
    Common Pleas Court of Fulton County.
    Elsie Hinderer v. Adolph W. Hinderer, et al.
    Decided September 24, 1932.
    
      Holbrook, Banker & Demwth, for plaintiff.
    
      F. S. and J. M. Ham, for defendants.
   Wolf, J.

The facts in this case as disclosed by the pleadings, statements of counsel and the evidence, are, briefly and in substance, as follows:

This is an action in partition brought by the plaintiff, Elsie Hinderer, who is the wife of the defendant Emil C. Hinderer.

The defendants Emil C. Hinderer and Adolph W. Hinderer, are brothers, and for a number of years prior to October 1st, 1930, said defendants were the owners of the real estate described in the petition; that said defendants were partners doing business' under the firm name and style of the Elmira Hatchery, and which business consisted of the hatching and sale of chicks; that said business was very prosperous and profitable, and the firm had established and built up and created a good will which greatly contributed to the value of the business; that the land without any improvements was of small value; that sometime during the latter half of 1929 the partnership constructed on said real estate a large brick building about 38 by 86 feet to be and which was used by said partnership in its said business, at a cost of approximately $5,000; that said building was constructed with partnership funds; that Catherine Hinderer, the mother of said two defendants, has a dower interest in said real estate; that said building was fully equipped with fixtures and personal property suitable and necessary to carry on their said business; that said real estate and personal property is correctly described and set forth in the petition; that on October 1st, 1930, the defendants Emil C. Hinderer and Adolph W. Hinderer were the owners of said real and personal property and the business therein carried on and the good will of said business.

That October 1st, 1930, the defendants and partners, Emil C. Hinderer and Adolph W. Hinderer, 'entered into a written agreement, a copy of which is attached to the answer and cross petition of the defendant Adolph W. Hinderer.

That said agreement provided, in substance, as follows:

That Adolph W. Hinderer, who will hereafter be referred to as First Party, leased to Emil C. Hinderer, who will hereafter be referred to as Second Party, all his interest in said hatchery and equipment for the period of three years from October 1st, 1930, at an annual rental of $2500, to be paid at the rate of $200 per month for the first eleven months and $300 for the last month; second party to pay all real and personal taxes and keep the buildings and contents fully insured in the names of the then owners. The agreement further provides:

“Party of the Second Part agrees to take possession of said property October 1st, 1930, and to occupy said property continuing for a period of three years.

“It is further agreed that First Party grants for this same period of time the name, Elmira Hatchery, the good will and the business being included in the stated consideration.”

“That Second Party agrees to keep all property and equipment in good and running condition, excepting their natural wear, and that as long as Second Party complies with the conditions as stated in this agreement that Second Party must be left in peaceful possession during the period of time stated, and that' First Party must be left in the same manner,”

That July 8th, 1982, the defendant Emil C. Hinderer, sold and conveyed his undivided one-half interest in and to said real and personal property to the plaintiff, Elsie Hinderer, wife of Emil C. Hinderer, for the stated consideration of one dollar and other good and valuable considerations, subject to the dower interest of Catherine Hinderer and an $8,000 mortgage to The Farmers State Bank, Fayette, Ohio, but that in fact no consideration was paid for said property; that said deed is recorded in Vol. 126, page 343 of the deed records of Fulton county.

That said property is incapable of division or partition by metes and bounds, but that in any partition proceeding the same would have to be appraised and sold.

Plaintiff says that she is the owner of the undivided half of the real estate and personal property described in her petition; that the defendant Adolph W. Hinderer is the owner of the other undivided half of such property, but “that his interest * * * is subject to a certain contract of lease entered into between Adolph W. Hinderer and Emil C. Hinderer, whereby said Adolph W. Hinderer leased an undivided one-half interest in and to said above described real estate and personal property to Emil C. Hinderer for a term of three years com'mencing October 1st, 1930, and ending September 30, 1933.” That Catherine Hinderer has a dower interest in said real estate, and

“Plaintiff further says that Emil C. Hinderer is the husband of this plaintiff and that he is the owner and holder of a contract and lease given by Adolph W. Hinderer to said Emil C. Hinderer and hereinbefore referred to.”

Plaintiff prays for partition and that her interest in the real and personal property may be set off to her in severalty.

