Summary
Before Whaley J. County Court, Richland, October, 1920.
Action by Rosina Sterlita Peets by P. J. Chavis, Guardian ad litem against Anna Wright.
From judgment both parties appeal.
The report of the Master was as follows:
I,the undersigned Master, have to report:
1. Pursuant to an order of reference heretofore granted by Hon. M. S. Whaley, presiding Judge of the County Court, dated July 11, 1919, referring the above-entitled cause to J. C. Townsend, Master in Equity for Richland County, “to take the testimony and report the same with all convenient speed to this Court, together with his findings of law and fact thereon, and that he have leave to report any special matter, I held several references herein attended by counsel of record, took the testimony offered which is herewith reported, and therefrom I find and conclude as follows :
2. I find that Rosina Wright was seized and possessed of certain lots of land described in the complaint, holding the same under deed from Caroline Waters -dated February 28, 1887, recorded March 26, 1887, in Deed Book R, at page 202; that some time since and a long time prior to this date said Rosina Wright departed this life intestate, leaving as her only heirs and distributees at law her husband, Sterling Wright, and a daughter by a previous marriage, Julia F. Peets.
3. That the said Julia F. Peets departed this life on or about July 4, 1909, leaving as her only heirs and distributees at law her husband, A. E. Peets, and one daughter, ■Rosina Sterlita Peets, the plaintiff herein.
4. That the said A. E. Peets, husband of Julia F. Peets, departed this life on or about July 5, 1917, leaving as his only heirs at law and distributees his daughter, Rosina Sterlita Peets, the plaintiff herein.
5. That the said Sterling Wright departed this life on or about August 30, 1918, intestate in so far as the testimony shows, leaving as his known heirs at law his wife, Anna Wright, one of the defendants herein.
6. I find, therefore, that the parties entitled to the distribution of said property as described in' the complaint, is the plaintiff, Rosina Sterlita Peets, entitled to two-thirds thereof, and Anna Wright, wife of Sterling. Wright, and the other heirs of Sterling Wright, if any, are entitled to the other one-third thereof.
7. I find that said premises have been in possession of Anna Wright and her predecessors from whom she inherited for and during the term since the death of the said Rosina Wright, to the exclusion of Rosina Sterlita Peets and those from whom she inherited, and that the same is still in the possession of the defendant, Anna Wright.
8. In this case there was voluminous testimony taken as to an accounting between the parties'in interest from the death of Rosina Wright when the property was in the possession of the heirs at law of Rosina Wright, to wit: Sterling Wright and Julia F. Peets, and after the death of Julia F. Peets when the same was in the possession of the said Sterling Wright and Anna Wright and during which time improvements were made on the property by those in possession and for which an accounting should have been had between the administrator, if any, of Julia F. Peets and Sterling Wright, but it appears that none were ever had, and the attempt is now made to set up such an accounting in this action against Anna Wright on behalf and for the interest of Rosina Sterlita Peets, heir at law of- Julia Peets, and her father, A. E. Peets. I have therefore eliminated an accounting between these parties in the property from the death of Rosina Wright to the time of the death of Julia Peets, and from whom Rosina Sterlita Peets inherited the same, and from which time only this plaintiff, Rosina Sterlita Peets, has had an interest in said premises and since which time said premises have been occupied, and in the possession of Sterling Wright and his wife, Anna Wright, the defendant herein.
9. That any and all of such improvemeits made by Sterling Wright during his occupation and possession of the premises could not now inure to the benefit of Rosina- Sterlita Peets, and that an accounting for rents and improvements as between the parties then entitled ten the possession of the premises should be. deemed and declared to be a balance of accounts.
10. I herewith submit a statement of the accounts proven between the plaintiff and defendant in this action, to wit, Rosina Sterlita Peets, plaintiff, and Anna Wright, defendant :
11. I find that the defendant, Anna Wright, is entitled to a credit for the taxes, repairs, and insurance paid on said premises, and that the plaintiff, Rosina Sterlita Peets, is entitled to the repayment of taxes paid by her and for two thirds of the value of a reasonable rent for said premises from the tim’e of the death of her mother, Julia F. Peets, to wit, July 4, 1909, to the date of this report, to wit, September 10, 1920.
