Opinion
Rehearing Denied April 3, 1962.
Hearing Granted May 2, 1962.
Opinion vacated 24 Cal.Rptr. 856, 374 P.2d 824.
Walch, Griswold, Braden & Dittmar and Herbert M. Braden, Hanford, for appellants.
Brown & Tibbs and Stanley H. Tibbs, Hanford, for respondents.
CONLEY, Presiding Justice.
Plaintiff, Oscar Dimmick, and his wife sued his brother, Clarence Dimmick, and his wife, to quiet title to farm property in Kings County. The defendants set up the claim in their answer that Clarence Dimmick is the owner of an undivided one-half interest in the land and pray that his title be quieted. The trial court found that the two brothers as joint tenants were owners of the property and quieted the title of Clarence Dimmick to an undivided one-half interest but without requiring any contribution by him for advances made by Oscar Dimmick for the benefit of the coowners during the preceding 22 years.
On January 13, 1934, Sylvester C. Dimmick and Lizzie E. Dimmick deeded the land to their three sons, Jonathan M. Dimmick, Clarence D. Dimmick and Oscar R. Dimmick as joint tenants; the reasons assigned for giving the deed were that the sight of Sylvester had been failing and that his financial condition was not good, Om May 18, 1934, Jonathan M. Dimmick in turn executed a joint tenancy deed to his two brothers. For several years Oscar and Clarence carried on farming operations on the land and maintained a joint bank account. They bought a house for their parents in Hanford, taking the deed in the name of Clarence Dimmick. On June 16, 1937, Oscar's check on the joint account for the purchase of a tractor was returned by the bank with the notation that the account had been closed. Oscar went to see his brother, and Clarence admitted to him that he had withdrawn the entire balance in order to make a payment on the house which the two sons had bought for their parents. According to Oscar, Clarence then stated that he would not have anything more to do with the ranch, that he was not going to put any money or effort into the venture and he refused to take care of any further obligations; if Oscar wished to carry on he could do so with the full permission of Clarence, but he was finished with it; Oscar understood that there was a total abandonment of the property by Clarence and told him 'O.K.' that he was out, and he would carry on alone. However, Clarence says that he never intended to give up his title to the land but only wished to afford Oscar the opportunity to farm the property on condition that he would pay the expenses of operation and retain the profits.
From that time Oscar farmed the property and cared for it at his sole expense. He paid off the encumbrance, financed the annual growing of crops, and improved the land by fencing it, painting the house and adding a room, cupboards and other fixtures; he also drilled three irrigation wells besides domestic wells, installed two electric motors, one turbine pump and one centrifugal pump, added pipelines, a tank tower and a 2500-gallon tank, a pressure system and a new electric hot water tank; he built a 24- by 48-foot shop and garage, scraped the land and put in cement headgates. The cost to Oscar of the improvements was more than $10,000, part of which was paid from money he earned elsewhere than on the ranch. During the time that he occupied the land, Oscar signed an oil lease; Clarence also executed it later, but all of the money derived from the lease was retained by Oscar.
After 1937 Clarence never contributed anything toward the trust deed payments, improvements, taxes or operations of the ranch, and he never demanded an accounting of any kind. However, Clarence did keep some of his empty beehives on part of the land, without objection by Oscar. Clarence never appeared to do anything else to indicate that he claimed any interest in the ranch until May of 1958 when one Russell Barlow offered to buy the property, together with all the farm equipment accumulated by Oscar, for the sum of $80,000.
The proposed sale was considerably delayed, and it finally failed because Clarence wanted half of the gross price without deduction for the expenses of the sale or for the value of the personal property which had been accumulated wholly by Oscar.
The findings of the court include the following: that on the date of the filing of the action, June 9, 1959, the real property stood of record in the names of Oscar R. Dimmick and Clarence D. Dimmick as joint tenants, and that they were on said date the owners of said real property as joint tenants; that Oscar R. Dimmick was in '* * * exclusive possession of most of said real property since 1937, and that said possession has been with the express consent of Clarence D. Dimmick'; that during the period from 1937 to the date of the filing of the action Clarence D. Dimmick has used '* * * a part of said real property for the purpose of storing thereon certain personal property belonging to him, and said use has been under a claim of right so to do'; that since 1937 Oscar '* * * during said period * * * Clarence D. Dimmick has not asked for or received from Oscar R. Dimmick, and Oscar R. Dimmick has not offered or provided to Clarence D. Dimmick, a report or accounting of or for the income, expenses, receipts or proceeds of the farming operations carried on by Oscar R. Dimmick on said real property';
that during said period Oscar has paid all taxes levied or assessed against the real property and that during said time said property was assessed to Clarence D. Dimmick and Oscar R. Dimmick.
