Bennett v. Bennett

84 Miss. 493 | Miss. | 1904

Calhoon, J.,

delivered the opinion of the court.

Henry Bennett, Jr., and his brother and sister, the appellees, who are minors, by their next friend, set up in their bill below that they are the only children and heirs of Henry Bennett, deceased, who died March 3, 1900; that he died the owner of an undivided one-half interest in a tract of 160 acres of land described, the other half belonging to C. B. Bennett, the appellant ; that their deceased father and the appellant got title from the state in 1892, and that those two were in possession when Henry died as tenants in common, bnt that now C. B. Bennett is in possession of the whole tract, and denies that Henry’s heirs, the appellees here, have any interest at all; that C. B. Bennett got the whole crop of 1900 and 1901, and refuses any compensation for use and occupation; that ninety acres were in cultivation during these years, for which six dollars per acre was a reasonable rental value; that partition should be made, and complainants pray for it, and for solicitor’s fee, and account for the use and occupation, etc. C. B. Bennett answers, admitting the tenancy in common, but denying that the shares were equal, denying his use of any more than his proportionate share, and denying that he ever prevented decedent or his heirs from using their share. By cross-bill he charges that he and deceased bought the land from the state on May 16, 1887, for $58.05, of which he paid $43.05, and decedent only $15, thus entitling him to 118.62 acres, and the decedent to 44.38 acres; that he cleared and put all the improvements on the ninety acres at a cost of at least $10 per-acre, and that he has paid all the taxes on the whole tract since the purchase, aggregating $546.33; and he prays equitable adjustment in any partition, and that the improved part be allotted to him, etc. The answer to the cross-bill denies the inequality of contribution to the purchase price to the state; denies the complainants were not excluded from the land, and says they were excluded by C. B. Bennett from the whole tract; denies that C. B. Bennett paid all the taxes; set up a half' interest in all, improved and unimproved, and the ten years statute of limitations to C. B. Bennett’s claim. The conveyance from the state is for the expressed consideration of $58.05, is dated May 16,- 1887, and is “to Henry and C. B. Bennett.” It is established, without contradiction, that Henry never paid a cent of the taxes; that C. B. Bennett paid them all from the beginning, the gross amount being $546.33; and that C. B. Bennett did all the clearing and erected all the buildings, even to the very house occupied-by Henry’s family. No lack of harmony appears in the relations between Henry and C. B. Bennett while Henry lived, and, while on the land, he lived in a house built by C. B. Bennett, and worked fifteen or twenty acres of land cleared by C. B. Bennett. There is no evidence whatever of any ouster by 0. B. Bennett of Henry or complainants.

The decree which is appealed from by C. B. Bennett to settle the principles of the case adjudges that complainants own a half interest and C. B. Bennett the other half interest in the entire one hundred and sixty acres; that complainants are entitled to an account for rents, and C. B. Bennett for compensation for improvements. It adjudges that complainants are entitled to partition, so that the parties may each have an equal one-half share; and commissioners are appointed to make the partition, who are directed accordingly, and they are further directed to have regard to the situation, quantity, and advantages of each share, so that the same may be equal in value, as nearly as may be, and, if there be any inequality, they are to report it to the court. The decree then refers the papers to a special commissioner, who is directed to state an account between the parties of “the fair rental value of the aforesaid land during the occupation thereof by the said complainants, or either of them, and the said defendant, respectively, up to and including the year 1904:,” and to state an account of all permanent, valuable, and not ornamental improvements made by complainants or defendant, and of the taxes paid by defendant, and to “charge the said parties, respectively, with one-half of the said rental value of the said land, received by the said parties, respectively. As against the said charge for rents, the said commissioner shall credit the said parties, respectively, with one-half the value of the said improvements made thereon by the said parties, respectively, and shall credit the defendant with one-half of the amounts paid by the said defendant as taxes on said land, and said commissioner shall state the amounts, upon said basis, which shall then be found by him to be due by or from the said complainants to and from the said defendant, as the case may be.” The decree leaves all other matters in controversy until the coming in of the reports of the commissioners.

