116 Ga. 765 | Ga. | 1902
' Mrs. Turnbull filed, in the superior court of Morgan county, a petition against F. C. Foster, L. H. Foster, and F. W. Foster, alleging that she and the defendants were tenants in common of certain described land in Morgan county, entitled each to a one-fourth interest therein, and praying for the appointment of
Mrs. Turnbull demurred specially to the plea, on the ground of the failure of the defendants therein to set forth a bill of particulars. The record does not show whether or not the plea was amended to meet this demurrer, but presumably it was, as the point was not arguedin this court. She also demurred ontheground “ that said plea or answer, after admitting that the plaintiff is a tenant in common of the land sought to be partitioned as alleged in her petition, does not in law set up any fact that would bar her right to have said land partitioned.” The defendants filed an amendment to their plea, in which they set rip that Mrs. Turnbull, in acquiring her interest in the land, had actual notice of the agreement under which they went upon and were in possession of the land, and hence was not a purchaser for value and without notice; and that Phinizy, having purchased pending the suit, occupied no better position than his vendor, F. W. Foster. The court passed an order sustaining the demurrer as to so much of the- plea as objected to a partition of the land, and overruling it as to that part which setup the right of the defendants to an accounting.- An order was also passed referring the case to an auditor to hear and determine certain issues. The auditor found that there were due to F. C. Foster and L. H. Foster certain sums expended by them upon the property in excess of the amount received in rents,, and that one fourth of the amount so due was chargeable against each of the four owners of the property. Other findings of law and fact, not material to this discussion, were embodied in the auditor’s report. Exceptions of law and fact were filed to that report, which, with some minor exceptions, were overruled by the court, and judgment was rendered substantially in accordance with the findings of the auditor. Mrs. Turnbull and Phinizy filed a bill of exceptions complaining of the overruling of the demurrer to the plea of F. C. and L. H. Foster, the order submitting the case to an auditor, and the judgment sustaining the auditor’s report. The only point argued
1, 2. The proceedings to partition, set out in the Civil Code, §§ 4786 et seq. are in the nature of equitable proceedings, in which “ the court has all the power and jurisdiction for hearing and determining the various matters in dispute between the parties, in respect to their respective titles, and awarding a partition, according as he shall find the parties entitled, as fully and completely as if it were a bill in chancery for that purpose.” Griffin v. Griffin, 33 Ga. 109. See also Hamby v. Calhoun, 83 Ga. 317. The plea of the defendants set up an agreement between the four original owners of the land in dispute, for the making of valuable improvements thereon by two of them, the benefits of which were to accrue to all four. The terms of this agreement are set forth in the plea with sufficient clearness; and as between the original parties thereto, that plea, setting up, as it does, that the defendants have in great part carried out the obligations resting upon them and have spent large siirns on the common property in excess of the rents and profits received therefrom, was sufficient, if established, to authorize a decree for a settlement between the parties to the contract. In Hines v. Munnerlyn, 57 Ga. 32, and again in Arnett v. Munnerlyn, 71 Ga. 17, it was held, upon the prayer of a plaintiff for partition and accounting, that “ Where a tenant in common has mortgaged the entire estate, and such mortgage has
In many of the States it is held that one1 of several tenants in common may, in a proceeding for a partition, recover compensation for improvements made by him without the consent of his cotenants. In the case of Green v. Putnam, 1 Barb. (N. Y.) 500, it was held: “ Where one tenant in common lays out money in improvements on the estate, although the money so expended does not, in strictness, constitute a lien on the estate, yet a court of equity will not grant a partition without first directing an account, and a suitable compensation ; or else in the partition it will assign
3. We have no difficulty in reaching the conclusion that the question sought to be raised by Mrs. Pauline Foster in her bill of exceptions is not properly before this court for determination. Her petition to be made a party was presented in February, 1902, and no order of any sort was passed thereon. Whether it was overlooked by the court we can not say. The petition does not set up any interest in common with either Mrs. Turnbull or Phinizy, but
Judgment on main bill of exceptions affirmed; cross-bill dismissed.