Willmon v. Koyer

LORIGAN, J.

Defendant appeals from a decree in partition of a lot owned by the parties as tenants in common, and from an order denying his motion for a new trial.

Plaintiff, in addition to asking for a partition of the property, prayed for an accounting between himself and defendant and a judgment in his favor for one-half of certain moneys claimed to have been paid by him for the common benefit of the joint property, and that a lien be fixed on the portion of

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the property set apart to defendant to secure its payment. The court decreed a partition and found that plaintiff had made the expenditures claimed to the extent of $1045.60; that defendant was liable for one-half thereof—$522.80—gave judgment in favor of plaintiff therefor, and established the lien as prayed for.

The only question presented on the appeal from the order denying defendant a new trial is relative to the validity of this allowance; and on the appeal from the judgment the validity of the lien to secure its payment.

The expenditures claimed to have been made by plaintiff consisted entirely of the payment of taxes, a street assessment and attorney’s fees in defending an action brought by a third party affecting the common property, all paid at different dates between December 19, 1902, and October 26, 1909. There were no rents or profits from the cotenancy property. There is no dispute as to the correctness of the amounts paid out by plaintiff nor the fact of their payment. The claim of defendant is that by reason of certain facts set up in his answer and found in his favor by the court no allowance in the nature of contribution by defendant for one-half of these expenditures should have been awarded at all, and, in any event, the right of plaintiff to the greater part of them, if it ever existed, was barred by the statute of limitations (Code Civ. Proc., sec. 339, subd. 1), which defendant had appropriately pleaded. These facts relied on by the defendant are, that after plaintiff and defendant, in May, 1902, had entered into an agreement between them to purchase the lot involved in the partition for their joint benefit, plaintiff violated the agreement, took title to the whole property in his own name, asserted ownership to the entire lot in himself, and repudiated all claim of the defendant to any interest therein; that in August, 1903, defendant brought an action to establish his title as joint owner with plaintiff in said property, which plaintiff resisted, claiming that he was the sole owner thereof and that defendant had no interest therein; that such litigation continued until January 10, 1910, when a judgment establishing the title of defendant to one-half of said lot as tenant in common with plaintiff was entered; and that in establishing his title to said property he was compelled to expend in counsel fees and costs a large sum of money. This action in partition and for an accounting was commenced by plaintiff March 30, 1910, a few months