86 So. 531 | Ala. | 1920
This is a cross-appeal from a decree confirming the report of the register on a reference. No question of law is involved — only the ascertainment of a question of fact. Exceptions were filed by both complainant and respondent to the report of the register.
Under subdivision 1, § 5955, Code, the finding of a register based on oral examination of witnesses is presumptively correct, and, if there is a reasonable doubt as to whether it is correct, such finding will not be disturbed. This rule obtains as to review of the register's finding by the chancellor and by appellate courts. Bidwell v. Johnson,
We have examined the record and are of the opinion that the sum reported by the register as a reasonable compensation to be paid complainant's solicitors for their services was supported by the evidence and should be *565 deducted from the proceeds of the sale of the unimproved land for reasons hereafter indicated.
The amount of the reasonable rental value of the property as unimproved, fixed at $40 since August 16, 1911, was at the rate of $5 per year; and there was evidence on which this finding may rest. However, the respondent Porter should not be charged that full sum, since a cotenant is entitled to the use of the whole property until there is an ouster or exclusion of the cotenant from the use and enjoyment of his interest in the property. The mere fact that a cotenant in possession has taken all the rents and profits does not show ouster. Winsett v. Winsett,
An examination of the evidence discloses that the finding of the register as to the value of the improvements on said property amounting to $500 was supported by evidence given orally. We will not disturb this finding.
The compensation of $10 to be paid the register, as commissioner, for the sale of said property, was reasonable, and will be collected as other items of costs.
There was no error in reporting to the court the amount of the accrued taxes on the property for the year ($10.20), that the property be sold free of that incumbrance. It should have been apportioned, one-half to the improvements and deducted from the amount of $500 allowed and set apart to respondent for such improvements thereon. The other one-half of this tax ($5.10 and interest) will be apportioned, respectively, one-third to respondent's moiety of the sale of her one-third interest in the unimproved lot, and two-thirds to be deducted from the proceeds of the sale of complainant's two-thirds interest in the unimproved lots or its ascertained value.
As to the costs of the court and apportionment thereof, the register had nothing to do, the same being a matter of judicial determination by the court. In equity, the question of costs rests largely in the discretion of the chancellor. Manning v. Carter,
It results from what we have said on both appeals that no part of the costs or solicitor's fees may be deducted from the value of the improvements. The same will be paid to respondent Porter without diminution by costs, solicitor's fees, or commissions for making the sale, and subject only to the sum of $5.10, the amount of "taxes for the present year," with interest thereon to date of payment on final decree. As to the value of such improvements, in a court of equity, the complainant was not a cotenant with respondent Porter. Their cotenancy only existed in the unimproved lots. No partition or sale for division among cotenants was effected as to said improvements, though such was incidentally accomplished by the sale pursuant to the decree. The partition between the parties litigant as cotenants was only as to the unimproved lots, and it is upon this moiety — the proceeds of the sale of the lots — that these burdens should, under the circumstances, be imposed.
The complainant Henderson will be taxed with the costs of this appeal — that including the appropriate costs in the lower court in perfecting the appeal, the transcript, and in the Supreme Court. The other costs incurred or accruing in the lower court in the conduct of the proceedings to a final decree, and the reasonable costs incurred as solicitor's fees, will be deducted from the $500, the proceeds of the sale of the unimproved lots, in proportion to the respective interests of the parties — one-third to Porter and two-thirds to Henderson. Thereafter, the remaining proceeds will be apportioned as follows: One-third to Porter, less the one-third of $5.10 and interest as taxes, and the allowance of two-thirds of the $5 annual rental ascertained to be reasonable and due from the date indicated. The remaining two-thirds will be *566 paid to Henderson, with two-thirds of the $5 annual rentals from date indicated, less his proportionate part of the $5.10 and interest as taxes, to which his two-thirds interest in the unimproved lots were subjected.
The decree confirming the report of the register will be reversed at the instance of appellant Porter, and the cause is remanded for a final decree pursuant to this and our former opinion.
Reversed and remanded.
ANDERSON, C. J., and McCLELLAN and SOMERVILLE, JJ., concur.