12. The following is a statement of the account between the parties plaintiff and defendant herein as best same can be determined from the evidence produced: The following is a statement of accounts Anna Wright is entitled to credit:
Taxes, city: 1909 ....................$ 5 10
1910.................... 6 10
1911.................... 6 40
1912 .................... 6 40 •
1913.................... 6 80
1914.................... 6 60
1915...... ............. 7 20
1916.................... 8 83
1918................... 12 00 •
-$ 65 43
Taxes, county: 1915, February ........ $ 7 20
1915, December........ 7 20
1917, January ......... 13 86
1917, December . .-...... 7 92
1918, December........ 7' 20
1919, March............ 8 24
-$ 51 62
Repairs, 1916: Toilet..................$ 9 00
Wire fence.............. 14 35
Wire.................. 4 50
Labor on toilet.......... 9 20
Labor on wire fence...... 2 40
-$ 39 40
Insurance: 1917, Miller .............. $ 8 00
1916, Miller .............. 8 00
1910, Bollin .............. 12 00
1913, Bollin .............. 17 60
--$ 45 60
$202 05
The following is a statement of accounts to which Rosina Sterlita Peets is entitled to credit:
Taxes, city, 1917..........................$ 10 30
Rents, July 4, 1909, to September 10, 1920, 134.2 months, at $15 per month, $2,003, two-thi-rds to Rosina Sterlita Peets.................. 1,335 33
$1,345 63
Less credits Anna Wright.................. 202 05
Balance due plaintiff....................$1,142 58
13. Testimony was introduced giving various amounts as to the rental value of the premises from the year 1909’ to the present date, ranging from a valuation of twelve ($12.00) dollars per month to twenty-two ($22.00) dollars per month. I have therefore struck an average, and am allowing a rental of $15 a month which I find to be a fair average, taking into consideration that the smaller valuation • was made for a longer length of time than the larger valuation as shown by the testimony, and have given credit to Rosina Sterlita Peets for two-thirds of said amount, which I find to be reasonable to be allowed in adjusting the accounts between the parties to this action.
14. That after giving credit for the amount of expenditures by the' defendant, Anna Wright, and allowing credits to Rosina Sterlita Peets, I find, that there is a balance due the plaintiff in this action of $1,142.58.
15. I further find that the plaintiff, Rosina Sterlita Peets, is entitled to judgment against the defendant, Anna Wright, in the sum of $1,142.58, same being the balance due according to the foregoing statement on account of the tenancy and occupancy by the defendant, Anna Wright, in and to said premises for and during the time covered by the foregoing statement.
16. The property being impracticable of division in case of settlement, I would recommend that the premises be ordered sold, and the proceeds arising from the sale of said premises, after the payment of the costs and disbursements of this action, be distributed to those thereunto entitled to the interest of the parties as set forth in the foregoing report.
All of which is respectfully submitted.
The decree of the trial Judge was as follows:
This matter com'es before me on exceptions by both parties to the report of J. C. Townsend, Master. The facts will be found in said report.
Exception No. 1 of the defendant pertains to what was evidently an oversight on the part of the Master as to a finding of fact, which fact can have no particular bearing on the issues.
Exception 3, subdivision (a), (b), and (c) of the defendant, is the only one meriting serious consideration. If rent accrued prior to Sterling Wright’s death in 1918, the respective representatives of the several decendants would be liable and not the defendant, Anna Wright. Huff v. Latimer, 33 S. C. 259, 11 S. E. 758.
B'ut the defendant is bound by the order of this Court wherein I refused to make the personal representative of Sterling ‘Wright a party, and allowed the defendant to set up a claim for any improvements made by Sterling Wright during his. exclusive use of the premises. Under that order, from which there was no appeal, rents and improvements were to be considered by the Master during the period of Sterling Wright’s exclusive possession, from July 4, 1909, to August 30, 1918. However, as to any rent prior to that under Huff v. Latimer, supra, there could be no accounting; and, even if there were, a balance, as the Master found, would have to be struck between the improvements and such rent for that period. The testimony is very vague as to when the house was remodeled, but it wras safe to conclude that same was done prior to 1909.
The Master’s report, considering the uncertainties arising from the testimony, and except for the error of fact noted in exception 1, correctly finds on all the issues.
Another matter which was heard before me at the same time as the above appeal came upon the petition of the de- ■ fendant to have a homestead set aside out of the proceeds of the sale before any part of such proceeds are applied to the payment of the rents due by her' to the plaintiff.
In their verbal return in open Court the plaintiff’s attorneys stated that they did not contest this right to homestead, but that such right was prematurely asserted in that defendant was only entitled to claim a homestead in the amount found to be her distributive share after an accounting. So much is true. Small v. Usher, 77 S. C. 115, 57 S, E. 623. But the Court can ascertain whether she is entitled to $1,000 homestead exemption, not in the undivided interest, but in the proceeds of her interest after division, and to the extent of such interest, not ovef $1,000, allow her to retain so much of the rent money as will offset the value of her one-third interest, which value will be determined at the sale.
It is therefore ordered: First, that the Master’s report be, and the same is hereby, confirmed; second, that the defendant, Anna Wright, be allowed to retain as homestead out of the rent money due by her to plaintiff so much as her, one-third interest may bring at the sale, not exceeding the sum of $1,000.
Defendant’s exceptions were as follows:
1. The defendant, Anna Wright, excepting to the order of his Plonor, the County Judge, alleges that he erred in holding and finding .as follows: “Exception No. 1 of the defendant pertains to what was evidently an oversight as to a finding of fact, which fact can have no particular bearing on the issues.” Whereas he should have held, as pointed out by the defendant’s first exception to theMaster’s report, that inasmuch as Sterling Wright left of full force and effect his last will and testament, by which the testator devised his interest in the premises in question to the defendant, Anna Wright, one-third of the premises in question were vested in the defendant, Anna Wright, to the exclusion of other heirs at law of Sterling Wright.
