Holbrooke v. Harrington

VANCLIEF, C. Action for partition of a tract of placer mineral land containing about twenty-five and one-half acres, situate in Nevada county, in which the plaintiff and defendant are tenants in common, in equal portions, and for an accounting as to expenditures by plaintiff upon and for the benefit of the land, in excess of her share. It appears that prior to the year 1883 the land was owned and mined in equal shares by defendant and the husband of plaintiff, Daniel P. Holbrooke; that upon the death of Daniel P. Holbrooke, in 1883, his share and interest in the land descended to plaintiff, as his only heir, and was afterward distributed to her by the probate court. And there is no question that she and defendant have been tenants in common, as aforesaid, since the death of her husband, though the defendant denied that they were ever part[555]ners in the working or mining of the land; nor does it appear that defendant opposed a partition. The only questions presented here relate to the accounting. The court found that it was impracticable to partition the land by metes and bounds, and therefore ordered a sale thereof. ' The court found that plaintiff had expended “in acquiring the title to said premises, and in necessary expenditures for taxes and annual labor and improvement on said claim since March 1, 1883, the sum of $1,005.75, and defendant no sum whatever, and that defendant refuses to repay,to plaintiff any portion of said sum of $1,005.75 so expended by her, or to account to her for any portion thereof.” In the order of sale the court directed the proceeds of the sale to be applied as follows: “ (1) To the payment of the costs and expenses of said sale and of this action, including attorney’s fees allowed. (2) That there next be paid to said plaintiff, out of the proceeds of said sale, the sum of $502.85, being one-half of said sum of $1,005.75 paid by said plaintiff as aforesaid, in acquiring the title to said premises, and in necessary expenditures for taxes and annual labor and improvements on said claims. (3) That the rest and residue of the proceeds of said sale be divided equally between plaintiff and defendant. ’ ’ The defendant appeals from the judgment and- from an order denying his motion for a hew trial.

There seems to be no merit in the appeal, though appellant claims a reversal of the judgment on two grounds:

1. It is contended that “the judgment is against law,” because, it is said, the sum of $502.85 allowed to plaintiff from the proceeds of the sale improperly includes $200 for annual labor done by plaintiff on the unpatented portion (ten acres) of the land for the years 1890 and 1891. The evidence, without conflict, shows that plaintiff did the annual labor required by the laws of the United States—$100 a year—for each of the nine years immediately preceding the commencement of this action, amounting to $900, and is amply sufficient to prove that she did such work, during the first seven of said nine years, under an express agreement with defendant that he would pay her for one-half of the work. In 1890 plaintiff, for the purpose of working and mining the claims for a profit, in addition to the annual labor required by law, erected thereon hoisting works and machinery of the value of $3,500,