Frenzel v. Hayes

*635 Fellows, J. (after stating the facts). 1. Plaintiff seeks to here enforce her individual rights, her rights as guardian of Marjorie, and her rights as administratrix of Morgan’s estate. She has the right to enforce her interest as widow of Morgan, and she may, as guardian, file a bill for partition. Gillmett v. Tourcott, 213 Mich. 617. The bill is, therefore, maintainable and we need not discuss whether an administrator alone may maintain such a bill. Defendants’ counsel now insist that no demand for partition was made before filing the bill, and that certain prerequisites were not complied with. It is doubtful if a demand for and refusal of partition was necessary. 30 Cyc. p. 219. But, upon the state of the pleadings, defendants may not now complain of failure to comply with minor technical prerequisites. In their answer they say: ‘‘Answering paragraph 12, these defendants say if plaintiffs desire a partition and division of said 80 acres of land, these defendants have no objection thereto. In fact, it being joint property, if either party desires a division he has the privilege of doing so by agreement or by invoking the aid of the court in the premises. These defendants to avoid expenses are ready and *636 willing to make a division out of court if so desired by-plaintiffs. Otherwise, court procedure is necessary, notwithstanding the expenses and risks of such method.” Plaintiff is entitled to partition or a sale if partition is not feasible. 2. Defendant insists he should not account for the use and occupation of the premises, and also insists that the amount fixed is too high. One cotenant may not recover rent from another cotenant who with his consent occupied the premises owned in common. But where the question arises in partition proceedings in equity, and particularly when the possession has been exclusive, this court has recognized that in adjusting the equities of the parties the one who has had the exclusive occupation of the premises should account, for its use and occupation. Fenton v. Miller, 116 Mich. 45 (72 Am. St. Rep. 502); Hunt v. Hunt, 109 Mich. 399; Schultz v. Dennison, 159 Mich. 259 (25 L. R. A. [N. S.] 1249); Wettlaufer v. Ames, 133 Mich. 201 (103 Am. St. Rep. 449); Noll v. Gundick, 212 Mich. 223. The case of Owings v. Owings, 150 Mich. 609, is not out of accord with the cited cases. In that case the court found that the possession was with the consent of the cotenants. In the spring of 1924, John made arrangement with the administrator of his father’s estate to rent the farm for $500 a year, and, in addition, to pay the insurance. He went to the place but William drove him off with a pitchfork and continued to occupy the premises. Other testimony fixed the annual rental value at $500, and there is little to dispute it. This is the figure fixed by the trial judge, and we agree with him. 3. We are satisfied from the testimony in the case that William perpetrated a fraud on his brother Richard when he obtained his half interest in the farm for $1,000. ' If this is an appropriate proceeding to *637 determine that question, and Richard is now in position to assert his claim of fraud, the decree as affecting the rights of these two brothers should be affirmed. While it is true that under guise of partition proceedings parties may not maintain a proceeding launched to try title alone, it is likewise true that a court of chancery is not ousted of jurisdiction because questions of title arise in partition proceedings, which in the interest of all the parties require the settlement of adverse claims before a judicial sale is ordered. 30 Cyc. p. 238. Two cases in this court which follow earlier cases, we think, demonstrate the correct practice where the question of title arises in partition cases. If the question is of a character requiring a determination of the title by an action at law, the court will stay the partition case until the question of title is settled by an action at law. Fenton v. Mackinac Circuit Judge, 76 Mich. 405, following and citing Hoffman v. Beard, 22 Mich. 59. If the question is one which may be heard and settled in equity, the equity court in which the partition case is pending hears and decides the question in that proceeding. Gillmett v. Tourcott, supra. This case but followed the early case of Page v. Webster, 8 Mich. 263 (77 Am. Dec. 446). In the Gillmett Case the court set aside the deed of minors to their mother and ordered partition- in the same decree, and in the Page Case the bill which was maintained sought the setting aside of a tax deed and partition in the one suit. We think it quite proper that questions of title be settled before there is a judicial sale of the premises. Richard could not have maintained ejectment; his remedy to set aside the deed was through a court of equity. In Moran v. Moran, 106 Mich. 8 (58 Am. St. Rep. 462), it was said: “It is true, as contended, that the uniform practice in this State has been to test the validity of deeds, given under the circumstances claimed in this case, *638 by a bill to set them aside. No case is found where, under like circumstances, this court has permitted a deed for which a consideration had been paid, and which appeared to be executed with due formality, to be set aside in an action of ejectment. It has always been done in equity, where the interests of all parties could be protected.” It is insisted that cross-plaintiff’s laches precludes him from the relief granted. The suit for the construction of the father’s will was pending for something over a year; it was some time after the decision in that case before Richard came into this case and here asked for affirmative relief. Delay alone will not bar relief. In the instant case William has not been harmed by it. He has been in possession of the premises for several years and up to date has paid nothing but the taxes. He has removed to his own farm some 400 rods of wire fence. He insured the buildings in his own name and on the loss of the barn received $2,800 insurance, no part of which has he been required to give up. Indeed, upon this record the delay has been quite profitable for him. Finally, it is insisted that Richard may not maintain his cross-bill because he did not tender back the $1,000 received from William before bringing suit. In the recent case of Chaffee v. Raymond, 241 Mich. 392, the distinction between rescission at law and a suit in equity to rescind was pointed out and it was held that a tender before institution of the suit was not imperatively prerequisite to the filing of a bill to rescind. Here William had had the use of the premises for considerable time and as we have decided was obligated to pay for such use and occupation. He did not have $1,000 coming to him from Richard when Richard filed his cross-bill but in the cross-bill filed by Richard and his wife proffer of return of the $1,000 was made. We have been unable to discover any good reason for reversing the decree, and it is affirmed. It ap *639 peared at the argument that William was still in possession. The record discloses that the decree in the court below was entered nearly two years before the case reached us. The case must, therefore, be remanded for the adjustment of accounts, William, of course, must account for the use and occupation. If he has paid the taxes he-should receive credit. Plaintiff and cross-plaintiff will recover from defendant their costs in this court. Fead, C. J., and North, Wiest, Clark, McDonald, Potter, and Sharpe, JJ., concurred.