2. Because his Honor erred in holding as follows: “But the defendant is bound by the order of this Court wherein I refused to make the personal representative of Sterling Wright a party and allowed the defendant to set up a claim for any improvements made by Sterling Wright during his exclusive use of the premises. Under that order, from which there was no appeal, rents and improvements were to be considered by the Master during the period of Sterling Wright’s exclusive possession, from July 4. 1909, to August 30, 1918. However, as to any rent prior to that under Huff v. Latimer, supra, there could be no accounting, and even if there’ were, the balance, as the Master found, would have to be struck between the improvements and such rent for that period. The testimony is very vague as to when the house was remodeled, but it was safe to conclude the same was done prior to 190.9”—the error in the foregoing extract being in his Honor’s holding that because the Court had, by a previous order, refused to make the personal representative of Sterling Wright a party defendant to the action, and had allowed the defendant to set up a claim for any improvements made by Sterling Wright during his exclusive use of the premises, the defendant was precluded from denying liability for tw.o-thirds of the rental value of the premises since the death of Julia Peets, mother of the plaintiff.
3. Because his Honor erred in construing his order of July 29, 1919, as holding the defendant, Anna Wright, liable for two-thirds of the rental value of the premises in question, and in holding said order as res adjudicata of the question raised by the defendant’s third exception to the Master’s report, when he should have held that the order of July 29, 1919, merely adjudicated that it was not necessary to have Sterling Wright’s personal representative made a party to the action, and, in this connection, his Honor should have held that the plaintiff’s failure to appeal from the said order of July 29, 1919, precluded her from obtaining judgment for said rents and profits against the personal representative of Sterling Wright, and also the defendant, Anna Wright, individually.
4. Because his Hpnor erred in overruling the defendant’s third exception to the Master’s report, which was as follows: “(^) Because the 'Master erred .’in rendéring judgment in favor of the plaintiff for the sum of $1,142.58, when said judgment should have been for only $518, on the accounting between the parties, if for anything”.—and in sustaining the Master’s report, when he should have held that the defendant, Anna Wright, was liable only for the rental value of the premises since the death of her husband, Sterling Wright, which took place on the 30th of August, 1918, as shown by the Master’s report.
Peaintiee’s Exceptions.
1. Because the one-third interest in the premises owned by the heirs of Sterling Wright is chargeable with one-third of the costs of taxes, insurance and repairs upon the property; and his Honor erred in crediting the said interest with the full amount thereof.
2. Because his Honor erred in holding that the defendants are entitled to- receive one-third of the proceeds from the sale of the premises; whereas he should have held that the defendants are entitled to receive only so much of the one-third of the proceeds as remains after adjustment of the equities in accordance with the findings upon the accounting.
3. Because his Honor erred in holding that a claim of homestead by a co-tenant arrests the Court of Equity in the adjustment of the equities among the co-tenants in the common property and compels it to pay over the proceeds of the legal interest of such co-tenant in the property; whereas he should have held that the homestead exemption reaches only such portion- as remains to- the co-tenant after adjustment of the equities.
cites: Personal representative of defendant's husband should have been made a party, action being brought within a year after his death: 49 S. C. 41; 83 S. C. 165; 33 S. C. 601. Pact of such testacy not appearing in the complaint it was necessary to allege it in the answer: 69 S. C. 40; 72 S. C. 39. Claim for rent passes upon death of the landlord to his executor or administrator, not to his heirs; 33 S. C. 259; and claim against him likewise: 205 W. Rep. 522. Plaintiff and defendant became co-tenants only on the death of defendant’s husband: 109 S. C. 451; Only when occupying tenant is allowed compensation for improvements placed thereon by his ancester that he is accountable for the use and occupation by such ancester: 81 S. C. 282; 1 A. L. R. ' 1189. Claim for rents will not be allowed to exceed claim for improvements: 81 S. C. 282; 5 Rich. Eq. 301; Chev. Eq. 213; 1 A. L. R. 1221. Statute of Limitations runs against claim for rent: 81 S. C. 282; 53 S..C. 350; 5 Rich. Eq. 263; 15 S. C. 308. Widow entitled to homestead against debts of husband: 29 S. C. 508; 32 S. C. 439; Art. Ill, Sec. 28, Const 1895: 1 Civ. Code 1912, Sec. 3714.
cite: Right of partition paramount to right of homestead: 26 S. C. 227. Co-tenant’s share subject to accounting for rents and profits: 81 S. C. 288; 77 S. C. 115; 16 S. C. 218. Homestead cannot be allowed: 14 S. C. 20. Except out of proceeds from sale: 77 S. C. 115; 104 S. E. 320.
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
