Flynn v. Seale

HARRISON, P. J.

The plaintiff and Henry W. Seale were for many years tenants in common of a tract of land in the county of Santa Clara, each owning an undivided half thereof, upon which there was a valuable quarry of building stone, and on September 6, 1888, said Henry W. Seale died, leaving a last will and testament, by which he devised the said land to the defendant herein, and since said date the plaintiff and the defendant have been cotenants thereof. The interest of said Henry W. Seale in said land was distributed to the defendant by an order of the superior court May 23, 1890, and on March 25, 1892, a final distribution of the estate was made to the defendant as the residuary legatee of said decedent. In his complaint herein filed September 10, 1895, the plaintiff alleges that since October 1, 1888, the said tract of land has yielded certain rents and profits, the greater portion whereof has been collected and received by the defendant; and that he (the plaintiff) has during said time made certain expenditures in the care and preservation of the property, and he asks that an account be taken and stated between them, and that he have judgment for the amount ascertained thereby to be due to him from the defendant. The cause came on for trial in 1900, and upon'the trial the court found that between October 1, 1888, and January 17, 1900, the land had yielded

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rents amounting to the sum of $5,905.40, of which $5,705.40 had been received by the defendant, and $200 by the plaintiff ; that the defendant had paid to the plaintiff $175; that the defendant had paid for state and county taxes thereon the sum of $2,587.45; that during said time the plaintiff had paid out and expended for improvements upon said property $96.60, and the defendant the sum of $88.30. The court thereupon held that the plaintiff was entitled to recover from the defendant the sum of $1,288.12%, and rendered judgment accordingly.

In his answer to the complaint the defendant, in addition to traversing its allegations, pleaded as counterclaims against the plaintiff that Henry W. Seale, shortly prior to his death, paid for and on account of the plaintiff various sums of money, amounting in the aggregate to $8,000, which had not been repaid, and that at the request of the plaintiff he had become responsible and guaranteed to pay other moneys amounting to $2,523 for and on account of the plaintiff, and that since his death the defendant had been compelled to pay this latter sum in order to protect his title to the aforesaid land; that subsequent to October 1, 1888, the plaintiff, under a contract made by him prior to the death of Henry W. Seale, furnished to one McClerie building stone ‘from the quarry on the land, of the value of $10,500, and sold from said quarry other quantities of stone, for which he received in the aggregate the sum of $21,000, which he had converted to his own use. The same matters were also pleaded by the defendant by way of cross-complaint against the plaintiff.