Hotopp v. Morrison Lodge, No. 76

Opinion op the court by JUDGE WHITE Reversing. In 1844 the predecessors of appellants, trustees of Hardin Academy, obtained title to a lot of ground in Elizabethtown, and shortly thereafter agreed with appellee to, and they did, erect jointly a two-story brick building on the lot, with the agreement that the first story was to be used by the school, and the second story to be used by the lodge for their purposes. In 1848 an agreement .in writing was entered into, showing the rights of each party in the use of the premises. This contract seems to ha,ve been observed up till now. This writing does not contain any stipulations as to repairs that may become necessary, so that, if there was an express agreement in this regard, it was never reduced to writing. The foundation of the building being out of repair, and endangering the preservation of the building, appellee demanded.of appellants that they make necessary repairs, at their own expense. Appellants declined to make the necessary repairs, but offered to permit appellee to make, at its [990] own expense, any repairs desired. The first story is not used for school purposes, and was not for some years, but is rented as a warehouse. Appellee continues to use the second story for its lodge room. Upon refusal by appellants to make the needed repairs, this action was brought by appellee to compel appellants to make the repairs to their part of the building, and, if this can not be done, for authority to make the needed repairs at the cost of appellants, or for a sale of a part of the lot to make the repairs. Appellants filed an answer presenting the fact that they were the owners in fee of the land and building, and that appellee by its contract had only an easement, a right of use and occupance of the second story of the building, and the necessary right of ingress and egress over the other property, and therefore it was not incumbent on appellants to repair the building or any part thereof. The case being submitted on the pleadings and exhibits, the court adjudged that appellants were the owners in fee of the property, and that appellee had a right of occupancy, by itself and successors, so long as it was used for the purposes of the Masonic order, of the second story, the hall, and stairway, and a right of ingress and egress over the lot to the street, and also adjudged that if the building needed repairs the appellants must make such at their own costs on the first story, so as to give support to appellee’s part of the building; and on this question, as well as to the probable cost of the necessary repairs, the case was referred to the master commissioner for proof. Upon proof being taken by the master, the court adjudged that repairs were necessary for the preservation of appellee’s rights, and directed appellants to elect within 30 days whether they would make the repairs. themselves, and, in case they elected not to make [991] them, authorized appellee to make the repairs necessary, and adjudged a lien on the property to pay the cost thereof. From this judgment this appeal is prosecuted. The written agreement filed with the petition, which was executed January 19, 1848, and signed by the predecessors of appellant, and by a committee representing appellee, shows that the house was erected jointly by both parties, under a written agreement that the appellee and its tenants were to have the use, sole and exclusive, of the second story, and the front hall and stairway, and the right of ingress and egress thereto, and also a room on the first floor fronting Mulberry and Poplar streets. This right was in perpetuity to appellee, and, upon its dissolution, then to any similar organization acting under the Masonic Grand Lodge or Grand Royal Arch 'Chapter of this State. This contract provides that it shall be recorded in the county clerk’s office in a deed book, which appears to have been done in February, 1848. We are of opinion that this writing entered into by the two committees, and approved by the bodies represented, and recorded, evidences a joint tenancy in the building, with an allotment to each as to use and occupancy, and also a joint tenancy as to use of such parts of the lot as afford a way of entrance and exit to and from the part of the building to be used by appellee. This joint ownership of the building would, as we think, necessarly imply a joint obligation to repair, as necessity may require, such portions of the building as of necessity contribute to the safe, comfortable use by both tenants of his part. Such parts would be the foundation, the outside walls, roof, and such like parts. The foundation and walls are as necessary to the safe use of the second story as is the roof to the comfortable use [992] of the first. We are of opinion that these general repairs that are necessary should be made by'both tenants jointly, and that each should bear his share of the common burden, as each enjoys a share of the common- benefit. In this case the ownership is or may be considered equal, and the burden of repairs should bé borne equally. , However, we do not think that repairs made by either without the aid of the other could ever become a lien on the property itself, so that in default of payment a sale could be adjudged. The appellants are trustees of school property, in which the whole community has an interest, and from which it is expected they may derive benefit. The exact terms and conditions1 of the trust do not appear herein; but it would be a rare case where improvements made by a joint tenant at his own instance, though necessary, could by decretal sale operate to destroy the trust estate entirely. Each share of the property should be made to bear its share of the needed improvements as designated, and to that end we think the chancellor would have the right and power, and in proper cases it would be his duty, to place the property in the hands of a receiver to rent out, and appropriate the rents to the discharge of the claim for improvements. In our opinion, the court erred in the judgment rendered in directing appellants, at their own cost, to make the improvements to the foundation walls, or, in case they failed or refused, authorizing appellee to make the improvement, and adjudging a lien on the property to pay same. In our opinion, the judgment should have authorized the necessary improvement made at the cost of both parties, each paying one-half, and, in case either refused to contribute, permitting the other to make the repairs necessary, and for the one-half the cost [993] adjudged a lien on tlie income from the portion of the one delinquent until his share be paid. Wherefore judgment appealed from is reversed, and cause remanded for further proceedings consistent herewith. Chief Justice Paynter dissents. Petition for rehearing, by appellant, overruled.