'* * * on the records of the assessor of the County of Kings in which county said real property is located.
'That Oscar R. Dimmick has never done or performed any acts or things to exclude Clarence D. Dimmick from said real property, and until a date subsequent to May 16, 1959, the said Oscar R. Dimmick has never done or performed any acts or things sufficient to indicate or give notice to Clarence D. Dimmick of any claim on the part of Oscar R. Dimmick to own the entire interest in said real property or intent to exclude Clarence D. Dimmick from the ownership of the latter's interest therein.
'That at all times since January 13, 1934, and continuing until the day on which this action was filed, Oscar R. Dimmick acted with respect to said real property in a manner consistent with the continued ownership of an undivided interest therein by Clarence D. Dimmick.
It is a commonplace that in an action to quiet title based on adverse possession the burden is upon the claimant to prove every necessary element: (1) The possession must be by actual occupation, open and notorious, not clandestine; (2) It must be hostile to the defendant's title; (3) It must be held under a claim of title exclusive of any other right, as one's own; (4) It must be continuous and uninterrupted for a period of five years or more prior to the commencement of the action; and (5) The taxes must be paid by the claimant. (Unger v. Mooney, 63 Cal. 586, 595, 49 Am.Rep. 100.)
As Oscar and Clarence were cotenants, holding the land in joint ownership, the principle stated in Johns v. Scobie, 12 Cal.2d 618, 623-624, 86 P.2d 820, 121 A.L.R. 1404 is applicable:
'It is a fundamental rule that each tenant in common has a right to occupy the whole of the property. The possession of one is deemed the possession of all; each may assume that another in exclusive possession is possessing for all and not adversely to the others; and consequently one tenant in common does not, merely by exclusive possession, gain title by adverse possession against the others. Such possession will be presumed to be by permission and rightful, unless notice is brought home to the others that it has become hostile.'
In the circumstances developed by the record, the burden was upon plaintiffs to prove an ouster, and the trial court has found that no such proof was made.
Miller v. Myers, 46 Cal. 535, 539 contains the following statement:
'[I]t is clear that an adverse holding and claim of title do not, of themselves, constitute an ouster. The tenant, out of possession, has a right to assume that the possession of his cotenant is his possession, until informed to the contrary, either by express notice or by acts and declarations, which may possibly be equivalent to notice under certain circumstances. But until he has notice, either actual or constructive, in The trial court viewed the facts as favorable to the defendant on the issue of joint ownership of the land, and there is ample evidence in the record to support the finding.
The question remains, however, whether the court was correct in not imposing upon the defendants a requirement that they make contribution for their just share of the monies advanced by Oscar for taxes, the payment of encumbrances and the improvements.
In 18 Cal.Jur.2d, Equity, § 30, pp. 190-191, is the following discussion of one of the fundamental requirements of equity jurisprudence:
'Another basic maxim of equity jurisprudence that has not been codified is that he who seeks equity must also do equity. This means that a court of equity will not grant relief to a plaintiff who has invoked its interposition and assistance, regardless of either the nature of the controversy or the character of the relief sought, unless the plaintiff has acknowledged and conceded, or will admit and provide for, all the equitable rights, claims, and demands which may be justly asserted by the defendant, where such rights or demands grow out of or are necessarily involved in the subject matter of the controversy. The maxim stems from the paramount principle that equity is, peculiarly, a form of conscience; and accordingly a court of equity can, and in fact often does, refuse to entertain a plaintiff's petition for relief when the facts therein reveal that he himself should be required to do, or to offer to do, equity before the court can in good conscience allow him the relief he desires. Moreover, if such facts disclose that the court should not grant him the relief he seeks without requiring him to do equity himself, it is immaterial that the defendant has misconceived his rights, or that he has failed to submit a prayer for relief in his own behalf.'
