138 Ga. 457 | Ga. | 1912
Amelia Meyer died seized and possessed of two contiguous lots of land in the city of Savannah. Together the lots measured 69 feet in tvidth and 114.6 feet in depth. At the time of her death the lots were unimproved. These lots passed by inheritance to her husband, George Meyer, and their two children. In the center of these lots George Meyer at his own expense erected a dwelling-house 65 feet in width and 50 feet in depth, and on the rear of the lots an outhouse 12 by 69 feet. He married a second wife, from which marriage two children were born. With his wife and children he occupied the house as a family home until his death. His widow applied for dower, claiming that in the assignment of her dower the improvements were to be considered as the sole property of her deceased husband. The two older chil
The first step in the solution of the legal proposition presented by the foregoing facts is to ascertain whether George Meyer, at the time of his death, on partition proceedings would be entitled to compensation for the .value of the improvements erected by him on land owned in common by himself and the two children of the first marriage. Where land owned by several cotenants is capable of division in kind, and valuable improvements are made by one of them, in a partition between the owners equity will allow the improving cotenant the benefit of his improvements, if it is practicable to do so. In dividing the land the court may take into consideration the improvements, and assign to the improving co-tenant that portion of the land on which they are situated, the division being made on the basis of the unimproved value, if the nature of the land and the improvements permit such a division and it can be done without injury or injustice to his cotenants. Smith v. Smith, 133 Ga. 170 (65 S. E. 414). It is said, however, that the rule is different where the land is not susceptible of a division in kind or is rendered so by the erection of the improvements, .and_ that in'such cases the improving tenant will not be compensated for his improvements, though the common property is thereby enhanced in value. The reason of the rule for allowing compensation to the improving tenant in common is, that when his improvements enhance the value of the common estate and his cotenants are not injured in any way or hindered from having partition, they should not be permitted to take advantage of improvements which enrich the common property and to which they have contributed nothing. The original cost of the improvement is not to be allowed, because it might result in the other owners being improved out of their property by an extravagant or unbusinesslike cotenant, and the improvement may have depreciated at the time of the partition sale. Moore v. Williamson, 10 Rich. Eq. 323 (73 Am. D. 93); Ward v. Ward, 40 W. Va. 611 (21 S. E. 746, 29 L. R. A. 449, 52 Am. St. R. 911). The extent of the improving tenant’s right to compensation is the enhanced value of the property, due to the improvement. There can be no
Is the widow dowable in this increased value? A widow is entitled to dower in lands held by her deceased husband as a tenant in common, and partition need not precede the setting aside of the dower. Ross v. Wilson, 58 Ga. 249. So that the inquiry is,
Judgment affirmed, with direction.