Nevarov v. Nevarov

BARNARD, P. J.

This is. an action for partition of real property and for an accounting. John W. Nevarov, who will be referred to as the plaintiff, and Jaclc A. Nevarov, who will be referred to as the defendant, acquired 160 acres of farm land in Kern County, as tenants in common. They farmed the land as partners during the years 1944 to 1947, inclusive. The defendant lived on the land and devoted his time to the farming operations. The plaintiff lived in Los Angeles and did some work on the ranch over the weekends. The partnership ended on January 1, 1948, and thereafter the defendant continued to farm the land.

The plaintiff brought this action on May 28, 1948. In an amended complaint he alleged common ownership of the land; that the defendant had at all times been in physical possession of the property and had received rents and profits for which he had not accounted; and that each of the parties had advanced monies for the benefit of the common property. The prayer was for a partition and for an accounting. The defendant filed an answer and cross-complaint, alleging that the real property was held by the parties as tenants in common; that until January 1, 1948, they had farmed the land as a partnership; and that on January 1, 1948, the plaintiff withdrew from the partnership and thereafter the defendant was in sole possession and farmed the land as an individual operation. The prayer was for a partition of the real property, for an accounting as to the respective advances made for the benefit of the common property, and for an accounting as to the farming operations. The plaintiff answered the cross-complaint admitting the tenancy in common, and admitting the partnership in the farming operations for a portion of the time.

The court found that the parties owned the land as tenants in common; that since about April 1, 1944, they had been copartners; that the report of a public accountant, appointed by the court to make an audit of the books, was true and correct insofar as it went; that this report disclosed that a total of $12,937.63 had been contributed by the plaintiff and $21,267.26 by the defendant; that in addition thereto the

[583]

plaintiff had also contributed $2,700, thereby increasing his contribution to $15,637.63 and decreasing the contribution of the defendant to $18,567.26; that the defendant had collected $8,258.04 during 1947 on an insurance policy covering partnership cotton, for which he had not accounted; that this amount should be deducted from defendant’s contribution reducing it to $10,309.22; that the defendant had agreed to pay the plaintiff one-half of $30 per acre per year as rental for his one-half of the property; that there was due to the plaintiff $9,-600 as such rental for the years 1948 to 1951, inclusive; that the amount of this rental should be added to plaintiff’s contribution and deducted from the defendant’s contribution, making the plaintiff's contribution $25,237.63 and the defendant's contribution $709.22; and that defendant was also entitled to $989.53 for material furnished, making his contribution $1,698.75. The court ordered the land sold and appointed a referee for that purpose. It ordered that the proceeds of the sale should be applied first to the payment of debts and expenses; that the sum of $25,237.63 should then be paid to the plaintiff and the sum of $1,698.75 to the defendant; and that the balance, if any, should be equally divided between them. Judgment was entered accordingly, and the defendants have appealed.