In Collester v. Oftedahl, 48 Cal.App.2d 756, 760-761, 120 P.2d 710, the rule is discussed as follows:
'It is a fundamental principle of law applicable to equitable proceedings, that one who seeks equity may be required to do equity, with respect to the subject matter involved, before relief may be awarded * * *. 2 Pomeroy's Equity Jur., 5th ed. 1951 Secs. 385, 386. In the text last cited, the principle referred to is expressed as follows:
'Whatever be the nature of the controversy between two definite parties, and whatever be the nature of the remedy demanded, the court will not confer its equitable relief upon the party seeking its interposition and aid, unless he has acknowledged and conceded, or will admit and provide for, all the equitable rights, claims, and demands justly belonging to the adversary party, and growing out of or necessarily involved in the subject matter of the controversy. * * * The court will give the plaintiff the relief to which he is entitled, only upon condition that he has given, or consents to give, the defendant such corresponding rights as he also may be entitled to in respect of the subject of the suit."
The leading case of O'Brien v. O'Brien, 197 Cal. 577, 584-585, 241 P. 861, 864, has this to say about the equitable maxim:
'Unquestionably defendant is invoking a well-recognized principle in equity jurisprudence, 'He who seeks equity must do equity.' This is one of the most familiar maxims of equity. It means that the court will not confer its equitable relief upon one seeking its interposition and aid--'unless he has acknowledged or conceded, or will admit Cox v. Hughes,Holland v. Hotchkiss,
(See also Dool v. First Nat. Bk., 207 Cal. 347, 351-353, 278 P. 233; Richman v. Bank of Perris, 102 Cal.App. 71, 83, 282 P. 801; and Ohanian v. Kazarian, 123 Cal.App. 196, 11 P.2d 42.)
It should be noted that defendants by their answer demand affirmative relief; they ask that Clarence's title be quieted to an undivided one-half of the property. As is said in District Bond Co. v. Pollack, 19 Cal.2d 304, 307, 121 P.2d 7, 9:
'A party who requests equitable relief must satisfy the equitable claims interposed by the opposing party. [Citing cases.] The trial court could not quiet appellant's title to the property without protecting the interests of respondent therein. [Citing cases.]'
If it be contended that this specific relief was not mentioned in the pleadings, it should be remembered that 'In a contested case the plaintiff may secure relief greater than that prayed for.' (Dicker v. Bisno, 155 Cal.App.2d 554, 558, 318 P.2d 159, 162.)
The plaintiffs pray '* * * for such other and further relief as to equity shall seem meet, * * *' and the defendants ask '* * * for such other and further relief as to this court may seem just and proper, * * *'
"Under a prayer for general relief in an equitable proceeding * * * the court may grant any relief conformable to the case made by the pleadings and the evidence although it may not be the relief asked by special prayer.' Knox v. Wolfe, supra, 505, 73 Cal.App.2d 494, 167 P.2d 3.' Geller v. Anolik, 127 Cal.App.2d 21, 27, 273 P.2d 29.
Counsel for plaintiffs offered evidence as to some of the expenditures made by Oscar to protect the property and improve its value. The objections made by the defendants were overruled, but the court noted that the evidence was being received for a limited purpose only, to show whether there was hostility between the two brothers during the period in question. Finally, the court stated that as it understood the situation, the plaintiffs based their claim to title solely upon adverse possession. Counsel for the plaintiffs said, 'That's correct.' The court said, 'It is agreed, then, that the sole issues in the case are whether Plaintiffs are the owners of the land in question by reason of adverse possesion [sic] for either a period of twenty years or five years.' And counsel for the plaintiffs and appellants said, 'That's correct, * * *' It would seem that counsel for the appellants only meant that his clients did not base their claim to the whole property on estoppel or parol gift or any theory except adverse user. It would be stretching the meaning of the language too far to conclude that the plaintiffs intended to waive all right to contribution.
