762 S.W.2d 482 | Mo. Ct. App. | 1988
Appeal is taken from a consolidated action to quiet title in land and to partition same. The trial court found the following facts.
Appellant, Willie Vickers and appellee,
The trial court held Mr. Vickers’ financial interest in the property was $4,020.00. This figure was arrived by crediting him with half of the down payment and closing costs ($1,350.00) plus the equity in his share of the mortgage payments made be
Appellant asserts the trial court erred in calculating the amount of his financial interest and in ordering the conveyance between the parties.
Appellant’s contention that the trial court erred in determining his interest is well taken. Brooks v. Kunz, 637 S.W.2d 135 (Mo.App.1982), addresses the partition of a tenancy in common acquired in part by execution of a mortgage. Where both co-tenants jointly execute a note for part of the purchase price, a court should “allow a credit to each co-tenant for one-half of the mortgage amount financed, but allow contribution if one co-tenant pays more than his proportionate share.” Brooks, 637 S.W.2d at 139.
The trial court incorrectly determined appellant’s interest by computing the equity value of his portion of the joint mortgage payments. Brooks allows a credit to each co-tenant for one-half of the mortgage amount financed, but allows contribution if one co-tenant pays more than his proportionate share. Here, the parties paid the down payment from a joint account and executed a mortgage together. Thus, the calculation of the parties’ interests begin by crediting each with a half share. The trial court found that respondent met the mortgage payments after April 1972 without any contribution from the appellant. Thus, in the next step of the calculation, the appellant must account for his half of the payments from December 1968 to March 1972, as well as any other expenditures for improvements which were made in good faith, of a necessary and substantial nature, that materially enhanced the value of the property, and which circumstances demonstrate equitable. Hartog v. Siegler, 615 S.W.2d 632, 636 (Mo.App.1981). The court, in equity, may then allow as a set off against these improvements, necessary improvements, taxes and other charges paid by the respondent. Also, the court should consider the fair rental value of the property for the time respondent was in exclusive possession. Beckham v. Eggleston, 341 S.W.2d 337 (Mo.App.1960).
Because there are no factual findings on the amounts respondent paid on the mortgage after April of 1972, taxes, costs of improvements and any other charges, we remand to the trial court.
Appellant also asserts the trial court erred in ordering appellant to sell his interest in the property to the respondent. Supreme Court Rule 96 and Chapter 528 RSMo authorize two methods of partition. A court may partition in kind or may order a sale if it finds partition in kind cannot be made without great prejudice to the owners. Supreme Court Rule 96.11. The trial court did not order partition in kind. Neither did the court order a sale in keeping with the procedures of Supreme Court Rule 96 or Chapter 528 RSMo. Instead the court required the appellant to sell his share to the respondent. In Brooks v. Kunz, 597 S.W.2d 183 (Mo.App.1980), a suit to partition a farm and contract for deed, the trial court ordered the appellant to purchase the respondent’s share of the contract. In reversing, we stated, “There is no authority under the rules or statutes for a trial court to ‘partition’ in this manner. Rule 96.60. The court neither partitioned the property in kind nor ordered its sale but forced one of the co-owners to purchase the share of the other co-owner_” Brooks, 597 S.W.2d at 187.
The case at bar differs from Brooks in that the appellant is not being forced to purchase respondent’s interest but to sell his interest to the respondent. Although the order in the instant case case may seem less harsh than the order in Brooks, we reach the same result as in Brooks. In Brooks, we noted the trial court did not have the statutory authority to issue such an order. Chapter 528 RSMo and Supreme Court Rule 96 allows a court to either partition the property in kind or to sell the
The cause is reversed and remanded for further action in accordance with this opinion.
. A designation usually preserved for federal court appellate practice. See Union Center Redev. Corp. v. Leslie, 733 S.W.2d 6, 7 (Mo.App.1987). Hereafter we will refer to appellee as a respondent in the custom of this court.