Tomchak v. Handricks

Dethmers, J. The cases of the 2 plaintiffs were combined for trial and appeal .here. They are-daughters of defendant Catherine. Her first husband, plaintiffs’ father, died leaving a business property used as a tavern for the sale of liquor: He left a 2/9 interest in the real estate to each of his 2 minor daughters, respectively, the plaintiffs herein, and a 5/9 interest to their mother, defendant Catherine. While, plaintiffs were still minors their mother married defendant John Handricks. For years thereafter the 4 parties lived together as 1 family. Plaintiffs were supported-and educated .out of funds the defendants made in the -tavern, which the court found was jointly operated by defendants as a partnership, in the building, in question. , Catherine .was *145 the duly appointed guardian of the then minor plaintiffs. She did not inventory their real-estate interests in the guardianship proceedings. No rent was paid by defendants or the partnership for use of the building. Ultimately a divorce occurred between defendants. Plaintiffs then brought these suits for an accounting, injunctive relief and for a decree for their respective 2/9 share, each, in the fair rental value of the property during the period defendants operated the tavern therein. From decree for plaintiffs, defendant John Handricks appeals. Appellant’s first contention is that he was not liable to plaintiffs for rent because each cotenant is entitled to occupy and use the whole estate and 1 cotenant may not recover rent from the other for use of the premises in the absence of an express agreement to pay it. Cited for this are Everts v. Beach, 31 Mich 136 (18 Am Rep 169); Wilmarth v. Palmer, 34 Mich 347; Owings v. Owings, 150 Mich 609; and Zwergel v. Zwergel, 224 Mich 31. Appellant’s difficulty in this connection is that there is nothing* to show that he was a cotenant or had any such interest in the real estate. His marriage to 1 of the cotenants did not make him one. Furthermore, the evidence supports the court’s finding that the business was operated by the 2 defendants as a copartnership. The copartnership was not a co-tenant with plaintiffs. The mother was their co-tenant, but she has taken no appeal. Furthermore, as guardian of her daughters she bore a fiduciary relationship to them, which could give rise to an exception to the rule that 1 cotenant, in possession of the premises owned by them, cannot be held liable to the other cotenant for rent. See annotation in 51 ALR2d 388, in which, at page 440, it is said: *146 “Evidently a cotenant who is in charge of the premises in a fiduciary capacity may become liable for rental value.” Appellant claims error in the trial court’s failure, in determining rent due from him to plaintiffs, to credit him for funds expended by defendants, during their marriage and living together as a family with plaintiffs, for the support and education of plaintiffs. Appellant filed no cross-bills and sought no such relief in his answers to plaintiffs’ bills of complaint. At trial he offered no proofs concerning such expenditure. lie cannot now claim error in that respect. Affirmed. Costs to plaintiffs. Carr, C. J., and Kelly, Black, Kavanagh, Souris, Smith, and O’Hara, JJ., concurred.