As the duty of doing equity is based upon the chancellor's conscience, it should be conceded that it is doubtful, to say the least, whether the court could be committed to a course of action lacking in equity no matter what the stipulations or concessions of counsel might be. We believe that an inescapable duty rests upon the court to do what is just and right in connection with the relief afforded in an equitable suit, and neither the trial judge nor this court can shut its eyes to the requirements of that duty. If we were to affirm the judgment without insisting that equity be done, it would follow that there could be no recovery by Oscar Dimmick at a later time for any substantial share of the contributions made by him to protect and improve the property. The two-year Statute of Limitations Willmon v. Koyer,
Booth v. Hoskins, O'Brien v. O'Brien, Shimpones v. Stickney, Weber v. City of San Francisco, Couts v. Cornell, Holland v. Hotchkiss,The case must be remanded to enable the trial court to determine the balance of contribution which Clarence Dimmick should make to his plaintiff brother in order to do equity. This amount, when ascertained, should be declared a lien against the interest of the defendants in the real property.
Buttram v. Finley, 73 Cal.App.2d 536, 166 P.2d 654 is instructive as to further proceedings. There the judgment was reversed and the lower court directed to render judgment in favor of the plaintiffs, quieting their title to an undivided one-half interest in the real property as previously determined on appeal, the cause being remanded for trial as to the issues of partition or sale of the property and the determination of all liens and legal allowances to be charged against the shares of the respective parties. In the opinion it is said at pages 544-545, 166 P.2d at page 658:
'The question of the respective rights of tenants in common in partition suits, to the benefit of the enhanced value of land on account of improvements, and of the right to offset the same by rents and profits derived, depends upon the facts of a particular case. It involves the questions of good faith, consent of parties, nature of the improvements, the source and amount of rents and profits, and many elements which do not appear to have been considered in either the pleadings or proof in this case. No findings were adopted on any such issues. On the theory and finding that the plaintiffs have no title in the property, the court merely held that they were not entitled to partition. It also appears that the land is subject to certain specified mortgage liens. We assume the question of the right to partition, and the allowances incident thereto, have not been determined by the trial court on their merits.
'In partition suits between tenants in common, the subject of allowances of enhanced value of the real property by virtue of alleged improvements thereon, and of the right to offset such allowances, if any, by the rents and profits derived, has been frequently considered by the courts and text writers. Ventre v. Tiscornia, 23 Cal.App. 598, 138 P. 954; Gerontopoulos v. Gerontopoulos, 20 Cal.App.2d 261, 66 P.2d 724; McWhorter v. McWhorter, 99 Cal.App. 293, 278 P. 454; Goodenow v. Ewer, 16 Cal. 461, 76 Am.Dec. 540; Pico v. Columbet, 12 Cal. 414, 73 Am.Dec. 550; 40 Am.Jur., pp. 32-44, §§ 39-51; 47 C.J. pp. 469-476, §§ 497-515; 1 A.L.R. 1189, Note; 122 A.L.R. 234, Note.'
Although, as suggested in the foregoing opinion, it would be extremely difficult, if not impossible at this time, for us to lay down a complete and stringent formula for the ascertainment of any balance which the In the first place, the court may determine from the evidence that the parties agreed to certain rights and liabilities which should be enforced in equity.
There seems to be no serious doubt that
'A cotenant who has paid a debt or obligation for the benefit of the common property, who has discharged a lien or assessment imposed on it as a common burden, who has expended money in redeeming the property from sale, or who has incurred necessary expenses in caring for the property is entitled to recover from his cotenant, who has received the benefit of such payment, a proportionate share of the amount paid, and the decree of partition may properly provide that the share of the latter shall be charged with a lien therefor.' (37 Cal.Jur.2d, Partition, § 20, pp. 439-440.)
There is testimony in the present record that the plaintiff has paid taxes throughout the years of his occupancy of the property, that he has satisfied in part the debt secured by trust deed on the real property at the time of original acquisition by plaintiffs and defendants. Certainly, a contribution should be made for these expenses and any similar expenses that may be developed by further testimony.
