Ward v. Heirs

• Decision Date: 13 April 1895
• Citation: 21 S.E. 746,40 W.Va. 611
• Parties: WARD. v. WARD'S HEIRS.
• Court: West Virginia Supreme Court

21 S.E. 746

40 W.Va. 611

WARD.

v.WARD'S HEIRS.

Supreme Court of Appeals of West Virginia.

April 13, 1895.

Tenancy in Common—Partition—Improvements —Commissioner's Report—Exceptions —Amending Report.

1. By common law, one joint tenant, tenant in common, or parcener using the common land exclusively, but not ousting or excluding his co-owners, is not chargeable to them for use and occupation; but this rule has been changed by section 14, c. 100, Code, as to joint tenants and tenants in common, but not as to parceners.

2. A coparcener, merely from sole occupation of the premises, is not chargeable in favor of coparceners, unless he excludes them.

3. Where it is proper to allow a coparcener for improvements a charge for use and occupation may be set off against the improvements.

4. Permanent improvements made by one coparcener, without request or agreement of others, are not chargeable to the others personally or upon their shares in the land; but, if made by their request or agreement, they are a debt upon them, and a lien on their shares in the land.

5. One joint tenant, tenant in common, or coparcener can compel others to contribute to make necessary repairs to a mill or house, after request to assist and refusal. But this compulsion is as to future repairs, not those already made by one of the co-owners. This compulsion only applies to mills and houses, not to fences or other repairs to other properties.

6. In partition the part improved, if it can be done without injury to others, should be assigned to the improver; but, where this cannot be done, the cost of improvement cannot be charged to him to whom it goes.

7. Where, however, the property is not susceptible of partition, and must be sold to divide the proceeds, the coparcener who made repairs and permanent improvements shall receive outof the proceeds that amount by which the property, at the date of sale, remains enhanced in value from the improvements, not their original cost.

8. Where there is no exception to a commissioner's report, except as to error on its face, it is taken as admitted by the parties to be correct, both as to the principles and the evidence on which it rests, and the court will not look into it, but must act on it as so admitted, except as to infants and persons non compos. If excepted to not later than the first term after its return, or later by leave of court, the admission of its correctness ceases, and the court will examine it; but on the hearing of such exception, unless taken within 10 days after completion of the report before the commissioner, no evidence before him can be used, unless he has made it a part of the report, or certified it, or the court requires him to certify such evidence by order, in which cases it may be used to sustain the exception; but depositions taken after the return of the report cannot be used to overthrow the report. They can be used only to support a motion to recommit the report.

9. Error on the face of a report may be taken advantage of in the lower or appellate court, with or without exceptions.

10. Where exception is taken to a commissioner's report before the commissioner, within 10 days after its completion, it is his duty to certify the exceptions and evidence before him relating to the exceptions, with such remarks as he may see proper to make, in order that the exeeptions may be heard by the court upon such evidence. He should so certify the evidence as to show it to be the evidence sent up.

11. Where such exception has been so taken within the 10 days, the party excepting, or the adverse party, may take further evidence before the return of the report, and upon it the commissioner may amend his report, or make an amended report, as may suit the case, and then return his report and amendment, if any, to the office of the court.

(Syllabus by the Court)

Appeal from circuit court, Taylor county.

Bill by La Fayette E. Ward against Maria E. Ward's heirs. From the decree rendered, plaintiff appeals. Modified.

