
    Adamson, Appellant, v. May.
    
      Equity — Partition—Death of defendant — Accounting•—Dismissal of bill.
    
    1. While a plaintiff in partition ordinarily has the right to an accounting of rents and profits, received by a defendant in possession, the right is merely incidental to the principal purpose of the proceeding which is a division of the land in controversy, and when partition becomes impossible as against the person liable to make the incidental accounting, by reason of the termination of his interest, the principal purpose of the suit being impossible of accomplishment, the right to an accounting in the partition proceedings fails.
    2. A bill in equity for partition against a person in possession claiming title as tenant by the curtesy, was properly dismissed where such tenant died after the institution of the proceedings, without barring the right of a claimant to proceed for an accounting in an appropriate action.
    Argued April 26, 1916.
    Appeal, No. 140, Jan. T., 1916, by plaintiff, from decree of C. P. Crawford Co., Sept. T., 1914, No. 2, dismissing bill in equity for partition, in case of Ethel McClintock Adamson v. G-eorge S. May (now James R. Nutting, Executor of George S. May, deceased), and Marion McClintock.
    Before Brown, C. J., Mestrezat, Potter, Stewart and Mosch-' zisker, JJ.
    Affirmed.
    Bill in equity for partition.
    Before Prather, P. J.
    The opinion of the Supreme Court states the facts.
    The court on final hearing dismissed the bill. Plaintiff appealed.
    
      Errors assigned were in dismissing exceptions to various findings of fact and law and the decree of the court.
    
      Albert L. Thomas, with him George E. Gilman, for appellants.
    
      
      Wesley B. Best, with him John. O. McClintock, for appellee.
    July 1, 1916:
   Opinion by

Mr. Justice Mosci-izisicer,

This was an equitable proceeding in partition; the bill was dismissed, and the plaintiff, Ethel McClintock Adamson, has appealed. She averred in her bill that she and Marion McClintock, joined as a defendant, were the only surviving children of M. Florence May, deceased, who was the wife of George S. May, the first named defendant; that M. Florence May died August 15,1908, testate; that she devised and bequeathed all her property, real and personal, to the plaintiff and Marion McClintock; that George S. May elected to take against the will of his wife, and claimed his curtesy rights in all of the real estate of which she died seized; that M. Florence May, while the owner of an undivided three-fourths interest in certain described real estate, on the eve of her marriage to George S. May, and with his consent, executed a deed conveying such interest to the plaintiff and her sister ; that subsequently, in April, 1883, Mrs. May and her husband filed a bill in equity asking that the deed just mentioned be revoked; that a decree of cancellation was entered, but, at the same time, the complainants were directed to execute a conveyance of the property in question to one N. C. McLaughlin, in trust, inter alia, for the sole and separate use of -M. Florence May during her natural life and at her death for the plaintiff and Marion McClintock, in fee; that a deed was executed accordingly; that, thereafter, Mr. McLaughlin resigned as trustee and the court appointed one Henry C. Davis in his place and stead; that subsequently the last named trustee conveyed the property so held by him to M. Florence May, in her individual right, the deed reciting a consideration of $7,000, which consideration the plaintiff alleged “never passed, but that the transfer was made without any consideration whatever.” The plaintiff further averred that “M. Florence May died seized of the remaining undivided one-fourth interest in and to said piece of land......which said interest was acquired by M. Florence May, by purchase, after her marriage to the defendant George S. May”; finally, the plaintiff contended that the land in controversy was held by her and Marion McOlintock as tenants in common, subject only to the curtesy rights of George S. May in the last mentioned undivided one-fourth thereof; she prayed for partition, and an accounting on the part of George S. May.

Marion McOlintock filed an answer in which she admitted all the allegations in the plaintiff’s bill; further, she averred that M. Florence May had caused the removal of N. O. McLaughlin as trustee and the appointment of; Henry O. Davis, “an elderly and infirm person,” in his place and stead, “for the purpose of obtaining a conveyance from the trustee to herself of the remainder of the trust property,” and that, when made, such conveyance was “without consideration and for the purpose of avoiding the restrictions in the trust deed.”

