Owings v. Owings

150 Mich. 609 | Mich. | 1908

Grant, C. J.

(after stating the facts). 1. For some time prior to the death of the father he and his son, the defendant, occupied the premises jointly under an arrangement for a division of the crops. Defendant’s sisters, Georgiana and Mrs. Stoner, lived with them. After the death of the father defendant continued in possession, his two sisters continuing to live there whenever they chose. Defendant did not occupy the premises adversely; there was no agreement that he should pay rent or account to the others. No co-tenant demanded possession or brought any suit in ejectment or otherwise to enforce his claim. The other co-tenants were free to come and go as they chose. He paid the taxes and made repairs and improvements. He was a co-tenant in possession by the consent of the other co-tenants, without any act or word indicating an understanding that he was to pay rent, or account for profits to his co-tenants. The law in this State is settled that, under those circumstances, a co-tenant is under no obligation to account for rents and profits. His occupancy was in his own right and for the interest of all. Everts v. Beach, 31 Mich. 136; Wilmarth v. Palmer, 34 Mich. 347; Moreland v. Strong, 115 Mich. 211; Fenton v. Miller, 116 Mich. 45; In re Graff’s Estate, 123 Mich. 456. The affirmance of the decree of the court below would result in overruling the above cases, and make a tenant in possession by the tacit assent of his co-tenants liable to account to them for the rental value of the property. It follows that the decree in this respect must be reversed.

2. The administrator was not a proper party complainant. He had no interest in the partition of the land. It is conceded that a partition was impracticable, and that it was for the interest of all that the land be sold and the proceeds divided. This was patent to all the heirs, as well as to the administrator before suit was brought. His clear duty was, there being insufficient personal property with which to pay the debts, to proceed to a sale in the probate court. If the defendant was liable to any one for rent after the death of his father, it was not to the administrator but to the heirs. The heirs could legally proceed to partition before the settlement of the estate. Campau v. Campau, 19 Mich. 116.

The complainants, however, had no occasion to institute such suit to obtain their share of the property. A sale by the administrator and a division of the proceeds after -payment of debts and expenses, would have accomplished the object and with the least expense. The undoubted purpose of the bill was to compel the defendant to account for the rental value of the property while he had been in possession and thus wipe out his claim allowed against the estate. The administrator was not justified in lending himself as a party complainant to assist his co-complainants in the accomplishment of this object.

The land involved is not of great value. It appears conceded that the parties in interest are poor. The bill can be sustained as a bill for partition. We are therefore disposed to affirm the decree authorizing a sale of the land and a division of the proceeds. This can be done now cheaper than to remand the case to the probate court to allow the administrator to proceed to sale. The sole claim against the estate is that of the defendant. When the account of the administrator is allowed by the probate court, the commissioner in the circuit court will pay over to the administrator the costs of administration and the debt allowed defendant, and distribute the balance among the heirs according to their respective interests. The defendant will recover costs against the complainant heirs, and as well against the administrator in his individual capacity, and not as administrator. The value of the timber will be accounted for on the final distribution.

Blair, Montgomery, Ostrander, and Hooker, JJ., concurred.