Thurston v. Holden

• Decision Date: 08 March 1928
• Docket Number: 4973
• Citation: 265 P. 697,45 Idaho 724
• Parties: JOHN S. THURSTON and LIZZIE THURSTON, Husband and Wife, Respondents, v. NORMAN E. HOLDEN, MABEL A. RIEGER, PATSY CRIGHTON, P. F. RIEGER, as Administrator of the Estate of MINNIE CRIGHTON, Deceased, and P. F. RIEGER, as Administrator of the Estate of FRANK CRIGHTON, Deceased, Appellants
• Court: Idaho Supreme Court

265 P. 697

45 Idaho 724

JOHN S. THURSTON and LIZZIE THURSTON, Husband and Wife, Respondents, v. NORMAN E. HOLDEN, MABEL A. RIEGER, PATSY CRIGHTON, P. F. RIEGER, as Administrator of the Estate of MINNIE CRIGHTON, Deceased, and P. F. RIEGER, as Administrator of the Estate of FRANK CRIGHTON, Deceased, Appellants

No. 4973

Supreme Court of Idaho

March 8, 1928

TENANCY IN COMMON-PAYMENT OF ENCUMBRANCES BY COTENANT-SUBROGATION - RIGHT TO CONTRIBUTION - EQUITABLE LIEN - ENFORCEMENT AGAINST DECEDENT'S PROPERTY-WAIVER-"CLAIM OR DEMAND" AGAINST ESTATE-WITNESSES.

1. Where owner of undivided one-third interest in business block deeded his interest therein to his wife, who died intestate leaving heirs, in suit by owners of undivided two-thirds interest for partition and for accounting to determine moneys due plaintiff for expenditures in payment of mortgage, taxes repairs and improvements, filing of claim against estate of deceased wife was not necessary.

2. When a cotenant pays off encumbrance or redeems from sale of common property, he is immediately subrogated to creditor's rights and acquires equitable lien on moiety of noncontributing cotenant, function of court declaring such lien being matter of determination, not of creation.

3. When a cotenant expends money in improvements and repairs of common property, he acquires an equitable lien on moiety of his noncontributing cotenant therefor.

4. Right of cotenant, paying off encumbrance or redeeming from sale or improving or repairing common property, to lien arises from right to contribution on principle that conscience requires equality among parties equally responsible for a common burden.

5. In action for partition by owner of undivided two-thirds interest in business block and for accounting to determine amount owing to plaintiffs for money expended in payment of mortgage, taxes, repairs and improvements and to have it declared a lien on defendant's moiety, where administrator of deceased owner was made a party defendant since plaintiff's lien for advancement was limited to the interest of his cotenant in the common estate, his right to a lien, under C. S., sec. 7588, against the property could be enforced, although recourse against other property of decedent estate was not expressly waived in the complaint.

6. Enforcement of an equitable lien against property of a decedent involves a "claim or demand" against the estate, within C. S., sec. 7936, prohibiting plaintiff in action against administrator of deceased person from testifying to fact occurring before decedent's death.

7. Where owner of one-third undivided interest in business block deeded interest to wife, who died intestate, leaving three children as heirs, in suit by owner of two-thirds interest for partition and for accounting to determine amounts due for moneys expended in payment of mortgage, taxes, repairs and improvements, testimony of plaintiff that he paid out moneys amounts and purpose thereof was inadmissible, under C. S., sec. 7936, as amended by Laws 1927, chap. 51, although testimony did not relate to transactions with deceased wife and part of transactions occurred before she acquired title.

APPEAL from the District Court of the Seventh Judicial District, for Payette County. Hon. Bertram S. Varian, Judge.

Action between cotenants for an accounting and partition. Judgment for plaintiffs. Reversed and remanded.

Reversed and remanded. Costs to appellants. Petition for rehearing denied.

George Donart, for Appellants.

A party to an action or proceeding prosecuted against an executor or administrator upon a claim or demand against the estate of a deceased person is incompetent to testify as a witness as to any matter of fact occurring before the death of such deceased person. (C. S., sec. 7936; Rice v. Rigley, 7 Idaho 115, 61 P. 290; Kilbourn v. Smith, 38 Idaho 646, 41 A. L. R. 1042, 224 P. 432; Coats v. Harris, 9 Idaho 458, 75 P. 243.)

No holder of any claim against an estate may maintain an action thereon, unless the claim is first presented to the executor or administrator, except in cases where an action is brought by the holder of a mortgage or lien to enforce the same against the property of the estate subject thereto where all recourse against any other property of the estate is expressly waived in the complaint. (C. S., sec. 7588; Flynn v. Driscoll, 38 Idaho 545, 223 P. 524; Bank of Sonoma County v. Charles, 86 Cal. 322, 24 P. 1019.)

