19 A. 321 | R.I. | 1889
Tristam Burges devised an estate in Providence, known as the Hoyle Tavern estate, to his wife for life, remainder in fee, one half to three daughters and the other half to those whom his wife should appoint by will. In January, 1873, Mrs. Burges and the three daughters joined in a lease for a term of fifteen years, covenanting therein to pay the lessee, at the expiration of the term, the fair value of a barn to be built on the premises by him, if it should then be standing. Mrs. Burges died in 1879, but the lease was allowed to run along to the commencement of this suit, just before the lease expired. Partition by metes and bounds being impracticable, a sale of the premises was ordered, free of all claims by the parties, the lease having then expired, the claims being reserved for consideration in the distribution of the proceeds. The estate, with the barn thereon, has been sold; the proceeds have been paid into the registry of the court, and the question now presented is, whether the value of the barn shall be paid by the three heirs who joined in the covenant, or proportionally by all the owners, some of whom are minors. When a part owner makes valuable improvements, courts of equity agree that compensation should be allowed, by setting off the improved portion of the land to him who made the improvements, if it is practicable to do so. See Story Eq. Juris. § 655; Freeman on Cotenancy, § 510, and note, 2d ed.
There is, however, some difference about the rule of awarding *656
compensation in the case of unauthorized improvements when partition is made by sale. It has generally been held that a part owner, who has enhanced the value of the common estate at his own cost, is entitled to such equitable compensation as will leave only the value of the estate without the improvements to be divided among the tenants in common. Hall v. Piddock,
Mr. Freeman, § 511, refers to cases in Alabama, New York, Arkansas, and Indiana as holding a somewhat contrary doctrine. InOrmond v. Martin,
Let a decree be entered in accordance with this opinion.