In Ventre v. Tiscornia, 23 Cal.App. 598, 604-605, 138 P. 954, 956, it is said:
'The necessity for the improvements, as has already been shown, was established by the uncontradicted testimony of Tiscornia. The plaintiff admittedly shared in the increased rentals resulting therefrom, and therefore, we think, was chargeable with his share of the cost of the improvements, even though it be assumed that the evidence shows they were made without his consent, express or implied. While at common law a tenant in common could not claim contribution in an action at law for necessary improvements made upon the common property without the consent of a cotenant, nevertheless, inasmuch as an action for partition was essentially equitable in its nature, a court of equity was required to take improvements into account when decreeing partition, and to award to the cotenant in possession, who had necessarily and in good faith improved the common property and enhanced its value at his own cost, such equitable compensation as would leave only the value of the estate without the improvements to be divided among the tenants in common. This relief was granted in actions in partition in keeping with the familiar principle of equity jurisprudence which requires that one who seeks equity must do equity. The rule in this behalf has been adopted and applied with but rare exceptions in every jurisdiction where the action for partition is considered as one calling for equitable interposition and relief. Therefore it may be safely said that the rule of to-day generally accepted and settled by a host of harmonious authorities, is that a cotenant, seeking partition of the common property at the hands of a court of equity, will be granted relief only upon the condition that the equitable rights of his cotenant will be respected and protected. Accordingly it has been uniformly held that where it is shown that, one cotenant in common has, in good faith, with or without the consent of his cotenant, expended money in making permanent improvements which were necessary to the preservation of the common property, partition should not be decreed without first counting the cost of such improvements and making a suitable allowance for the same.'
It should be noted in connection with improvements that are necessary and increase the value of the land, that it is the enhancement in value of the property rather than the original cost which is important. The In McWhorter v. McWhorter, 99 Cal.App. 293, 296, 278 P. 454, 455 the court makes the following statement:
'It is a recognized rule that one tenant may not maintain an action against his cotenant who is in sole possession of the property to recover rent for the cotenant's occupancy of the property, or for profits derived from the property by means of the occupant's own labor. (7 Cal.Jur. 350, §§ 18, 19; 2 Tiffany on Landlord and Tenant, 1879, § 312; Airington v. Airington, 79 Okl. 243, 27 A.L.R. 182, 192 P. 689; 27 A.L.R. 190 (note); Plass v. Plass, 122 Cal. 3, 11, 54 P. 372; Pico v. Columbet, 12 Cal. 414, 419, 73 Am.Dec. 550.) Not even in an equitable action for accounting may one tenant maintain an action against his cotenant in the exclusive possession of the property for rents or the profits of his own labor. (Howard v. Throckmorton, 59 Cal. 79, 89.) The same rule will prevail in an action for partition between cotenants.'
But there is a corollary which in good conscience should be applied in this case. As an offset against the amount of contribution which the court finds that the defendants should make by reason of the payment of taxes, the elimination of liens and the effectuation of improvements on the property by the plaintiffs, some allowance for use value of the property during the long time that plaintiff has been in possession should be made for the benefit of the defendants. In 51 A.L.R.2d 388, as part of an extensive note on accountability of cotenants for rents and profits or use and occupation, it is said on page 454:
'The later cases amply show that when, in a suit for partition or a sale for division, or other proceeding between cotenants in equity or in which equitable powers may be exerted, a cotenant who has been in possession or use of the premises seeks to obtain contribution respecting improvements made, or amounts expended in protection or preservation of the property, the court, as incidental to the granting of such relief and by way of adjusting the rights of the parties, may charge the claimant, defensively, with at least a part of the reasonable value of his occupancy or use, and in some cases may hold him accountable for profits realized from the premises, even though he could not otherwise be required to account or be held liable respecting any of such benefits.'
Section 19 of the same extensive note, beginning on page 455 summarizes a rule as follows:
'Among the later cases various instances have occurred in which cotenants invoking the jurisdiction of an equity court to obtain contribution for maintenance or protective expenditures on the common property have been subjected to defensive allowances of the whole or a proper proportion of the reasonable value of their occupancy or use.'
In support of these summarizations, cases are cited from other jurisdictions, including Alabama, Kentucky, Michigan, Minnesota, Mississippi, Missouri, Texas, Washington, Wisconsin and Canada, and it would seem a wise and equitable rule to require some such adjustment in the instant case.
There should also be an adjustment in favor of defendants for the monies received by plaintiffs from the oil lease.
Interest on specific sums may be allowed.
We mention the foregoing general principles as guides in the hearing of this matter, repeating that we believe it impractical and unwise to set down any ironclad rules which would narrowly restrict the court in the weighing of whatever evidence may be presented and in finally determining the equities of the parties. The judgment is reversed and the cause remanded for retrial to the end that the court may make provision in its decree for contribution by defendants and require that whatever balance shall be equitably due to the plaintiffs from the defendants shall be made a lien on their interest in the property.
BROWN and STONE, JJ., concur.