W. R. D. Dent, for appellant.

B. F. Martin and Frank Woods, for appellees.

BRANNON, J. Maria Ward died seised of an hotel property known as the "Ward House, " in the town of Grafton, leaving a husband and six children. Her husband, George W. Ward, occupied the property as tenant by the curtesy from February, 1878, when his wife died, until December, 1880, when he died. Four of his children lived in the hotel with him, the plaintiff, L. E. Ward, John B. Ward, Mrs. Broyles, and Archibald Ward. Before the father's death, and for 11 years afterwards, the plaintiff, L. E. Ward, occupied a stable on the property as a livery stable, and after his death Mrs. Broyles and husband occupied the hotel. Mrs. Broyles, by purchase from coparceners at different times after her father's death, became owner, including her own share, of five-sixths of the property. L. E. Ward brought this suit in the circuit court of Taylor county, alleging that in 1879 he and several others of the parceners, seeing that the property was badly in need of repair, almost entirely rebuilt and greatly enlarged the hotel, at great expense, he furnishing a large amount of means, labor and material, of the amount of $1,538.26, and that Archibald F. Ward and Lloyd M. Broyles, for his wife, furnished material and labor, for which amount expended by him he claimed compensation. He further alleged that for several years Broyles and his wife had the possession and use of the hotel property, except the stable, without payment of rent, but had paid taxes, and put some repairs on the property from time to time as needed, and that he, the plaintiff, had occupied the stable without payment of rent. He prayed that an account of the rent and improvements be taken; the amount due him and others be decreed; that the property be rented or sold to satisfy those charges; and also that the property, not being susceptible of partition, might be sold, and the proceeds divided. The other parties resisted this demand of the plaintiff for improvements, saying that such improvements were made by their father while in possession as tenant by the curtesy, and any charge by the plaintiff was against him, not against his coparceners, as they never assented to such improvements, and neither they nor their property were liable therefor. The case was referred to a commissioner, and he reported a large sum as due the plaintiff from Mrs. Broyles, one of the parceners, for rent and improvements. The court disallowed all claim by the plaintiff for improvements or rent, and, declaring the property insusceptible of partition, directed its sale. The plaintiff appealed.

First, let us consider the subject of rent. Are those of the heirs who occupied the property after the end of the father's estate by the curtesy liable to pay rent, or rather compensation for use and occupation? At common law neither a joint tenant, tenant in common, nor coparcener occupying the common property, and thus taking more than his share of the rents and profits, can be made to account to his fellows, unless he has been appointed bailiff or receiver by his fellows. Each one has right to enter and use the land, and this right cannot be impaired by the fact that others absent themselves or do not claim their right to a common enjoyment. Unless the one in possession denies the right of the others to enter and enjoy the estate, or agrees to pay rent nothing can be claimed of him. It is presumed that the others consent to his use. He cannot call on the others to help him farm or otherwise use the property, and, in case of loss from failure of crops or other cause, he cannot call on the others to contribute to the loss. If the others do not wish to occupy the premises with their co-owners, the remedy of partition is at hand, or, if the property be indivisible, the court will sell it and divide its proceeds. Lomax, Dig. 501, 481; 2 Minor, Inst. 437, 429; Freem. Coten. § 269; note to Early v. Friend, 78 Am. Dec. 665. This is the view stated in Freem. Coten. § 258; Gayle v. Johnston, 80 Ala. 395.

By section 14, c. 100, Code, it is provided that an action of account may be maintained "by one joint tenant, or tenant in common, or his personal representative, against the other for receiving more than comes to his just share or proportion, and against the personal representative of any such joint tenant or tenant in common." This statute originated in England, and there and in a majority of the American states it has received the construction, which I would think the proper one, that merely by exclusive occupation and use one tenant in common or joint tenant does not become liable to account to others, but only where he receives rents or proceeds of the estate from strangers. Freem. Coten. § 274; note to Early v. Friend, 78 Am. Dec. 665; Chambers v. Chambers, 14 Am. Dec. 665, and note. But in Early v. Friend, 16 Grat 21, which was decided at a date making it binding authority here, it is held that one tenant in common may sue his cotenant, who has occupied the whole property, for an account of rents and profits. He is accountable whether he receives rents and profits from strangers, or receives them by occupying the premises himself, with interest from each year's close. Rust v. Rust, 17 W. Va. 901, holds just the same. In Dodson v. Hays, 29 W. Va. 577, syllabus 2, 2 S. E. 415, this doctrine was somewhat qualified in the holding that where the property is such as to admit of use by several, and less than his just share is used by one tenant in common in a manner not hindering or excluding the others from the use of their shares, he does not receive more than his share, within the meaning of section 14, c. 100, Code, and is not accountable for the profits of that portion owned by him to his cotenants.

But it will be observed that this statute in terms applies to joint tenants and tenants in common, and does not mention parceners. Does the statute apply by analogy to them? Its letter does not. Joint...