Rozier v. Griffith

Ewing, Judge, delivered the opinion of the court. This is a proceeding in equity for partition, and to have the benefit of the purchase of an outstanding title to a part of the land claimed to be owned in common by the plaintiff and defendant Eliza A. Griffith,, and also for an account of rents, profits, &c. The petition sets up an equity between the parties as tenants in common, and asks the enforcement of the trust as to this purchase by his co-tenant. The case is before us on a demurrer to the petition. It is said that the petition can not be sustained because it 'does not allege possession of the premises by the plaintiff. An actual possession is not necessary for the purpose of the action, and the title set out in the petition shows such a seizin as would entitle the plaintiff to the process of partition. (26 Mo. 474.) There appears to be no adverse holding by the defendant. The facts stated show a tenancy in common ; that they hold jointly under a legal title as to a part of the land and under an equitable title as to the remainder. It is only where there is an ouster or an exclusive pernancy of the profits, against the will of the others, that [174] partition does not lie. In this case nothing appears to show that the plaintiff has ever been ousted ; and among co-tenants the possession of one is the possession of all, until an ouster is shown. If the defendant claims an exclusive right by ouster of his co-tenant, that defence can be made by answer. The fact that the defendant is in possession of the premises, claiming to hold them adversely to the plaintiff, is in general a sufficient ground for denying a partition in a court of law ; but when the question arises upon an equitable title set up by either of the parties, the reason of the rule fails. When the questions are such as belong to a court of equity, there can be no reason for suspending the proceedings short of complete justice between the parties. (Cox v. Smith, 4 Ch. 275; Hosford v. Mervin, 5 Barb. 62.) The objection to the petition on the ground of misjoinder of causes of action is not well taken. Courts of equity can enforce the trusts between tenants in common and at the same time make partition and take an account for the rents and improvements or moneys paid for the common benefit. A decree for an account is a necessary incident to the exercise of equity jurisdiction, where equitable compensation is involved, as where the estate has been improved by one party by the expenditures of money, Ac. Where one joint owner appears to have received more than his share of the estate, the court will direct an account, and will not, in analogy to proceedings at law for a partition, confine its relief merely to partition. (2 White & Tudor’s L. C. 534, and authorities there cited.) There is nothing in the point respecting a misjoinder of parties. (Murphy v. Murphy, 24 Mo. 527.) Judgment reversed and the cause remanded. The other judges concurring.