58 Tenn. 669 | Tenn. | 1872
delivered the opinion of the court.
Complainant and defendant are brothers and tenants in common of a valuable tract of land of 400 acres, situated in Washington county. Being unable to agree as to a partition of the land, they have submitted the question that divides them to the court of equity. The record exhibits two brothers, in old age,' differing honestly as to their rights, — insisting upon their respective claims with an earnestness, persistence and pertinacity which appear almost incredible in view of thé fraternal affection and confidence which have
It appears that, about 1838, complainant and defendant purchased of Jacob Miller the land in eontro-■versy, at the price of $5,000, each paying one-half of the purchase money and taking from Miller a conveyance of the title to them as' tenants in common. Before the conveyance was made, defendant, who was the elder brother, expressed an anxiety to own the entire tract, proposing to pay to complainant his portion- of the purchase money when he should receive an amount sufficient therefor which was due to him in South Carolina, and which he expected to collect in the course of a year or two. To this proposition complainant assented, but the deed from Miller was .nevertheless taken to' them as joint purchasers, and
The improvements on the place, consisting of a hrick dwelling-house and the usual outhouses, were situated near the centre of the tract and alongside of a lane or road, which ran from north-west to southeast, dividing the tract nearly into equal parts. They agreed to occupy the house and lots around it in common, and to recognize the lane or road as a temporary division line — complainantto cultivate the portion on the south side of the division line, and defendant that on the north side. The improvements were situated on the portion south of that line. ■ The two brothers lived together in the house for six years, each cultivating the portion agreed on and using the lots around the dwelling in common — neither accounting to the other for any rents.
In 1844, complainant purchased another tract about three miles distant and removed to it, where he has ever since lived, leaving defendant in possession of the whole tract. Upon removing, an agreement was made by which the temporary division line was to continue to be recognized, and defendant was to account to complainant, as defendant says, for the products of the several fields which complainant had cultivated, or, as complainant says, for the products raised on the portion south of the division line. It is shown that complainant has received the rents regularly of the several fields formerly cultivated by complainant, and that no complaint had ever been made by complainant that he had not received all the
As to the general facts as detailed, there is no material conflict between the parties, either in their own testimony or in that of the numerous witnesses examined by them. The difference is as to the opinions of the parties and their respective witnesses as to the deductions to be drawn from the facts in regard to the practicability of an equitable or advantageous division of the farm. Complainant and some eighteen or twenty witnesses are of opinion that the tract is susceptible of an equitable division, and they
But it is not shown by the facts, nor by the opinions of the witnesses on either side, that a partition is impracticable. It is clear, upon all the facts, that the tract can be divided into two farms of about 200 acres each, and therefore a partition cannot be resisted on the ground that the premises are so situated that' partition thereof cannot be made. It is insisted, however, for defendant that the premises are of such description that it would be manifestly for the advantage of the parties that the same should be sold instead of partitioned. Each tenant in common of land has the right to a partition of the premises, except where such partition is impracticable, or where, from the situation of the premises, a sale would be manifestly advantageous to all the parties interested: Code, sec. 3293.
In this case the parties differ on the question, whether the premises are so situated that a sale instead of partition would be advantageous to them. Complainant, who has a clear legal right to a partition, claims that he shall enjoy his portion of the land in kind, and that a sale would not be to his advantage. Defendant insists that a sale instead of a '
The only difficulty in making a partition of the land into two equal parts, quality and quantity both considered, is in the fact that there are valuable improvements on the land, many of which have been placed there by the defendant since the complainant removed from the place in 1844. But the proof as to the location of these improvements furnishes a satisfactory solution of this difficulty. It is shown that the temporary division line made by the parties divided the original tract into two parts, nearly equal
The remaining question in the case relates to the rents during the time the whole tract has been occupied by defendant. It is in the settlement of this question that we are brought in contact with the most serious discrepancies and contradictions in the recollection of the parties, as developed in their re
Taking all the circumstances together, we are of opinion that, in arranging the equities between the parties on the subject of rents, we are justified in assuming that from 1844 until the filing of the bill defendant occupied, improved and cultivated the whole farm as his own, and under the belief that all he had to pay was the original purchase-money and rent for the several fields which complainant had cultivated previous to 1844. It is true the agreement between, the parties was by parol, and therefore cannot be specifically enforced by defendant, but inasmuch as. complainant has availed himself of his undoubted right to disavow the parol agreement and insist on his por-, tion of the land, we are fully justified, under all the facts and circumstances, in holding, that as to the settlement of the question of rents, complainant is to beheld as having waived any claim therefor, except as. to the fields before specified, and as to which it is admitted the rents have satisfactorily been accounted for. The result is, that the land will be partitioned by commissioners as hereinbefore determined, but no account will be ordered for rents.
The cause is remanded for further proceedings, The costs of this court will be divided.