Norris & Sutton and Rice & Bicknell, for Respondents.

When, as an incident to partition, plaintiff seeks an accounting and a declaration of a lien against the property of one or more of his cotenants for the removal of a lien or encumbrance, his right is founded upon the equitable doctrine of subrogation. (38 Cyc. 47, note 85; Willmon v. Koyer, 168 Cal. 369, 143 P. 694, L. R. A. 1915B, 961; Rich v. Smith, 26 Cal.App. 775, 148 P. 545; Wilson v. Linder, 21 Idaho 576, Ann. Cas. 1913E, 148, 123 P. 487, 42 L. R. A., N. S., 242; Titsworth v. Stout, 49 Ill. 78, 95 Am. Dec. 577; Hogan v. McMahon, 115 Md. 195, Ann. Cas. 19120, 1260, 80 A. 695.)

Subrogation is the substitution to the rights and remedies of an existing lien, and is not the creation of a lien. (Leavitt v. Canadian Pacific Ry. Co., 90 Me. 153, 37 A. 886, 38 L. R. A. 152; Dowdy v. Blake, 50 Ark. 205, 7 Am. St. 88, 6 S.W. 897.)

When, in an action in partition, an accounting is had and a lien declared to reimburse for taxes, mortgages or other encumbrances, the lien is impressed only on the property involved in the partition suit and is not a personal liability against any party thereto. (Wilson v. Linder, 21 Idaho 576, Ann. Cas. 1913E, 148, 123 P. 487, 42 L. R. A., N. S., 242; Willmon v. Koyer, supra.

A cotenant whose property is subject to a lien which has been removed by another cotenant is privileged to abandon his title and refuse to contribute the amount which would be required to redeem his interest. (7 R. C. L. 870, sec. 64; Duson v. Roos, 123 La. 835, 131 Am. St. 375, 49 So. 590; Watkins v. Eaton, 30 Me. 529, 50 Am. Dec. 637.)

An accounting in partition where an estate of a deceased person is a party defendant is not an action upon a claim or demand against the estate which requires presentation to the administrator. (C. S., sec. 7581; Fullerton v. Bailey, 17 Utah 85, 53 P. 1020; Cunningham v. Stoner, 10 Idaho 549, 79 P. 228; Martin v. Smith, 33 Idaho 692, 197 P. 823; Poulson v. Stanley, 122 Cal. 655, 55 P. 605.)

Actions upon claims or demands against an estate of a deceased person in which a party is disqualified to testify means claims that must be presented to the administrator of the estate. (C. S., secs. 7581, 7588, 7886, 7936, subd. 3.)

T. BAILEY LEE, J. Wm. E. LEE, C. J., and Budge, Givens and Taylor, JJ., concur.

OPINION

T. BAILEY LEE, J.

In the year 1903, plaintiffs, John S. and Lizzie Thurston, husband and wife, owned an undivided two-thirds interest in a certain business block in the town of Payette. The remaining moiety was owned by Frank Crighton, whose administrator is a party defendant. Thereafter on October 24, 1921, Frank Crighton deeded his interest to his wife, Minnie, who died intestate on May 27, 1923, leaving as heirs the spouse aforesaid and three children, apparently all of age. Plaintiffs brought this action, praying an accounting between plaintiffs and defendants to determine amounts due plaintiffs for money alleged to have been expended in payment of a mortgage, taxes, repairs and improvements; that such amounts be declared a lien upon defendants' moieties, and that partition of the common estate be had, if expedient, and, if not, that a sale of the premises be had and the proceeds divided according to the respective rights of the parties. The defendants named were the children aforesaid, the administrator of the deceased wife, Minnie, and the guardian of Frank Crighton who had become incompetent. The defendants joined issue, and after trial of the cause but before judgment was entered Frank Crighton died, and his administrator was substituted. The court found that plaintiffs were entitled to a lien for $ 3,535.32 over and above all credits due defendants, and ordered a partition. From the consequent decree, defendants have appealed. Aside from the insufficiencies of the evidence, there are chiefly assigned as errors the action of the court in permitting plaintiff, John S. Thurston, to testify to matters of fact occurring before the deaths of Minnie and Frank Crighton, and the entering of judgment when it had not appeared that any claim for the expenditures had been filed with the administrators.

As has already been noted, Frank Crighton was alive and represented throughout the trial. The filing of a claim against the estate of Minnie Crighton was not required. Plaintiffs were seeking purely equitable relief, the recognition and enforcement of a lien already imposed by equity in their favor to the amount of their expenditures necessarily and beneficially made. When a cotenant pays off an encumbrance or redeems from a sale of common property, he is immediately subrogated to the right of the creditor, and...