Klein v. Maddox

PETEBS, P. J.

Plaintiff brought this action for partition of a parcel of real property in Mariposa County. The trial court made an order confirming the report of a referee that physical partition could not be had without injury to the interests of the parties, and directing the referee to proceed with a sale of the property. From that order defendants appeal. It is the position of defendants that the evidence is insufficient to support the finding that there cannot be a physical partition without prejudice to the parties, and that the order is insufficient because it fails to include a finding on an issue to which reference will hereafter be made. There is no merit in either contention.,

Plaintiff owns a three-fourth undivided interest in the property. The defendants own designated portions of the remaining one-quarter. The propertyffiow contains 2.94 acres.

[143]

Plaintiff has admittedly been in sole, exclusive and undisputed possession since 1926. Starting in that year plaintiff, at her own cost and expense, improved the property by erecting thereon a main store building, cabins, garage, gas station, pumping plant and wells. Defendants at no time prior to this suit demanded an accounting, requested possession, or disputed plaintiff’s right to proceed. They have contributed nothing towards the cost of the improvements. These facts all are admitted.

The complaint of plaintiff and the cross-complaint of defendants both prayed for a physical partition, or, in the alternative, requested a sale if it should be found that physical partition could not be had without material injury to the rights of the parties.

In their answer and cross-complaint defendants prayed that an accounting be had to determine the market value of the improvements and to ascertain the amount of the rents, issues and profits derived from the property. It was the then position of defendants that they had the right, if they elected, to contribute to the cost of the improvements and thereby secure a right to participate in the profits. They desired an accounting to determine if it would be to their advantage to share in the costs and profits. The first hearing was had on February 25, 1941, and at that time some evidence was taken and the question as to defendants’ right to an accounting was fully argued before the trial court. The reporter’s transcript filed on this appeal contains only the proceedings had on that date. On February 26, 1941, the court made its order that, under the circumstances, plaintiff was not required to account. No objection is made to this preliminary ruling.