It was suggested on the record that George S. May died August 8, 1914, and letters testamentary on his estate had been issued to one James R. Nutting. The latter, as executor, filed an answer in which he “denied that the plaintiff and Marion McOlintock, at the filing of the bill, held the property therein described as tenants in commofi,” and averred “that George S. May held the sole and entire possession of said property, as tenant by the curtesy, adversely to, and to the exclusion of, the plaintiff and Marion McOlintock, and that their interest was but a remainder interest.” The defendant contended in this answer that M. Florence May died seized of a fee simple estate in the entire property in controversy; that the sole and only interest therein possessed by the plaintiff and Marion McOlintock came to them through and by virtue of the will of their mother and not to any extent under the trust deed recited in the bill of complaint; that the whole interest of the daughters was acquired by them subject to the curtesy rights and possession of the said George S. May, -which he took and exercised from the date of his wife’s death, on August 15,1908, until the time of his own decease, August 8,1914; and “that such possession was open, notorious, exclusive, hostile and adverse to the remainder.” The defendant admitted that N. O. McLaughlin - resigned as trustee and Henry C. Davis was appointed in his stead; that, on or about February 10,1890, the latter trustee conveyed to M. Florence May, inter alia, the land sought to be partitioned, and that the consideration named was $7,000; but he denied that no consideration passed and contended “that M. Florence May purchased the land from Henry O. Davis, trustee, Feb. 10,1890, and from that time, until her death, August 15, 1908, had and enjoyed the sole, absolute, exclusive, hostile, adverse and uninterrupted possession, against Henry O. Davis, trustee, and against the plaintiff and Marion McClintock,......that she (Mrs. May) died seized and possessed thereof, and George S. May, as tenant by the curtesy, continued in said possession until his death, August 8, 1914; that such possession of M. Florence May in her lifetime and of George S. May (thereafter) was held for a period of upwards of twenty-four years with the knowledge and consent of Henry C. Davis, trustee, the plaintiff, and Marion McClintock, and that by reason thereof any right of action of the said Henry C. Davis, trustee, or any remainderman by or through the said trustee, is barred by the statute of limitations.” The defendant further contended “that the right of the plaintiff is barred by her laches, and the said plaintiff having reached her majority many years prior to the death of her mother, and having had knowledge of her mother’s possession and of her erecting permanent improvements upon the land in dispute, she is now es-topped from setting up any claim against M. Florence May, or her husband, as tenant by the curtesy”; “that at the time of filing the bill plaintiff was out of possession, and Geqrge S. May was in the sole, exclusive, adverse and hostile possession thereof, as tenant by the .curtesy, and, therefore, she cannot maintain the bill, as-it was prematurely brought, and......the court sitting in equity is without jurisdiction.” Finally, the defendant admitted “that M. Florence May died testate and that (by her will) all her property was given to the plaintiff and Marion McClintock,” but contended “that George S. May was entitled to the rents collected by him and for which plaintiff asks an accounting, for the reason that he, as.tenant by the curtesy, was entitled to all the rents; issues and profits of said real estate.”

The plaintiff joined issue on the matters alleged in the executor’s answer, and the case came to hearing. On the testimony presented, the chancellor made numerous findings of fact in relation to the quantity and quality of the estate held by M. Florence May, and by George S. May after her death, under and by virtue of the before recited conveyance from Davis, trustee; and thereon he concluded, inter alia, that the first named, as against the plaintiff 'and Marion McClintock, died seized and possessed of an estate in fee, and her husband, having taken against her will, held the whole property as tenant by the curtesy, with remainder in the above named two daughters, “that equity was without jurisdiction to partition the esta.te between the tenant by the curtesy and the remaindermen,” and, for these and other like reasons, the bill should be dismissed.

When the facts to which we are about to refer are kept in mind, it will be seen that the above stated points of law, adjudicated by the court below, were all moot, so far as the present partition proceedings are concerned. The chancellor found these material facts: that M. Florence May departed this life August 15,1908, testate, leaving to survive her a husband, George S. May, and two daughters, Ethel McClintock Adamson and Marion Mc-Clintock; that the testatrix gave all her property to these two daughters; that Mr. May elected to take against his wife’s will, as tenant by the curtesy of her real estate, and subsequently, on August 8, 1914, after the filing of the bill in the present casé, died; that, both by tbe terms of tbe trust deed of 1883 and under tbe provisions of the will of M. Florence May, upon ber death, tbe property in controversy was to vest in tbe plaintiff and ber sister. Therefore we say: all tbe questions so vigorously contested in tbe court below, concerning tbe quantity and quality of tbe estate possessed by Mrs. May and tbe extent of that taken by Mr. May, as tenant by tbe curtesy, became moot upon tbe decease of the latter.

Tbe appellant contends, however, that, since a plaintiff in partition, ordinarily, has tbe right to an accounting of rents and profits from a defendant in possession, tbe bill should be sustained as against tbe executor of George S. May, deceased, to accomplish that purpose; but tbe answer to this contention is that such right is merely, incidental to tbe principal purpose of a proceeding in partition, i. e., a division of tbe land in controversy, and when partition becomes unattainable against tbe person liable to make tbe incidental accounting, by reason of tbe absolute ending of any interest which be or others claiming through him may have in the land, then, tbe principal purpose of tbe suit being impossible of accomplishment, tbe right to an accounting in that particular proceeding fails.

Tbe objects of tbe present suit, disclosed by tbe pleadings, was to determine tbe title to and accomplish tbe partition of tbe property in controversy as against George S. May. Tbe plaintiff, and ber sister, tbe other defendant, contended in their bill and answer, respectively, that Mr. May was not a tenant by tbe curtesy in tbe undivided three-fourths interest covered by tbe trust deed, but simply in tbe one-fourth undivided part of tbe property purchased by M. Florence May individually after tbe date of tbé aforesaid deed; while the executor of Mr. May contended that bis decedent was tenant by the curtesy of tbe entire property. These respective'contentions raised disputed questions of title involving issues of fact, which it is highly doubtful whether a chancellor should, under the circumstances, have undertaken to pass upon; aside from that point, however, as already suggested, on the death of Mr. May all the controverted issues of title in the case became moot questions, and, upon that ground alone, we determine the bill was properly dismissed.

As before said, the averments of both the plaintiff’s bill and of the answer filed by her sister indicate that, so far as the partition of the property in question was concerned, their joint object was to accomplish a division thereof as against George S. May, and there was no request in the court below, or suggestion here, that the bill should be retained for the purpose of a partition between the two sisters; nor is there any assignment of error which complains because it was not so held. Of course, if the sisters want partition as between themselves, the courts are open to them for that purpose; or if both, or either, of them desire and can show their right to an accounting from the executor of George S. May, deceased, in a proper proceeding, there is nothing in our present adjudication which will bar them therefrom.

The assignments of error are all dismissed, and the decree is affirmed at the cost of the appellant.  