134 Mo. App. 211 | Mo. Ct. App. | 1908
This is a suit in equity for an accounting of rents and profits. Plaintiffs, who are tenants in common with the defendant, of a certain parcel of land, filed their hill in the circuit court calling upon the defendant to account to them for rents and profits accrued by the act of defendant in renting the common estate to a stranger. Upon a hearing, the court found the issues for the defendant and the plaintiffs appeal. The several plaintiffs and defendant were tenants in common of a small parcel, of land consisting of about four acres adjacent to the city of Springfield, Missouri. The plaintiffs owned four-sixths of the land and the defendant owned two-sixths thereof. The de
“Each tenant is entitled to the possession, and may enter and enjoy if he will. As each tenant is entitled to his share of every part of the undivided premises, one tenant cannot gain an exclusive right to any part of them. He may enter and enjoy a portion less than his share, yet the other tenants will be entitled to their share of that portion, as each tenant is seized of his portion of every part of the undivided premises; so that if the law were otherwise, one tenant might refuse to enter, and the other could not enjoy any portion, even one less than his share, without making himself liable to the others for a share of the profits, and that without regard to the fact whether the occupation was beneficial or otherwise to the premises.*214 Of course, if one cotenant ousts another, he will be liable in an ejectment, or subject himself to the law of forcible entries. But where the land is free to all, and each may enter if he will and enjoy his rights undisturbed, there is no reason in compelling him, who does enter, to pay rent to him who neglects or obstinately refuses to do so.”
However this may be, where one of the tenants in common ousts his cotenants, as in this case, he may be held to account to them for their proportionate share of the rents and profits of the estate, and in such cases, it is immaterial whether the premises were occupied by the tenant himself or leased by him to a stranger. In such circumstances, it is sufficient to entitle the plaintiffs to recover in their .action for an accounting of the rents and profits to show an ouster by their co-tenant and his consequent possession, together with the reasonable value of the rents and profits for the period they were precluded from enjoying the fruits of the premises. [Bates v. Hamilton, 144 Mo. 1-13; In re Tyler, 40 Mo. App. 278-284; Sears v. Sellew, 28 Ia. 501; 17 Amer. and Eng. Ency. Law (2 Ed.), 694.] In the case at bar, it is conceded that the plaintiffs who owned four-sixths of the premises are tenants in common with the defendant who owns two-sixths there.of; that the plaintiffs' were actually ousted by the defendant on the first day of April, 1899; and that the defendant thereupon entered into possession, let the premises to a tenant, and continued to so occupy the premises until about November 1, 1905. Upon these facts, it is difficult to perceive upon what theory the issues were found for the defendant, unless it be the court entertained the opinion that the reasonable value of four-sixths of the rents and profits were not more than an equivalent to, and should be set-off by a four-sixths portion of the taxes paid on the premises during the yea^s the defendant held possession through her tenants. It is proper to say here that the defendant’s
An argument is advanced by the plaintiffs to the effect that the taxes paid by defendant during the years of the plaintiff’s disseizin are not a proper subject of set-off, for the reason they were paid by the defendant in her own behalf when she was holding possession and asserting a title adverse to the plaintiffs. We are not persuaded by this argument. In Missouri the statute affixes the taxes as an incumbrance on the lands, against which they are assessed, and gives a remedy on non-payment by enforcement of the lien of the State. If taxes are not paid when due the lien of the State may be foreclosed and the land sold to satisfy the judgment and costs. Although the defendant may have claimed the. entire estate at the time she paid the taxes and may have intended the payment to protect her own property only, nevertheless in each instance the payments resulted in the discharge of an incumbrance resting upon the entire estate in common. It is generally true that where one of several tenants in common of land relieves a burden resting upon the joint estate, he is entitled to a just contribution from the others to the end that the burden may be equal. The doctrine
As stated above, the defendant failed to plead the Statute of Limitations against any portion of the plain
As to the question of limitation against the payment of taxes declared upon as a matter of set-off. Now if the Statute of Limitation obtains with respect to the right of plaintiffs to recover for rents and profits and precludes a portion of the matter of account in their favor, the most elementary principles of natural justice would, of course, dictate that it should' obtain alike with respect to such items of account contained in defendant’s answer as accrued more than five years before the institution of this suit. The defendant’s right of contribution on account of taxes paid by her accrued on the date the taxes were paid. It appears that numerous payments of taxes were made by her more than five years before the institution ,of the present action. The defendant’s right of recovery on those items is precluded by the statute. [Keen v. Connelly, 25 Minn. 222-228.] The defendant may amend her answer and plead the statute as to such of the rents and profits as are barred thereby, if she is so advised. If the answer is so amended in taking the account, the. court should reckon with the Statute of Limitations as it affects the rights of either party to the action.
The judgment is reversed and the cause remanded.