Southern Adjustment Bureau, Inc. v. Nelson

California Court of Appeal Nov 9, 1964 No. Civ. 7446Published

Before: Brown (Gerald)

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Holding. When a cotenant advances funds to preserve common property, they are entitled to be reimbursed for the entire amount of the advancement from the proceeds of a partition sale before the remaining balance is divided equally between the cotenants.

Issues

Whether a cotenant who advances funds for the preservation of common property is entitled to full reimbursement from the proceeds of a partition sale before the residue is divided.

Disposition. reversed

Quotations verified verbatim against the opinion

“When a cotenant makes advances from his own pocket to preserve the common estate, his investment in the property increases by the entire amount advanced. Upon sale of the estate he is entitled to be reimbursed his entire advancement”

BROWN (Gerald), J.

The plaintiff Southern Adjustment Bureau, Inc., owned an undivided one-half interest in a parcel of land as a tenant-in-common with the defendant Mildred Nelson. Plaintiff had advanced $2,516 to pay taxes, insurance and trust deed payments to preserve the common property. This action was commenced to quiet title and partition. The trial court found that plaintiff was entitled to a reimbursement for its contribution. Since it was impossible to make a physical division of the land the court ordered the property sold and the proceeds distributed. This appeal

[540]

involves only that part of the judgment which deals with the manner in which plaintiff is to he reimbursed by defendant for its advancement of $2,516 for taxes, insurance and trust deed payments.

The original interlocutory judgment of the trial court directed payment to plaintiff of $2,516 from the proceeds of the sale. The residue was then to be divided equally between the parties.

Over plaintiff’s objection, however, the judgment was amended to provide:

“4. Payment to . . . the Plaintiff . . . the sum of $1,258, said sum being one-half of the advances made by Plaintiff on the Trust Deed, insurance and taxes; Plaintiff to recover in addition thereto interest on the . . . advances at the rate of ... (7%) per annum.

“5.

There [it] shall be paid . . . prior to the equal distribution of the balance between the parties. ’ ’

It is plaintiff’s position that the amended judgment incorrectly measures the method of reimbursement for its contributions to the common estate; that the correct method requires the proceeds to be divided equally, and then plaintiff should be given a lien of $1,258 against defendant’s share.

To illustrate: A and B each own an undivided one-half interest in Blackacre as tenants-in-eommon. A advances $2,000 for which he is entitled to contribution from B of $1,000. In an action for partition, the court orders Black-acre sold.

How should the proceeds be divided ?

Possibility One:

Southern Adjustment Bureau, Inc. v. Nelson

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