
    Courtenay et al. v. Hayden et al.
    [89 South. 777.
    No. 22022.]
    P^^ixion. Minar cotenants living with their mother, xoho xoas lessee, xocre not liable on pax'tition far rents.
    
    Where a mother indiyiclually 'leased property and 'entered into 11 " possession witlrher minor daughters, who1 subsequently'bdCam'e 1 ' ) . ■ cotenants with others in' the leased premises, they were not -in , ;i possession .as cotenants, and on partition were .not .liable for- .,;,.. . rent.. . . . . . .; . . . . ¡.
    .Appeal from chancery court of Harrison county.,
    Ji.ON. D, M, Russell, Chancellor.
    . Suit by Mrs. Justin Ella Hayden and others against Mr.s. Lelia Courtenay, guardian for Lucile Courtenay, and anpther, minors, for partition, in which the property was • sold,, but tlie defendant refused to vacate the premises, and a. judgment ip. another case to oust her was not enforced, and she filed objections to tbe confirmation of the report of sale, and from a decree therein she' appeals.
    Affirmed in part and reversed in part.
    
      Mize & Mize, for appellant.
    Counsel, in all of their writing, fail to explain why or to give any logical reason or cite any authority why, in a case where an individual rents property belonging to an estate, as Mrs. Lelia Courtenay did in this case from the administration and get in debt for the rent, the interest of the minors who own one-seventh of the property should be taxed with six-sevenths of the rent due by this individual to the estate, just because she happens to be the mother of the minors, where she did not rent the property as guardian for them, but for herself personally. If she did not pay the rent, she could have been ousted, hut, because she was not ousted and incurred personal debt and liability, did not give the court authority to tax the interest these minors owned in the property with six-sevenths of the indebtedness incurred by their mother, not as their guardian, but under a contract of rent made by her personally.
    Appellee cites the case of Walker v. Williams, 84 Miss. 392, but this case is not -in point here under the facts of this case, of course, it cannot be denied, that each co-tenant has a lien upon the interest of every other for the value of the use and occupation of the joint estate beyond such tenant’s individual interest therein. But the facts here are that these four minors, if they lived on this property with their mother, Mrs. Lelia Courtenay, were not occupying the property as co-tenants occupying a joint estate by rea-' son of their owning one-seventh interest, but were simply living with their mother, as minors, in the property which she had leased as an individual. The administrator of the estate, with the consent of all the co-tenants, had leased this place to Mrs. J. M. Courtenay, who is Mrs. Lelia Courtenay, as an individual and she was occupying the premises under said lease, and the minor children, who happened to have a one-seventh interest in the place, were not living with their mother on the premises, if they stayed there, by reason of any interest they owned in it, but lived there with their mother, who had leased the place personally, as her minor children, and in no way in the capacity of co-tenants.
    
