Opinion
17279.
NOVEMBER 14, 1950.
Equitable petition. Before Judge Nichols. Walker Superior Court. August 22, 1950.
Gleason Painter and A. W. Cain, for plaintiff.
G. W. Langford, for defendant.
The petition as amended, praying for an equitable partition of real estate between the plaintiff and the defendant as owners by tenancy in common, for an accounting, injunction, discovery, and general relief, was not subject to the general and special demurrers interposed by the defendant, and it was error to sustain the demurrers and dismiss the case.
No. 17279. NOVEMBER 14, 1950.
Lillie Jones Ballenger filed a petition against Martha Jones Houston, which as amended prayed for the equitable partition by sale of a certain tract of land alleged to be owned by the plaintiff and the defendant as tenants in common, and for an accounting, settlement, injunction, discovery, and general relief. The general and special demurrers to the petition as amended were sustained, and the plaintiff by writ of error seeks a review of the order sustaining the demurrers and dismissing the petition.
The petition as amended in substance alleged: The plaintiff and the defendant inherited from a common ancestor, and own as tenants in common a certain parcel of land. For the past 18 years the defendant has been in possession of the property, receiving the issues and profits of $300 per year, and in 1946 the defendant received $600 from a sale of the timber on said land. The plaintiff did not know until 1949 that the defendant had sold the timber, and it was not until January 1, 1949, that the plaintiff learned "that defendant was claiming to be the sole owner of said land, and was attempting to sell and dispose of the same, and as soon as she learned that her title was being disputed and her rights as a joint tenant in common were being denied by the defendant, she instituted her action to partition said land." (The action was instituted on March 19, 1949.) A fair and equitable division of the land cannot be made by metes and bounds, by reason of the improvements made on the land. Demand has been made on the defendant to pay the plaintiff her part of the rents, issues, and profits after a deduction of taxes. A dispute has arisen between the parties as to the plaintiff's share of the rents and profits and proceeds from the sale of the timber; a complicated account will probably arise; and the defendant is insolvent.
The defendant filed general and special demurrers to the petition. The general grounds of demurrer were: (1) The petition fails to set forth a cause of action; (2) it affirmatively appears that the petition sets forth a stale demand and is barred by the statute of limitations; (3) the petitioner has an adequate remedy at law, and the petition does not disclose any peculiar circumstances existing which render the proceeding in equity more suitable and just than one at law. There were several grounds of special demurrer to the original petition and to the first amendment, which were met by the plaintiff's amendments. The trial judge passed an order sustaining the demurrers and dismissing the action.
"Equity has jurisdiction in cases of partition, whenever the remedy at law is insufficient, or peculiar circumstances render the proceeding in equity more suitable and just." Code, § 85-1501. "Where matter of account against an insolvent cotenant for past profits of the land is involved, and where partition of the premises cannot be made without a sale, equity has jurisdiction to decree partition and account. The element of account and insolvency will give equity jurisdiction." Lowe v. Burke, 79 Ga. 164, 165-66 ( 3 S.E. 449). See also Cates v. Duncan, 181 Ga. 686 (1) ( 183 S.E. 797). If a tenant in common "receives any rent or other profit, or commits any waste, or if he by any means deprives his cotenant of the use of his fair proportion of the property, or if he appropriates all to his exclusive use, or if the property is of such a character as that the use of it must necessarily be exclusive, he shall be liable to account to his cotenant." Code, § 85-1003. "If one tenant in common receives more than his share of the rents and profits, he shall be liable therefor as agent or bailee of the other cotenant." § 85-1004. A court of equity has jurisdiction over matters of accounting where the accounts are between cotenants. § 37-301. "There may be no adverse possession against a cotenant until actual ouster, or exclusive possession after demand, or express notice of adverse possession; in any of which events the cotenant may sue at law for his possession." § 85-1005. Before one cotenant can claim prescriptive title by reason of adverse possession within the meaning of Code § 85-406, 20 years from the beginning of such adverse possession must elapse before the right of the other tenant is barred. § 85-1005, supra; Mitchell v. Gunter, 170 Ga. 135, 144 ( 152 S.E. 466). If one tenant in common receives more than his share of the profits, the statute of limitations does not commence to run in his favor so as to bar an action of account by his cotenant until such tenant begins to hold such surplus adversely to the cotenant, and knowledge of that fact comes to the cotenant. Huff v. McDonald, 22 Ga. 131 (2); Smith v. Smith, 141 Ga. 629 (9) ( 81 S.E. 895); George v. Bullard, 178 Ga. 589 (2) ( 173 S.E. 920). In an equitable action for the partition of land and for an accounting, the defense of laches raised by general demurrer is not well taken when the pleaded facts show that the plaintiff, upon being informed that the defendant, her cotenant, was asserting title to the property and refused to account for the rents and profits, promptly instituted her action for partition and accounting. See Teasley v. Bradley, 110 Ga. 497 (1) ( 35 S.E. 782); Reynolds v. Dorsey, 188 Ga. 218 ( 3 S.E.2d 564); City of McRae v. Folsom, 191 Ga. 272 ( 11 S.E.2d 900).
We have examined the special grounds of the several demurrers, all of which challenged the legal sufficiency of the allegations of fact in certain stated paragraphs of the original petition and the amendments thereto. The special grounds of demurrer which were not met by the amendments to the petition are without merit.
Applying the foregoing principles of law to the petition as amended in this case, it was error for the trial judge to sustain the general and special demurrers.
Judgment reversed. All the Justices concur.