Mauch v. Mauch

1966 OK 145, 418 P.2d 941

• Court: Supreme Court of Oklahoma
• Decided: July 19, 1966
• Docket: 41387
• Status: Published

Opinions

DAVISON, Justice.

The parties occupy the same relative positions in this court as they did in the lower court and will be referred to by name or by their trial court designation.

William Mauch instituted the action on March 12, 1964, and by his petition and amendments thereto, sought partition of a 160 acre farm and other rural property located respectively in Lincoln County and in Tulsa County, Oklahoma. The controversy presented to this court involves only the 160 acre farm located in Lincoln County, and our reference herein to “the farm” refers only to the Lincoln County property. Plaintiff (William Mauch) further prayed that the lower court provide in its judgment that he be reimbursed in the sum of $4475.91, representing the alleged increased value of the farm by reason of certain improvements placed by him on the farm from 1947 through 1963. Plaintiff also asked that he be reimbursed for the ad valorem taxes paid by him from 1945 through 1962, and one-half of 1963, in the total sum of $791.57.

By answer and cross-petition and amendments thereto, the defendant Ruby Mauch, individually, and as Administratrix of the Estate of Fred Mauch, Deceased, prayed, inter alia, that the court decree partition and render judgment against plaintiff for the reasonable rental value of the farm from January 1, 1963. Defendant also alleged in substance that beginning in 1931 the farm was operated as a family co-tenancy by plaintiff and Fred Mauch (his brother) and Lena Mauch (their mother), under a mutually agreeable arrangement, whereby the benefits to plaintiff by reason of his use and occupancy of the residence (thereon) and the improvements and a part of the farm more than compensated plaintiff or offset plaintiffs claimed expenditures and improvements.

After trial of the case the court rendered judgment decreeing partition. The judgment further denied plaintiff any recovery for the taxes or the improvements, but awarded him a movable metal grain bin. The court found from competent evidence the reasonable rental value of the farm to be $500 per year and rendered judgment in favor of the defendant Administratrix for one-half thereof from the death of Fred Mauch (June 17, 1963) to delivery of the partition deed. The trial court made the following statement:

“The Court is of the opinion it should not go behind the death of Fred Mauch and this question of rent from the co-tenant or the improvements either one— these parties adapted their own attitudes up to the time of his death and apparently the arrangement was satisfactory to everyone and what they did was agreeable to all at the time and they did it knowing they were in a co-tenancy. Most of the improvements made were made prior to the death of Fred, so The Court is not going to allow the plaintiff any recovery for taxes or improvements prior to the death of Fred, nor allow the defendant any recovery for rent and profit prior to the death of Fred. * * * ”

Plaintiff urges that the court erred in denying him any recovery for the taxes and for the increased value of the farm by reason of the improvements. He also contends there was no justification for charging him the above rental.

This is an action of equitable cognizance and in such cases the Supreme Court will examine the entire record and weigh the evidence but will not reverse the trial court unless the judgment is clearly against the weight of the evidence. Bowen v. Hamilton, Okl., 393 P.2d 858.

The record reflects that the farm was originally owned by Charles Mauch and that he died in 1931 and the property was distributed by probate decree to his widow (Lena), and to his two sons, the plaintiff and Fred, each a one-third interest. The farm was the homestead and these three persons continued to reside thereon and farm the property. In 1940 plaintiff married and brought his wife to the farm and raised a family. Fred married the defendant Ruby on March 26, 1950, and he and Ruby thereafter resided a short distance away. Lena continued to live in the residence with plaintiff and his family until she died intestate in 1957. After Lena’s death the title to the farm was vested one-half each in Fred and plaintiff. Fred died intestate June 17, 1963, without issue. The partition judgment provides that his undivided one-half interest thereupon vested in his widow (Ruby) and the plaintiff in equal shares, but subject to the debts of Fred and any other charges and expenses in the administration of his estate.

During the years Lena lived with plaintiff she did not pay for anything. The plaintiff and Fred by arrangement farmed or used separate portions of the farm and got what each produced. It appears that on occasion they would change or swap the areas that each used or planted. According to plaintiff they “adjusted those things” between them “as they came about” and “he farmed part of it and I farmed part of it.” The record shows that in 1963 Fred harvested a wheat crop from the part used by him.

Plaintiff testified that about 1947 or 1948 he built a brooder house and chicken house at an estimated cost of around $2100 and operated a chicken business because he “had to take care of my mother and stay there.” At some later time the brooder house was practically destroyed by a storm and the hen house was later used for hay storage. We interpret the evidence to show that plaintiff depreciated these structures for tax purposes. In 1953 plaintiff bought a 1000 bushel movable grain bin at a cost of $340.68. This bin was awarded to plaintiff by the judgment. Beginning in 1956 plaintiff planted sixty or more fruit trees. It appears from the evidence that this was not operated as a commercial project and that plaintiff took the fruit produced by the trees. There is evidence that Fred furnished some of these trees. Value of the orchard was estimated at from $300 to $500. In 1961 plaintiff drilled a water well, equipped with electric pump, and built a well house, at a total cost of about $700. Plaintiff stated he did this for family use and to avoid hauling water, which -he had been doing for 10 years, and because -it was necessary for his livestock business. There was evidence that he had depreciated this for tax purposes. Plaintiff did testify that Fred promised to pay a part of the well cost, but never did. Plaintiff testified he had done considerable fencing on the place, but did not know exactly what amount. He produced checks totaling $336.09, dated from 1948 to 1961, representing a part of this cost. He stated that these checks “just as likely” were repairs to the existing fence. In connection with payment of the taxes from 1945' through 1963 the plaintiff claimed and took the statutory homestead tax exemption.