To recapitulate some of the facts, this record discloses very clearly the following: (1) In the year 1887 the whole tract of one hundred and sixty acres was wild land, occupied only by the beasts of the forest — just such land as it is to the interest of the state, and the society it represents, to have developed by cultivation. (2) Henry Bennett and C. B. Bennett bought this land from the state May 16, 1887. (3) The deed from the state was to those two, and therefore each took an undivided one-half on the face of the conveyance. (4) The purchase price was $58.05, of which C. B. Bennett paid $43.05 and Henry only $15. (5) Thom the date of the purchase C. B. Bennett has paid all the taxes, and Henry not a cent of them. So far from paying any of them, he persistently refused to pay a stiver. (6) C. B. Bennett vigorously and laboriously attacked the virgin wilderness, and cleared up about ninety acres of it, put the plow in it, and built five or six houses on it. (7) Henry wasted no muscular force on these lines, but did, off and on, come and live there, in a house that C. B. Bennett built, and worked fifteen or twenty acres of the land C. B. Bennett had cleared. (8) Henry, while he lived, and C. B. Bennett were entirely harmonious, so far as this record shows: and Henry made no complaint of C. B. Bennett’s labor, nor did he ever set up any claim to its fruits. Now, when C. B. Bennett cannot testify, Henry’s children, living on the land O. B. Bennett improved, complain, and want not only partition, but accounting: for use and occupation. (9) While C. B. Bennett was laboring on the land, Henry was out of the state for about.seven years of the time, but the house constructed by C. B. Bennett was his haven of final resort. Henry died March 3, 1900, and his children filed their bill December 9, 1901.

The majority of the court, with whom I doubtingly concur, affirm so much of the decree as dismisses the cross-bill, but we all fully agree in modifying other parts of it.

1. As to eighty acres being the half of the one hundred and sixty acres cleared, improved, and cultivated by C. B. Bennett, he cannot be called on to account for rents. Medford v. Frazier, 58 Miss., 241.

2. As to the excess over eighty acres, which excess he cleared, improved, and cultivated, he may be required to account for its reasonable rental value, but may offset this with the reasonable cost of the clearing and improvements put by him on that part; and if there be a balance in his favor, he shall have a lien for it on the share of the tract allotted to appellees. If the balance be in their favor, they shall have a lien for it on the share allotted to him.

3. Taxes paid by either of the parties in excess of what was due from him shall be a lien on the share allotted the other.

4. In making the partition of the land, it shall be as if it were now a wilderness, and the eighty acres to which C. B. Bennett is entitled shall be allotted him of the land he has cleared and improved; and, in the event this was more valuable than the other half in a state of nature, contribution shall he ordered. Paddock v. Shields, 57 Miss., 340; Freeman on Co-t. & Par., sec. 509; Ward v. Ward, 40 W. Va., 611 (21 S. E., 746; 29 L. R. A., 449; 52 Am. St. Rep., 911, and notes); Allen v. Hall, 50 Me., 253; Donnor v. Quartermas, 90 Ala., 164 (8 South., 715; 24 Am. St. Rep., 778); Sneed v. Atherton, 6 Dana, 276 (32 Am. Dec., 70); Kurtz v. Hibner, 55 Ill., 514 (8 Am. Rep., 665); Louvalle v. Menard (Ill.), 41 Am. Dec., 161; Dugan v. City, 70 Md., 1 (16 Atl., 501); Collect v. Henderson, 80 N. C., 337. Many other authorities might be cited — so many that this might be regarded as a cardinal principle.

5. If the inquiry as to rents goes behind the date of the death of Henry Bennett, an administrator of his estate may be made a party, unless administration is shown to be unnecessary.

Reversed and remanded for procedure according to the principles announced in this opinion.