47 Ind. App. 573 | Ind. Ct. App. | 1911
— This suit was begun on May 8, 1905, in the Noble Circuit Court, by Lydia T. Geisendorff, against appellees, for partition and for the collection of rents and profits of real estate. While the suit was pending, said
Answers in five paragraphs were filed by appellees Henry G. and Mary C. Cobbs, and Henry G. and Charles C. Cobbs each filed a separate paragraph of counterclaim. Charles C. and Clara Cobbs filed answers the same as Henry G. and Mary C. Cobbs.
Demurrers were filed to each of the special answers for insufficiency of facts, and they were overruled.
Appellant replied the six-year statute of limitations to the counterclaims of Henry G. and Charles C. Cobbs. To these replies, demurrers were filed for insufficiency of facts, and sustained. Appellant filed general denials to each of the affirmative answers.
Upon a trial by the court without a jury, the judgment was for appellees, and from that judgment this appeal is taken.
Appellant has assigned as error the overruling of his separate demurrers to paragraphs two, three, four and five of the answer of Henry G. and Mary C. Cobbs, the overruling of the demurrers to the same answers by appellees Charles C. and Clara Cobbs, the overruling of his demurrers to the counterclaims of Henry G. and Charles C. Cobbs, the sustaining of the separate demurrers of each of the appellees Henry G. and Charles C. Cobbs to his reply to the counterclaims of said appellees, error of the court in making a special finding of facts after his request therefor had been withdrawn, and error of the court in overruling his motion for a new trial.
Appellant had the right to withdraw his request for a finding of facts, and the action of the court thereafter in making such finding was not in compliance with the statute, and, under the decisions, will be considered only as a general finding. Northcutt v. Buckles (1878), 60 Ind. 577,
The second paragraph of answer sets up the six-year statute of limitations. The third paragraph denies that appellees were tenants in common with appellant’s decedent in the real estate described in the complaint within six years next before the commencement of the action, and avers that the cause of action sued upon in the amended complaint did not accrue within six years next before the beginning of this action. The fourth paragraph of answer alleges, in substance, that appellees and said decedent were not tenants in common; that appellees, under a claim of title, have been in open, notorious, exclusive, uninterrupted and continuous possession of the real estate described in the complaint for twenty years immediately before the commencement of the suit.
The fifth paragraph of answer alleges adverse possession of the premises, under a claim of title, from 1882 to the commencement of the action; that under claim of ownership the rents were received and converted to appellees’ use; that said Lydia T. Geisendorff had full knowledge of the possession and use of the premises, the collection and appropriation of the rents by appellees, their claim of ownership of the real estate and that parts thereof had been from time to time sold; that she knew appellees had made and were making valuable improvements thereon from year to year; that she at no time claimed or demanded said rents and profits or any portion thereof, and appellant is therefore estopped.
In his paragraph of counterclaim Henry G. Cobbs alleges that George W. Geisendorff, the husband of said decedent, was adjudged a bankrupt in 1872; that the real estate in question was sold by his assignee in bankruptcy; that appellees hold title by mesne conveyances from said assignee; that said George W. Geisendorff died in 1882, and at that time the real estate was wholly unim
Numerous questions are discussed by appellant, many of which need not be specifically mentioned here, but are necessarily determined by certain propositions of law which we deem applicable to the facts and issues of the case.
Under a strict application of the rules, we might refuse to consider questions arising on the pleadings, but in view of our conclusions on other questions presented, necessitating a reversal of the judgment, we deem it best for all the parties that we decide the questions arising upon the pleadings.
The original suit was for partition and an accounting for rents and profits, but the amended complaint seeks only to recover rents and profits collected from third parties, and alleges that appellant’s decedent and appellees were tenants in common of certain real estate; that appellees collected all the rents and appropriated them to their own use, and upon demand refused to pay them, or any part thereof, to appellant or to said decedent.
But this is an independent action for the collection of rents and profits, and the six-year statute of limitations is applicable. Cowan v. Henika, supra; Starke v. Kirchgraber (1908), 134 Mo. App. 211, 113 S. W. 1149. In the case of Peden v. Cavins (1893), 134 Ind. 494, 500, 39 Am. St. 276, it was held that an independent action to recover rents presents a different question from a suit for partition, where, under an equitable rule, rents are taken into account in determining the amount a tenant in possession should pay for improvements. The court did not err in overruling the demurrer to the second and third paragraphs of answer.
