35 Kan. 180 | Kan. | 1886
The opinion of the court was delivered by
This was an action brought by Louis Sarbach against Mary Newell and Samuel H. Newell to have certain real estate situated in the city of Holton, Jackson county, partitioned between them. On June 16, 1882, judgment was rendered in the case partitioning the property as follows:
“ To the plaintiff, two-elevenths part of said premises without the stone store building thereon, if the same can be done without manifest injury; but if such partition cannot be made without manifest injury, then that said commissioners shall appraise the value of said lot, without the said stone store building, and make a report of their proceedings to the court forthwith. It is further decreed, that in case the plaintiff shall-elect to take the property, he shall pay the found value of said stone store building, nine-elevenths of the appraised value of the lot, aud his proportionate share of the costs and attorney's fees to be taxed; and in case the defendants shall elect to take the property at its appraised value, they shall pay two-elevenths of the appraised value of the lot, and nine-elevenths of the costs and attorney’s fees herein to be taxed. It is further adjudged .and decreed, that in case of a sale of*182 said property the proceeds arising from such sale shall be applied as follows, to wit :
“1. In payment of the costs of this proceeding, including attorney’s fees, hereafter to be ascertained and taxed.
“ 2. That said defendants be paid that proportion of the residue which the found value of said stone store building shall bear to the appraised value of the lot, and the balance then ' remaining shall be divided as follows: Two-elevenths to the plaintiff, and nine-elevenths to the said Mary Newell.”
At the July term of the supreme court in 1882 this judgment was affirmed. (Sarbach v. Newell, 28 Kas. 642.) After ward, and at the January term of the supreme court in 1883, on a motion for a rehearing, the judgment of the district court was modified, by an order of the supreme court, as follows:
“The order, of the district court for theAommissioners making partition to set off to the plaintiff the two-elevenths part of the premises without the stone store building thereon, if the same can be done without manifest injury, must be affirmed. But if partition cannot be made without manifest injury, the commissioners must appraise the value of the lot without the stone store building, and also the value of the lot with all the improvements thereon. The difference between the value of the lot without the stone store building and the value of the lot as improved, will be the amount which the improvements add to the value of the premises, or, in other words, will be the enhanced value of the property resulting from the improvements erected thereon.
“ The proceeds of the sale of the premises must be applied as follows: First, the costs as adjudged by the district court; second, the said defendants shall receive that proportion of the residue which the enhanced value of the premises, resulting from the improvements, shall bear to the appraised value of the lot; and the remainder of the proceeds shall, be divided as decreed by the district court. As the taxes on the vacant lot have equaled the annual net value of the rents, issues and profits thereof, and as the taxes have been paid by the defendants, the plaintiff is not entitled to recover any sum for rents, issues or profits, or any damage for the withholding of the premises.” (Sarbach v. Newell, 30 Kas. 102, 104.)
Afterward, the commissioners appointed to partition the property examined the same, and Reported to the district court
“And thereupon and then and there the defendants offer to take the said property at the appraisers’ value. And then and there the plaintiff offers to taire the same at the appraised value. And thereupon the defendants in open court withdraw their offer. And then and there the plaintiff withdrew his offer. And then and there the defendants offered again .to take the said property at the appraised value. And thereupon the plaintiff offered to take the said property at its appraised value, and asked for an order of sale. And thereupon it is ordered and adjudged by the court, that the sheriff of Jackson county proceed to advertise and sell said property,” etc.
On May 31, 1884, the sheriff sold the property to Samuel H. Newell, for $4,500. On June 21,1884, on motion of the .defendants, the sale was confirmed; and thereupon the court ordered the proceeds thereof to be distributed as follows:
“To the defendants herein, their share as and for the stone store building the sum of $3,363.15; and that from the balance the proportional share which said lot brought at said sale, $1,136.85, be paid: First, the costs, including attorney’s fees, $225, (one-half to be paid to plaintiff’s attorneys, and one-half to defendants’ attorneys;) and the balance to be paid, two-elevenths to the plaintiff, and to the defendants nine-elevenths of the residue of said proceeds or share.”
Of this order of distribution the plaintiff complains, and brings the case to this court for review. He claims that the costs, attorney’s fees and expenses should be first paid out of the entire proceeds of the sale of the property, and then that the remainder of the proceeds'should be divided between the plaintiff and the defendants in proportion to their respective interests in the property; while the court in effect ordered that the defendants should be first paid their share resulting
“Sec. 628. The court making partition shall tax the costs, attorney’s fees and expenses which may accrue in the action, and apportion the same among the parties, according to their respective interests, and may award execution therefor, as in other cases.” (Civil Code, § 628.)
We think the claim of the plaintiff is substantially correct, both under the statute and under the order of the supreme court made at its January term, 1883. (Sarbach v. Newell, 30 Kas. 104.) The costs, attorney’s fees and expenses should first be paid out of the entire proceeds of the sale of the property, and then the parties should receive their respective shares out of the remainder of the proceeds. By such a distribution and apportionment, the costs, attorney’s fees and expenses, as
The order of apportionment made by the court below on June 21, 1884, will be reversed, and the cause remanded for further proceedings.