Summary
Appeal from the chancery court of Grenada county.
Hon. I. T. Blount, Chancellor.
Suit by Alvin Lake against J. C. Perry.- Prom a decree in favor of appellee, appellant appeals.
The facts are: Appellant filed a hill in chancery to set aside a voidable deed to appellee, made during appellant’s minority, and praying an accounting. This case was appealed at a former term of the court from a decree dismissing the hill, and was reversed. 95 Miss. 550, 49 South. 569. Thereafter the chancellor entered a decree sustaining appellant’s bill, setting aside the voidable deed, and ordering an accounting. The commissioner stated an account, referring back to the court the question-of whether Perry, the appellee, was entitled to services -for managing the partnership property. The court allowed the item as an offset against the claim for rent, and from this judgment comes this appeal.
The sole question presented by this record is whether the learned court below-erred in allowing to appellee this offset for alleged personal services in “managing” this property during the years of his possession.
This question should be answered in the affirmative for two reasons: (a) Because there is nothing in the record upon which this allowance can be based, (b) Because, under the law, such an allowance is not sustained by the authorities.
In the next -place, even did the facts of this case warrant this allowance, the law is against the appellee. The rule in such matters, as-stated -in a number of' authorities, of which the following are .some, is .that appellee is held down to such taxes-as have been paid by'him, and such improvements as add to and enhance the vendible value •of the property. These were allowed by the commissioner, and no objections are made to his report. See, in this connection generally, Massey v. Womble, 69 Miss. 347; Hicks v. Blakeman, 74 Miss. 459; Hudson v. Strickland, 58 Miss. 193; Walker v. Williams, 84 Miss. 392.
The rule in actions of ejectment, as established by the legislature, is likewise such as to exclude any such allowance as was made in this case. Sections 1848, 1849, Code 1906.
Having failed then to find any authority or precedent upon which the learned court below could have based its ruling; we presume the court will consider whether it be right on principle. A review, then, of the entire case, as presented by the whole record — the one on the former appeal and the subsequent developments as presented by this record — will be helpful.
Appellant and others were cotenants of this property. All of the owners joined in a deed to appellee. Appellant, being a minor at the time, filed this bill to set aside his deed, which, as stated, was done. Thereupon this accounting was ordered, and appellant allowed to recover his rents, etc., against which appellee was allowed to offset taxes, etc., and this claim for alleged personal services. Appellee’s possession of this property was at all times adverse to appellant; there is no agreement, express or implied, whereby appellee can seek to claim for these services, and unless he is entitled to them as a pure matter of law, then the learned court below is in error in making the allowance. Does the law, then,.warrant this ruling?
In the case of Shipp v. McKee, 80 Miss. 746, the court gives us this rule, applicable here: “ The effect of the disaffirmance by her (a minor) is to render the conveyance void ab initio, and to entitle her to charge the purchaser for rents during the whole time that he occupied the property, claiming under her deeds. But the defendant by the conveyance acquired the title of Mrs. Hubbard, who was a cotenant with her, and his liabilities and rights are therefore to he tested by the rules governing cotenants.” Quoting from French v. Me Andrew, 61 Miss. 192.
Tested by this rule, let us see whether this allowance is warranted by the law.
In 17 Amer. and-Eng. Ency. Law (2d Ed.), page 688(6), under the heading: “Personal Services,” we find this language: “Joint tenants or tenants in common are not entitled from each other for services rendered in the care and management of the common property in the absence of a special agreement or mutual understanding to that effect.”
Says the supreme court of Florida, in Fuller y. Fuller, 2 So. 426: “Compensation for individual services in managing or taking care of the joint property is never awarded to a cotenant, except as a result of a direct agreement to that effect, or unless from all the circumstances of the case the court is • satisfied of a mutual understanding between the parties that the services rendered by one should be paid for by the other. Freem. Cotenancy, § 260.”
This language is quoted and approved by the same court in the later case of Anderson v. Northrop, 33 So. on p. 423; see also, Henderson v. Chaires, 17 So. 574; Sharp v. Zeller, 38 So. 449; Hamilton v. Conine, 92 Amer. Dec. 724; Bedfield v. Gleason, 15 Am.- St. Bep. 889. .
We submit, therefore, that the learned court below is in error on this point; that a decree here should'be entered for appellant allowing him the rents, etc., found by ■ the commissioner, with the interest allowed by the court below, against which there should be offset the amount expended by the appellee for taxes and the improvements, as found by the commissioner — thereby disallowing this claim for alleged personal services.
My friend, ITorton, in his brief, is far from fair when he makes the statement that the commissioner, “then certified to the court two questions, upon which he heard no proofs and upon which he expressed no opinion.” The proof in this point was exactly the same as on all others; the report of the commissioner, in this cause was an agreed one by and between appellant’s counsel and myself. Every item in the same was based ón statements made by Perry, over which appellant’s counsel and I consulted, culled, reduced and agreed upon, except the two questions certified up by the commissioner as questions of law and this form of this report was also agreed upon between us, no such objection is pressed by counsel, but the same is stated and quite unnecessarily. No claim was allowed Perry for. any improvement, however permanent, which did not go directly and immediately to increasing the rent year by year as each year, taking into consideration the cropping year shows; indeed, Perry pressed no other items. It is hardly fair now to state that no proof was taken when everything was, and of necessity had to be based on Perry’s statement. These items were taken from the books of Perry as he charged them at the time to this plantation, charging his services in each month against the whole (this twenty-acre claim of Lake is a part of a track of one hundred and sixty acres bought by Perry from the Lakes, because contiguous to a large farm owned by him), and this charge was the proportionate part this little strip, or one-eighth of the one hundred and sixty acres would bear to the whole and Lake got the benefit of one-eighth of the whole income, there being no other way by which Perry could come in any way close to what was due this erstwhile infant. Perry made an exact report, a true report, based on a certainty, since the charges were made at a time, even had Perry been inclined to cheat, when Perry knew nothing of the claim of appellant. Both court and counsel for appellant expressed surprise, that so much should have been realized on so small a parcel of land, during the time, which covered four bad crop years and one complete overflow; nor did counsel have the slightest, at that time, idea of appealing, but not being in communication with client made all due exceptions and appellee, thinking the whole matter settled, tendered the amount found due but counsel’s client wished it pushed to a finish, which he has a complete right to demand.
The principle items allowed Perry are for building a fence to inclose a large pasture, which was rented to neighbors and tenants and-for draining a slough, which added about twelve acres to the cultivatible land; and while not more than one-hálf of this whole land is now under cultivation, Perry made no claim that more than the appellant’s, share remained open and uncultivated by him, but reported from his books, and absolutely correct account and this shows that after paying all' expenses allowed him netted more than fifteen per cent during five out of nine years of the hardest cropping years we have had. Now the amount allowed Perry for his services is a few dollars more than the interest on the claim of the appellant, but Perry made no objections as the sum was not worth it. Had Perry not given his personal attention to this seven hundred and eighty-acre farm, he would have been compelled to employ an overseer, at a larger wage than he charged against the property for his own services, all the lands being worked by share croppers, it required the constant supervision of some one to see that full work was done.
I have gone fully into this part' of the matter so that with the case of Lake v. Perry heretofore decided by this court, the court may see fully where the justice of the case is and do justice by all.
Syllabus and headnotes are prepared by the reporter or publisher, not the court, and are not part of the opinion.
