Opinion
No. 7338
Decided February 27, 1951.
Partition — Duty to account for rents and profits — Coparcener in possession — Assignees of coparcener made parties on motion — Not liable for accounting, when.
APPEAL: Court of Appeals for Hamilton county.
Messrs. Franks Franks and Messrs. Scanlon Scanlon, for appellee.
Mr. J. W. Brown and Mr. Albert J. Lerner, for appellants.
This is an appeal on questions of law from an order of the Common Pleas Court of Hamilton County directing J. W. Brown, Albert J. Lerner, and Frank A. Lipps to account for rents and profits.
The plaintiff instituted this action on November 11, 1947, praying for partition of certain real estate, cancellation of a certain mortgage, "and all other proper relief." J. W. Brown and Albert J. Lerner were not made parties to the action at that time. On August 24, 1949, an order for partition was issued in accordance with a decree and amended decree theretofore entered. The property not being susceptible of partition in kind, an order of sale was issued on October 6, 1949, and on November 17, 1949, it was returned. On November 22, 1949, a motion to confirm and for an order for deed and distribution was filed.
Thereafter, on November 25, 1949, J. W. Brown and Albert J. Lerner filed a motion to be made parties to the action, on the ground that Frank A. Lipps had, on July 11, 1949, transferred to them all his right, title, and interest in and to any and all claims that he had or might have in this litigation, or to any funds or monies that might be found due him. On the same day, the court entered an order making them parties to receive "upon a final determination of this cause all funds found due to Frank A. Lipps."
On December 30, 1949, the court entered a decree of confirmation and distribution of the proceeds of sale, one of the items of which was a direction to pay to J. W. Brown and Albert J. Lerner the sum of $1,862.74. In this decree it was ordered that "accounting for rents and profits is left for the further order of this court."
On May 7, 1950, plaintiff filed a motion for an accounting of rents and profits, which was granted on July 21, 1950. J. W. Brown, Albert J. Lerner, and Frank A. Lipps were ordered to account for the rents and profits from the premises from November 2, 1944, to December 31, 1949. It is from that order that this appeal was taken.
We have no difficulty in concluding that an accounting of rents and profits among the coparceners is within the jurisdiction invoked by the filing of this petition, and that jurisdiction was continued by the reservation made in the decree of confirmation and distribution.
The duty to account for rents and profits is a duty owing by a coparcener in possession to those out of possession. Section 12046, General Code. It is clear that the order directing Frank A. Lipps to account was correct and it is affirmed.
A different question is presented by the appeal of J. W. Brown and Albert J. Lerner. Neither was at any time a coparcener of the plaintiff. They did not become parties to this action until November 25, 1949, and their only interest was as assignees of the rights of Frank A. Lipps. They did not agree to assume the burden of his duty to account for rents for more than the five-year period as directed by the order appealed from. And as the assignees of Lipps' right they did not become charged with his duty, as a matter of law, any more than the grantee of mortgaged real estate is charged with the duty of paying the mortgage debt in the absence of an express agreement of assumption.
For these reasons, the order directing J. W. Brown and Albert J. Lerner to account for rents and profits is hereby reversed.
Judgment accordingly
HILDEBRANT, P. J., MATTHEWS and ROSS, JJ., concur.