Freeman, Cotenancy §509, states: “The law declines to compel one cotenant to pay for improvements made without his authorization; but it will not, if it can avoid so inequitable a result, enable a cotenant to take advantage of the improvements for which he has contributed nothing. When the common lands come to be divided, an opportunity is afforded to give the cotenant who has enhanced the value of a parcel of the premises the fruits of his expenditures and industry, by allotting to him the parcel so enhanced.”
In the case of Alleman v. Hawley (1889), 117 Ind. 532, the court held that in a partition suit where the property was not divided, upon sale the equitable principles would be applied in distributing the funds. The court (page 538) said: “The appellant’s right to compensation for her improvements is not a legal right, depending upon a statute, but it is a right resting upon equitable principles, and one which a court of equity will enforce.”
It is fully established by the weight of authority that the claim for permanent improvements, made by a cotenant in possession without authorization by other tenants in common out of possession, can be enforced only when the land is to be parted or sold and the proceeds distributed according to the respective interests of the several cotenants. Parish v. Camplin (1894), 139 Ind. 1, 16; Carver v. Fennimore (1888), 116 Ind. 236; Harry v. Harry (1891), 127 Ind. 91, 94; Elrod v. Keller (1883), 89 Ind. 382; Dodge v. Davis (1892), 85 Iowa 77, 52 N. W. 2; Ballou v. Ballou, supra; Freeman, Cotenancy §262; Fenton v. Miller, supra; Van Ormer v. Harley, supra.
The overruling of the motion for a new trial brings before us the alleged error of the court in excluding certain testimony offered on behalf of appellant.
Preliminary to the decision of these questions, it may be stated that an agreement of the parties shows that the husband of appellant’s decedent conveyed his property to an assignee in bankruptcy in 1872, and thereafter died in 1882; that John W. Teal, in 1885, was, by mesne conveyances from said assignee, the owner and in possession of part of the real estate described in the complaint, and claimed by appellees by mesne conveyances from said Teal.
It has frequently been held that declarations of a party in possession of real estate, showing the character of his possession and the title asserted by him, are competent evidence against those claiming under him, with the exception that such declarations cannot be admitted either to sustain or defeat the record title. Smith v. McClain (1896), 146 Ind. 77; Steeple v. Downing (1878), 60 Ind. 478, 503; 12 Ency. Ev. 569; White v. Dinkins (1856), 19 Ga. 285; Quick v. Cotman (1904), 124 Iowa 102, 99 N. W. 301; 9 Am. and Eng. Ency. Law (2d ed.) 39; 1 Am. and Eng. Ency. Law (2d ed.) 797, 798; Liggett v. Morgan (1888), 98 Mo. 39, 11 S. W. 241.
The testimony offered could not tend to sustain or defeat the record title, but was important on the question of con
The witness claimed to have negotiated for and procured the deed for some person or persons, but was uncertain as to the identity of such persons. He was the active and efficient agent for the persons obtaining the deed, and his duties as assignee in bankruptcy were in no way involved. He was called by appellees to testify against the legal representative of the decedent about matters occurring in her lifetime. Our statute (§523 Burns 1908, §500 R. S. 1881) provides as follows: “No person who shall have acted as an agent in the making or continuing of a contract with any person who may have died, shall be a competent witness, in any suit upon or involving such contract, as to matters occurring prior to the death of such decedent, on behalf of the principal to such contract, against the legal representatives or heirs of the decedent, unless he shall be called by such heirs or legal representatives.”
Appellees were the remote grantees and privies of the persons for whom the alleged deed was procured, else it could have no probative value whatever. The objection to the competency of the witness should have been sustained. Millikan v. Patterson (1883), 91 Ind. 515; Jonas v. Hirshberg (1907), 40 Ind. App. 88; Insurance Co. of North America v. Brim (1887), 111 Ind. 281.
Other errors discussed are not likely to arise upon another trial. What we have already said on the questions decided is sufficient to determine the law of the case.
The judgment is reversed, with directions to the lower court to sustain the motion for a new trial, to permit the parties to amend their pleadings if they desire so to do, and for further proceedings in accordance with this opinion.