Plaintiff and his witnesses collectively valued the farm at from $18,000 to $20,000, and a value of from $13,000 to $15,000 without the improvements in question.

During his lifetime the deceased, Fred Mauch, engaged in custom farm work over the country and for this purpose had a considerable amount of farm machinery. This took about two-thirds of his time. The machinery remained at the farm when he was not using it in this work. He would also buy cattle and bring them to the farm until he disposed of them. After 1950 he kept a “lot of hogs” there. Even after his marriage he ate many of his meals with plaintiff. Defendant introduced checks of Fred Mauch totaling $230.15, for the years 1959 to 1961 as evidence of purchase of material for repairs, fencing and posts on the farm. There was testimony that the “conditions” and fencing around the place were “very run down.” Plaintiff stated he had not kept the buildings in good repair, but denied he had let them run down. Photos introduced in evidence do support the view that all the improvements are in poor condition. Defendant’s witnesses valued the farm at around $20,000 and worth $2000 less without the improvements in question.

As reflected by the above quoted statement, the trial court concluded from the evidence that the various acts and operations of the parties from the death of the father to the death of Fred reflected an arrangement satisfactory to all, whereby each used and occupied portions of the farm in accord with their respective needs and wishes and their relationship as cotenants. It is obvious that the trial court considered the expenditures made by plaintiff as being consistent with his greater or more valuable use of the farm. Fred’s death deprived the trial court of the benefit of his understanding of the express or implied arrangement under which the parties operated. The trial court clearly considered the equities in the matter. The salient features are that plaintiff used the residence on the farm as a home for him and his family; that for the greater part of the time the use of the farm was subject to the homestead rights of Lena; that the interests of the cotenants varied, in that during the life of Lena each owned a third and thereafter plaintiff and Fred each owned a half; and that the improvements made by plaintiff were for his use and benefit, and were in part depreciated by him for tax purposes.

Title 12 O.S.1961, Sec. 1516, provides:

“The court shall have full power to make any order, not inconsistent with the provisions of this article, that may be necessary to make a just and equitable partition between the parties, and to secure their respective interests.”

In Hargis v. Hargis, 181 Okl. 377, 73 P.2d 1129, 1130, we quoted with approval as follows:

“ ‘While the remedy of partition is statutory, the court in enforcing it has substantially the same powers as were exercised by courts of chancery under the former equity practice.’ ”

In Emery v. Goff, 203 Okl. 618, 225 P.2d 164, we held that under the above statute, in a partition action the trial court had full power to settle all of the equities between the parties in the partition action.

And in Hassell v. Workman, Okl., 260 P.2d 1081, we stated:

“The decree and orders of a district court in partition actions will not be disturbed on appeal in the absence of a showing of substantial prejudice.”

Under the circumstances presented by the evidence and the law above quoted we cannot say that the judgment of the lower court, relative to the taxes paid by plaintiff and the improvements, is clearly against the weight of the evidence.

Plaintiff also complains the court erred in charging him for one-half ($250.-00) of the reasonable rental value of the farm, beginning with the death of Fred Mauch on June 17, 1963. Plaintiff does not claim that the amount is unreasonable.

Plaintiff argues that he has not collected rental from third persons and relies on the rule of law announced in Airington v. Airington, 79 Okl. 243, 192 P. 689, 27 A.L.R. 182, and other cited cases, that:

“A tenant in common in possession of the common property, who has received more than her just proportion of rents from third persons, but who is not holding the premises adversely or to the exclusion of her cotenants, is not liable to account to them for their proportion of the rental value of said premises, but must account to them for their proportion of the rents actually received from third persons, after deducting the sums expended for taxes and necessary improvements.”

We point out, however, that in Kelly v. Dierks, 131 Okl. 217, 268 P. 193, 194, we stated:

“It seems to be now reasonably well settled that, where one is excluded from possession of common property by a co-tenant, and such cotenant collects all rents, and does not account for same, he is liable to the excluded one for that proportion of the fair rental value of the property which the interest of the excluded party bears to the whole interest, (citing cases)

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“In view of the foregoing authorities, we are of the opinion that the trial court properly admitted evidence of the reasonable rental value of the premises in question during the period from 1920 to 1926 and properly rendered judgment for two-thirds of the rental value instead of two-thirds of the actual rents and profits received.”

This presents the proposition of whether plaintiff excluded defendant from possession of the common property after the death of Fred in June, 1963. Fred had raised a wheat crop on the farm in 1963 and had harvested and took the same prior to his death. It was testified on behalf of defendant that subsequent to Fred’s death and in the latter part of June, 1963, the plaintiff told defendant administratrix’ attorney that Ruby Mauch “was not to come back out there;” that he (plaintiff) did not want to discuss with her the matter of Fred’s interest in the farm and his property located on the farm and “didn’t want to have her on the place.” This was not disputed by the plaintiff.

It is obvious that the trial court construed this as an exclusion of Ruby Mauch, both individually and as administratrix, from the farm. In view of the definite and positive nature of plaintiff’s statement we must agree that it amounted to an exclusion and evidenced an intent on his part to resist any occupancy or possession by Ruby Mauch. We do not find any error in the judgment in this respect.

We are of the opinion and hold that the judgment of the trial court is not against the clear weight of the evidence.

Affirmed.

FIALLEY, C. J., JACKSON, V. C. J., and WILLIAMS, IRWIN, HODGES and LAVENDER, JJ., concur. BLACKBIRD, J., concurs in part and dissents in part. BERRY, J., dissents.