120 N.Y.S. 193 | N.Y. App. Div. | 1909
Lead Opinion
For a number of years E. Pitman, one of four tenants in common, collected all rentals from the realty without accounting to his cotenants. In January, 1909, the cotenant, B. Pitman, began an action in this court against the said E. Pitman to recover a money judgment for his share of such rentals. And subsequently, in the same month, he began this action in the said court for a partition of the said realty.. The defendant Smith, also a cotenant, in her answer to the partition suit, asserted her lien for her part of the rents collected by E. Pitman. E. Pitman suffered default in the first action, and three months after the partition action was begun B. Pitman entered judgment and proceeded to advertise the interest or share of the said E. Pitman for sale in satisfaction of his execution. Thereupon the said defendant Smith, on notice, obtained an order in this action that stays B. Pitman and the sheriff from such sale until all of the rights of the parties áre adjudicated in this partition action. B. Pitman appeals from that order. It appears from B. Pitman’s affidavit that the rentals collected and unaccounted for are in excess of the value of the share or interest of E. Pitman in the realty.
Inasmuch as the cotenants had equitable liens upon the undivided share of E. Pitman which could be enforced while the premises were held in common (Hannan v. Osborn, 4 Paige, 336; Scott v. Guernsey, 60 Barb. 163; S, C., 48 N. Y. 106; Kingsland v. Chetwood, 39 Hun, 602), I think that the order was right. In Beck v. Kallmeyer (42 Mo. App. 563) the court says: “ Our opinion is that each tenant in common is not only vested with the title to his undivided interest in the common estate, but each holds a. contingent interest in the entire title, until all equities relating to the tenancy are adjusted. Thus, if one tenant has made necessary and lasting improvements on the common estate, or has paid the taxes legally assessed against it, he will hold the title of his cotenants until he is reimbursed. Or, if the property has passed by descent, and one of the heirs has received advancements, he must account for the advancements, and the other heirs will hold his title until their respective interests can be equalized in a partition proceeding. Or, as in this case, if one tenant collects more than his share of the rents, his cotenant will be entitled to demand and receive from him
I think that this court is committed to the proposition that the Special Term had power to make this order. (Post v. Banks, 67 App. Div. 187.) In that case the question of power was raised on .the printed points of the appellant.
The order is affirmed, with ten dollars costs and disbursements.
Woodwaed, Bioh and Milleb, . JJ., concurred; Bubb, J., read for reversal.
Dissenting Opinion
I agree with the other members of the court that the defendant Caroline A. Smith is entitled to relief restraining the plaintiff from
Order affirmed, with ten dollars costs and disbursements.