Buhrmeister v. Buhrmeister

[394]

BURNETT, J.

The action was for partition, and the appeal is from the interlocutory judgment.

The only point urged hy appellant is that the action was prematurely brought. On February 18, 1903, H. G. Buhrmeister died testate, devising in equal shares the property sought to be partitioned to his six children, including appellant and respondent. By the terms of the will, as stated by appellant, plaintiff was given the use and occupation, rents, issues and profits of said property for five years immediately after the death of the testator at the annual rental of $300, $60 to be paid to each of the other five devisees annually by said plaintiff. These other devisees were directed by the testator, in his will, to execute to respondent a lease of the real property for the terms and upon the conditions already named. The said property was distributed to the six children in accordance with the terms of the will “at the expiration of the term of five years from the eighteenth day of February, 1903, or sooner determination of the right to the use thereof above vested in Wallace Buhrmeister. ’ ’ Plaintiff was in possession under said, leasehold right until February 18, 1908, and during the years 1905 and 1907 he bought the interest in the property of all the other devisees except that of appellant. The suit was begun November 27, 1907, nearly three months before the expiration of said leasehold interest, but it was not tried until some time after said lease had expired.

The facts are, then, that at the beginning of the action plaintiff was the owner of “an estate of inheritance,’’ to wit, the fee in and to an undivided five-sixths of the property in controversy, and was in possession of the whole thereof by virtue of said lease, and the defendant was the owner in fee of the other one-sixth, but was not entitled to its possession until February 18, 1908. It is therefore argued that since one of the parties was not entitled to the possession at the time the complaint was filed, the case is not one in which “the cotenants hold and are in possession” of real estate, and consequently not within the contemplation of the statute which provides that “when several cotenants hold and are in possession of real property as parceners, joint tenants, or tenants in common, in which one or more of them have an estate of inheritance, or for life or lives, or for years, an action may