner of an undivided one-sixth, and each of said grandchildren of an undivided one-twelfth, in value, of the lands involved, subject to the settlement of Bridget Mooney's estate. It is conceded, also, that in the distribution of the proceeds arising from the sale of the lands John Mooney, as occupying tenant, should be charged with certain rents and profits received and appropriated by him, and that he should be credited on account of sums paid by him to improve the real estate and in the discharging of liens. The parties differ radically, however, respecting the method that should be adopted, and the equitable principles that should be applied, in arriving at the respective amounts of such charges and credits.

The parties by their respective pleadings agree that the real estate cannot be partitioned in kind without injury, and that it should be sold under order of court and the proceeds distributed. Preliminary to such sale and distribution, appellants by their complaint ask that an accounting be had as against John Mooney, and that the court determine the amount with which he should be charged on account of rents and profits received, and that such amount be considered on distribution.

John Mooney filed a cross-complaint, wherein he alleges that he has paid out $1,781.39 to discharge a mortgage placed on the 52-acre tract by Patrick Mooney to secure a balance of purchase money, and that he has paid taxes on all the lands involved, aggregating $1,328.22. He alleges, also, that with the full knowledge and consent of all the owners he has expended certain sums in the necessary improvement of the lands, whereby their value is enhanced to the extent of $7,000, the sums expended being as follows: New buildings, $1,375; painting buildings, $140; fire insurance, $100; lightning rods on buildings, $45; clearing lands to prepare them for cultivation, $400; ditching and assessments paid on public ditches, $785; fencing $450; water well, $125. He asks that the amount with which he should be credited on account of liens discharged and improvements made be ascertained, and that such amount be considered in directing a distribution.

Appellants answered John Mooney's cross-complaint in substance that he had discharged such liens and paid the expenses of such improvements from funds derived exclusively from the rents and profits of the lands, and from timber sold therefrom, and that there was a surplus over with which he should be charged on distribution. John Mooney, as administrator of the estate of Bridget Mooney, deceased, widow of Patrick Mooney, was named as a defendant to the complaint and to said cross-complaint. As such administrator he is also an appellee. In such capacity he filed a cross-complaint, alleging among other things, that Bridget Mooney's estate was in process of settlement, and that there were unpaid claims. He asks that, of the money derived from the sale of the lands, the amount representing the interest therein owned by Bridget Mooney at the time of her decease be paid to him as administrator, for purposes of completing the settlement of her estate. Proper answers and replies were filed and the cause placed at issue.

A trial by the court resulted in a general finding and decree that the parties were the owners of the lands in the shares above indicated, and that such lands should be sold by a commissioner and the proceeds distributed. On account of rents and profits received, liens discharged, and improvements made, the court found in favor of John Mooney a net credit of $2,886, one-third of which he charged against the interest represented by the estate of Bridget Mooney, and the other two-thirds of which the court distributed against the shares of the parties, as the court deemed the equities of the situation required. The one-third of the proceeds subject to such charges the court ordered paid to John Mooney, as administrator, and the balance thereof, subject to charges, to the owners.

In order that we may determine whether the decree is grounded on error, as asserted by appellants, a general statement of the facts is essential. After the death of Patrick Mooney in 1886, the family living at home consisted of the widow, Martin Mooney, aged about 16, John Mooney, aged about 21, and Joanna and Mary, each older than John. Thomas Mooney and Margaret Kelsch, the mother of Cecil and Harry, were married and lived elsewhere. Neither John nor Mary ever married. They have continued to live on the farm. Joanna married in about 3 years after the decease of her father, and since that time has lived elsewhere. Martin left the farm in about 6 years, and subsequently married. Shortly before Martin left the farm, Harry Kelsch, then a lad about 7 years old, became a member of the family, his mother having died. He remained until he was about 20 years old. The other co-owners lived near the lands during the time when liens were being discharged and improvements made, and frequently visited there, and had knowledge of what was being done. The two tracts of land owned by Patrick Mooney at the time of his death do not join. They are about a mile apart. On each tract were buildings of but little value. The fencing was in poor condition. A considerable portion of the land, and especially the 52-acre tract, was uncleared. Much of it needed drainage. Patrick Mooney bought the 52-acre tract the year before he died, and, as we have said, a part of the purchase money, represented by a mortgage, was unpaid. The members of the family living at home went to work to pay off the mortgage. Apparently by common consent, John, as the oldest son living at home, became manager of the farming and business operations. The widow, assisted by the two daughters while Joanna remained at home, and thereafter by Mary, by the sale of eggs, chickens, and butter, paid for all articles required to be purchased for the table, and in addition provided much of the clothing for the members of the family. John, assisted by Martin and Harry Kelsch while they were living in the family, did the farm work. Martin attended the public schools in winter for a year or two, and thereafter attended a secondary school for a while. He taught school two winters before he left home. Harry Kelsch also attended the public schools, and at times worked in factories. All profits of the farm proper were received by John from the time of his father's death until the time of the trial. He used such profits, first in discharging the mortgage, paying taxes, etc., and thereafter made improvements from time to time, as alleged in his cross-complaint. At times he leased portions of the lands to others for cultivation, collecting and receiving the landlord's share of the crops. Substantially all, if not all, of the money expended by him in discharging the lands from liens and in making improvements came from the farm. His own labor and that of Martin and Harry also entered into a part of such improvements. By such a course, in which all the members of the family living at home interested themselves, liens were discharged, valuable improvements were made, and the lands placed in a high state of cultivation. The members of the family living elsewhere received practically nothing from the farm. Twenty dollars was advanced to Cecil and $100 to Joanna at one time. The family accomplished so much that it is to be regretted that they did not succeed in adjusting their accounts without recourse to the courts.

[1][2] The widow, while living, was the owner of an undivided one-third of the lands. She was therefore entitled to one-third of the rents and profits, and was equitably chargeable with one-third of the taxes and expenses of legitimate improvements. The mortgage, although given for purchase money, was primarily a charge against the undivided two-thirds of the land. Sections 3014 and 3033, Burns 1914; Garretson v. Garretson, 43 Ind. App. 688, 88 N. E. 624;Home National Bank v. People's State Bank, 49 Ind. App. 13, 96 N. E. 710. It is therefore apparent that technical accuracy would require that a somewhat different course be pursued in adjusting the equities involving the widow's interest from what should be followed in determining the rights and liabilitiesof the children and said grandchildren in their relation to John Mooney, arising out of transactions had after the decease of Patrick Mooney. However, the farm was managed during the widow's lifetime in the same manner as thereafter; John Mooney receiving the profits and paying the taxes and expense of improvements. If, out of the manner of conducting the farming enterprise, there existed at the decease of the widow a claim in her favor as against John Mooney, or a charge against her in his favor, of a nature such as that it might have been adjusted in a...