      W. L. Wallace, for appellee.
    These four children of Mrs. Lelia Courtenay owning only a one-seventh interest in this property occupied with her the same for a period of two years, seven and one-third months up to the date of the decree, to the exclusion of the other co-tenants owning a six-sevenths interest, and without the payment of any rent. The record shows the rental value of the property was four hundred dollars per annum or thirty-three and one third dollars per month. The rental for the period of occupation, therefore, would be one thousand and thirty-three dollars. Of this it is shown two hundred and thirty-three dollars was paid for rent before these minors had acquired any interest in it. As the testimony is that after this time her possession was that of the minors, then they are chargeable for the rent in excess of their interest, or six-sevenths of eight hundred dollars the rental for the period of their use and occupation as co-tenants. This is what the chancellor charged against them.
    Likewise be charged them with one-seventh their proportionate part of the taxes and insurance paid by their co-tenants and directs they also pay their one-seventh proportionate part of the Cuevas claim and the claim of Mrs. J. M. Courtenay. To these latter items, strange to say, appellants do not object. Could this be for the reason that unless the owners of the six-seventh interest were charged with their proportionate share of the amount for work not authorized by them the loss of the entire amount might fall upon the claimants?
    Certainly if the owners of the six-seventh interests are chargeable pro rata with a sum equal to their interests, account of the claims of Mrs. Courtenay and Mr. Cuevas, then tljjQ¡qFpej^pffte.seyenth,irijerest prqphqigqa&Jq.#);!? ygia,, t^r/fs%y^ p^tíbelc.Qíin^iqpf esfttp,, afl^'wMhdhqir-prodiafet,, °tftp ,t^^.^r|(ispí#?ic^ip^£Uteyí ft#, qwp-iof ¡ft# sisa i seYfi?¡ft^i W.t9Pe?t;
    There is not a denial of a single allegation in the plead-ittg'St< opu behalf mf- the* 'appelleesjt ¡that < the«’minor' ■children ofiMmiOiij Mv(Doiirttehay.mighhnofchave1 been ánche nse amN oadapanc^'dhthefptfeimdses'is suggested in appellant’s-’brief,» bntiftt > is fmot ¡ denied,-».and iiff it were»feh®Iprbof )aád ’ the • ad!! >' mi$si<»Si bf MbSuC.ourtenayi a'r© to- -the-' contrary;’- ■ 11 • >-.o-,
    ItBeoáiasé ¡shei-wast their! guardian 'hind lived with ‘thenu in< ¡ the;hioiase • andi iwas ‘the-ihéad > of «the i fámily does - hot f affeetl« the .¡right! ¡of <-the>i Sb-tenants > for* the-iádeóumfihgy* nbr ¡limit! > thediabil-ity bf her. mihórehildrén’s interest.-tocompensate s the¡fOwnebSi iof >the sixth-seventh 4mterestsufórl the'; minors!) use- arid ¡occupation of the-; common property;' ¡«-W-ee'W alicer-: v,rWUUams9'Sá¡Miss.<í39.2,' 3d*So¡*'480;r-ur '■•-•bao-Y
    s ¡Appellants s saiy> the court- was- «without «authority to* ‘settle > • the-mquitíes-as.! wascdone in tlie¡cfeancellof’s decree; v.TMs". i s At mo'st ffsm-artekble < hbritentibni > hit: needs- no nitatidhi -of»-anthoriities-toisupport-the: oourtispoumrinthis regard; -The1: court’s general jurisdiction of. inipors’ - business,1! its ■- stat-U- *■ •' toryqauftority itoinquire into --.and- decide- alT contro ver-siés arising. Out. of i and -eon-eerning .property sóught-to'be par>; i titioned,i and* its inherent power? 4o deal fully-ahd ,bompletely>1 with/all i matters (hndnparties properly béfdre .ifydsmlhsuffm \ cieafe oi -.¡jmnW .am-it! 3-»tj: «** híj <»T .immHouk *' <
    i This «case? howev#r,-i we < 'submit >f alls* .gqhandly* within* -t-he t. rm-lepdaid downtiBpWákh&lr m’tWUUamte, 84 Miss'/392j 36S!o¡<¡ 480¡¡Which inktself ¡is.sufficient -td support thq.ohanc<Slior?s d#flr#ei ¡though >we repeat Ms inherent- and ¡statutory power1 to ¡. do full and complete equity, as whs -done! here,- needs* no,* bolstering- -of ¡authorities* * »Thé < court- did > fhah which-was both .Ms-right andi duty to. ¡doy -and the-decree we say-with' * respecfctshouli.mttt¡be:áásto¿bed.'».». /ff s.«-ecu ? *•/!¡ »-->
   vOoi>Ky J*,

(Miwmbtlie ppiniQu^of tine court,*-».- yr \..i'

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On the 18th day of January, 1921, the special commissioner filed his report of sale, and set out therein in great detail his dealings with the property and his efforts to oust Mrs. Courtenay in order that possession might be delivered to the purchaser, and prayed that the court should inquire into, determine and adjust the equities between the co-tenants, and the claims of all persons interested or claiming any interest in the property. After the commissioner’s sale one W. A. Cuevas filed a petition in the nature of a petition of intervention, by which he propounded a claim of four hundred, twenty eight dollars and twenty-eight cents for repairs done on the property at the instance and request of the lessee, Mrs. Courtenay, but since this claim was allowed by the chancellor and no appeal has been prosecuted from the action of the chancellor in this regard, it is unnecessary to set tut the allegations of this petition or the proof offered in support thereof. At the February, 1921 term of the court Mrs. Courtenay filed objections to the confirmation of the report of sale, and set up a claim against the property for one hundred and sixty-five dollars expended by her for repairs thereon, and upon the final hearing a decree was entered, confirming the sale and directing the commissioner to execute a deed to the purchaser upon the payment of the balance of the purchase price. The decree further charged the estate with the amount expended by W. A. Cuevas for repairs thereon, allowed Mrs. J. M. Courtenay, as guardian of her minor children, a credit of one hundred and sixty-five dollars for repairs made by her, charged the interest of the minors with one-seventh of the amount paid out for taxes and insurance on the property, and also charged the interest of these minors with six-sevenths of the rental charge fixed for the use and occupation of the property by the said minors and their guardian up to the date of the decree, amounting to six hundred and eighty-five dollars from which decree Mrs. Courtenay, as guardian of the minors, prosecuted this appeal.

