Nevarov v. Nevarov

BARNARD, P. J. This is an action for partition of real property and for an accounting. The parties owned 160 acres of land as tenants in common. They farmed the land as partners from 1944 to 1947, and the defendants farmed it thereafter. This action was brought in May, 1948. The complaint alleged common ownership of the land; that the Bank of America held a trust deed as security for a loan of $10,000 ; that there were no other liens or encumbrances; that both parties had advanced money for the benefit of the common property; and that the defendants had failed to account for rents and profits received. The prayer was for a partition and for an accounting. The defendants filed a cross-complaint alleging that the property was held by the parties as tenants in common, and that there were no liens and encumbrances other than the trust deed held by the Bank of America. The prayer was for a partition of the real property, that the liens and encumbrances be determined, and for an accounting as to the partnership operations and as to the advances for the common property made by the respective parties. No lis pendens was filed by either party.

The court found, among other things, that the parties owned the land as tenants in common; and that the plaintiffs had contributed $25,237.63 and the defendants had contributed $1,698.75. A judgment was entered on February 6, 1952, ordering the land and certain described personal property sold, and appointing a referee for that purpose. It was further ordered that the proceeds be applied to the debts and expenses and all liens, including that of the Bank of America and the amount which might be found due to S. P. Gregory; to the payment of $1,000 allowed as attorneys’ fees to the attorneys for each party; to the payment of $25,237.63 to the plaintiffs and $1,698.75 to the defendants; and the balance to be distributed one-half to the plaintiffs and one-half to the defendants. It was further ordered that the defendants should vacate the property on or before February 28, 1952, and that if they failed to do so they should pay the plaintiffs $2,400 as rent for the year 1952, this amount to be deducted from any amount payable to the defendants and paid to the plaintiffs.

The defendants appealed from that judgment, the only points raised being that the court had erred in allowing certain credits which affected the amounts held by the court to have been advanced by the respective parties for the benefit of the property. On that appeal, this court modified the [459]judgment so as to provide that after the payment of the expenses and encumbrances mentioned in the judgment there should be paid to the plaintiffs the sum of $22,166.65 and paid to the defendants the sum of $15,727.77, before the remainder was equally divided.