Plant v. Fate

Given, C. J. 1 I. John Fate died intestate in 1875, seised of the land in question, and leaving the plaintiff Mary, since intermarried with plaintiff Joseph Plant, his widow, John Fate, Mary Ann Fate, since intermarried with defendant Frank Thompson, Jennie Fate, and Laureta Fate his children and only heirs, survive him. Joseph and Mary Plant, after their marriage, in 1877, went to reside upon said land, taking said children with them, and continued to reside thereon up to the commencement of this action. During these years Mr. Plant cared for and cultivated the land, and he and his wife provided for their home and for said children as parents usually do. At the time they went upon the land the children were of tender years, being aged from 3 to 8. The children remained in the home, and were properly cared and provided for by the plaintiffs until they grew up and went from home to do for themselves. [285] The plaintiff Joseph Plant acquired- the interest of Jennie Fate November 28, 1892 and. of Laureta Fate January 14, 1895. But two questions are presented on this appeal, namely, should the plaintiff Joseph Plant be charged with rent ? and should the plaintiffs be required to pay all of their attorney’s fees? No question is made as to the respective shares, nor is any now made as to Mr. Plant’s right to be allowed for taxes paid, and for permanent and lasting improvements. Neither are the plaintiffs now claiming anything for the support of the children. The first and important question is whether plaintiffs, who used and occupied the land, should be charged with* rent for the use of the interest therein of these appellees. [285] II. Appellants cite Reynolds v. Wilmeth, 45 Iowa, 693, and other cases, to the effect that one tenant in common is not- liable to co-tenants for the use and occupation of the common property in the absence of an agreement- with them to pay rent, and of demand from them to surrender possession, unless he has received rent for the property from a third person. See Belknap v. Belknap, 77 Iowa, 71, and cases therein cited. “Tenancy in Common. An estate in common exists in two or more persons where there is unity of possession, but each hold by a separate title. The tenants, may hold by different titles, which may vest at different times, and the times of enjoyment be different. There is no right to survivorship, but each share may be freely alienated by will or deed, and, if undisposed of, descends to the heirs of the tenant.” 6 Am. & Eng. Enc. Law, 892. In volume 2 at page 1058, it is said: “Tenants in common are two or more persons who hold possession of any subject of property by several and distinct titles.” Mr. Plant had no title whatever to this land until he acquired the interest of Jennie in November, 1892. Ilis only interest prior to tha” time was the inchoate right in his wife’s interest- in the land at her death — a right that he could not alienate. He was not [286] a tenant in common from 1881 to 1892. As to Mrs. Plant, she was, under the law as it then stood, the natural guardian of her' children, and charged with the care of their property derived from their father. See sections 2241-2243, Code 1813. While charged with this trust, it was her duty to so use the property as to derive whatever income might be derived therefrom for the benefit of her children, to the extent of their interest. If it should be said that she was a tenant in common with the children during their minority, still she is charged as such natural guardian with the care of the property, and with the reasonable value of its use, as long as that interest existed, which was until the children, respectively, became of age. As plaintiff’s used the property together, they are chargeable with the reasonable value of the use of each child’s interest therein up to the time the child became of age. Mr. Plant became a tenant in common upon acquiring the interest of Jennie Fate, November 28, 1892, and, as the guardianship of Mrs. Plant terminated upon the children’s attaining majority, she, too, became a tenant in common with them. As such tenants in common, they would be entitled to be allowed for permanent improvements made and for taxes paid on the property. There is no evidence showing the value of any improvements made at the time of the commencement of this action, and therefore nothing can be allowed on that account. The taxes paid by them since they became tenants in common amount to $86.15, one-sixtli of which should be charged to each of the defendants John Fate and Mary Ann Thompson, being $14.35 to each, and the decree will be modified accordingly. 4 III. The court ordered that each party pay its own attorney fees. This division of the attorney’s fees is not. authorized. Under section 4261 of the Code, partition beinsc ordered, “there shall-be taxed in favor of the plaintiffs’ attorney, ás costs, in the case, an attorney’s fee,” etc. There is no authority for apportioning [287] this attorney’s fee, as may be done with other costs, under section 4260. The decree of the district court will be modified in the two respects indicated, and as thus modified it is AFFIRMED.