The defendant Emil C.' Hinderer answered, admitting the ownership of the property as alleged in the petition; sets up his leasehold interest in the undivided half belonging to Adolph W. Hinderer; the dower interest of Catherine Hinderer and the lien of the mortgagee bank; consents to the partition as prayed for,

“and asks that the lease which he has on the above described real estate and personal property with said Adolph W. Hinderer be retained on said property, and for such other and further relief as he may be entitled in the premises.”

The defendant Adolph W. Hinderer answered and sets up and recites the history relating to the acquisition and development of the property and the rental thereof and attaches to his cross petition a copy of the agreement; alleges that in and by the terms of said agreement the parties thereto impliedly agreed not to partition said premises or personal property during the term of said agreement; that because the rights and obligations of the parties are so involved it would be impracticable and greatly injurious to the interests of the parties to partition the property and that if partition were permitted it would abrogate and annul said contract that by the terms of said agreement the said defendant Adolph W. Hinderer was to be left in the quiet possession of his title to said premises during said leasehold term, and that partition would be in direct violation of said agreement, and prays as follows:

“Wherefore defendant prays that partition be refused; that if it be granted that the said agreement (Exhibit A) be declared and adjudged valid and binding upon all the parties hereto; and that any partition granted shall be under such orders and decrees as shall fully protect the rights of the defendant under said contract; and for all proper relief.”

It seems to me that the above are, in substance, the facts in the case and are all that are necessary to a determination of the questions involved.

Under this state of facts and the law applicable thereto what are the rights of the respective parties ?

Counsel for plaintiff in his brief says:

“The question has been raised by the attorney for the defendants and also by the court as to the right to partition while there is an outstanding lease upon the premises.”

I fear counsel for the plaintiff has misunderstood the position of both counsel for the defendants and the position of the court. At any rate that is not a correct statement of the position of the court and it is not necessary to take up time arguing that proposition. There is no doubt of the right to partition even though there be an outstanding lease of the premises. The half interest of the plaintiff is, of course, not subject to any lease.

It is perfectly apparent from a consideration of this property, its location, its value so far as the mere tangible property is concerned, when taken in connection with the fact that the rental value of an undivided half of the property was considered by the parties to be $2500 per annum, that the real value of this property was considered by the parties to be more than the fair market value of the mere tangible property and that the property consisted of more than the mere tangible property, and it seems to me, from a consideration of the terms of the agreement, that the parties considered and agreed that if an undivided half of one of the owners of the property was to be leased to the owner of the other half, that the only way to preserve the real value of the property during this term, was to keep the property, including its good will, together and not partition it. It is likewise apparent that this rental value was not for the mere tangible property alone, but included good will, as is stated in the agreement.

Counsel for plaintiff, in argument, says that if this property should be put up and sold and if the defendant Emil C. Hinderer should buy it in that such purchaser could say to the defendant Adolph W. Hinderer that I now own this property and do not owe you any rent. It is quite true that if Emil should buy this property at a partition sale that he could have immediate possession of the entire property; but let us assume that the defendant Adolph should buy in the property at a partition sale and that it should be sold, as prayed for by Emil, subject to the lease on the undivided half, could Adolph get possession of the property? No, not at all. At a partition sale are these two defendants placed upon an equality with each other as bidders for the property? They are not.

The case of Shillito v. Pullan et al, 2 Disney, 588, set forth these respective inequalities much better than I can do, and I refer counsel to that case, which is cited with approval Scott v. Waite et al., 12 O. D., 324.

We think the parties to the lease, Emil C. Hinderer and Adolph W. Hinderer had these possible conditions in mind when the agreement was entered into and that that accounts for the terms contained in the agreement.

For the reasons herein stated the partition will be refused and the petition of the plaintiff will be dismissed at the costs of the plaintiff. Exceptions will be noted for the plaintiff and the defendant Emil C. Hinderer; bond in appeal will be fixed at $31)0.

Nov. 2-32, the case was heard on appeal, and the following entry made by the court;

“Decree for defendants denying partition on the ground that the agreement between the owners of the property waives all right to partition for term of the lease entered into by them. Remanded for execution for costs. No written opinion.”  