No exception is taken to the action of the court in allowing the charges for repairs, or in taxing the interest of the minors with their proportionate share of the taxes and insurance, paid on the property, but the assignment of error is based upon the action of the court in charging the interest of the minors with six-sevenths of the rental charge for the use and occupation of the premises.

We fully recognize the well-settled equitable principle that each co-tenant has a lien upon the interest of every other for the value of the use and occupation of the joint estate beyond such tenants’ individual interest therein, and no doubt the learned chancellor had this principle in mind when he charged the interest of these minors with the value of the use and occupation of the premises. We do^nottbipli, however, that the facts in eyidenep hepe, bring. th¡p(sp ■npiiprrfOrífinan^iWijtMn.tli^t.rule.. .,/

Mít will be. nq.fed that; .Mrs, J..¡51, Cp.nrtepay, pndiTidp^ily,, le^ed.^is,,property, and eptered.into pppspssipn tlierpf,;at¡ a, time, whep these .minors ltad,,pq.,interest..therein^,..and. th/n;eafteyrt}iese .¡qiiildren..occupied jthe,premises, pierely as.' initiates.of tlie «home.p,f( tbeir, mother pud, legal guardian,;, whf^e,daty¡it, ,to provide a homed pr ,thepi,, ,The ¡niojthejtf, leasedÁí^..property.and,bound herself in Ayritipg to,.pay,.,a;: rqptaldhepefor,, apd.jshe. cannot .escape. thisJiability,. ap,d t,fcips, fi?:,a.change ;np.qn,.the, estate qf her ptipor chiJ-,¡ dtpp,.byjrea^op..o^ the fact,that these minor, .children, after,-. wia)r4siiacq1niredsan.interest in the leased,premise^. ¡¡These. chiidr.ep;^,ere,pof in.possession,of this property .as.Cft-fePr ajit^,,oj.; by; .virtue of.¡their;own title, hat* merely as an,in;. cijíepit.ipdJiqir relationship £0 ¡the .lessee, and the.coptrapt. of thp. .lessee was. .not, abrogated, or her liability thereunder, cbapged.,l)y,:reason,of.,the,fac.t .that before";the .expiration, outlie,contract her.,children.acquired an interest ip the, property. ,¡' w.e think, appellees should pursue whatever,. r^rpedie.Sjtk^.niay.haye.agaipst the,ope who.is Jbpupd,by!; contract tpipay th,is< rept> and that tbe interest ofihesemi-nors should not be made to bear thp.ch.arge, ,for,.nse,.apd, occupation. .. , ,.t¡, ,,, ,, .._ ,

In support, pf.¡this, provision, ,of the, decree,,..appellees, rely upon the case of Walker v. Williams, 84 Miss. 392, 36 So. 450, but, under the facts in evidence here, we do not think that is authority in their favor. In the Walker Case the court said :

“The property was occupied, by appellant .as ¡tenant in, pOSspssiqp by¡yir£pe apd,strength q£ her, own, title,; pud the qpesti.on,of.legal,doppcile;do.es-not affect-the.rights of h.ei?; cqrtepapts.?.t !t i'.,, ■ .,

Jpdhe case nqyv,before,ps, as jye have,already pointed, opt, ¡flip-property,w;as,pot,qccppied, by appellants ¡“as,tep-.. aptiMp, .possession by virtue and strength of their owpdi-. tip"// ...,Y. V... .'Y. «-Y

We see no merit in the other assignment of error.'' The decree of the lower court, in so far as it charges thfe’interest of the minors withf the Valúe óf the iise ana ' 'chpátion bf- the: premises, is reteffeed/’&iid' a! déttéé"t?ill’'be uiitfered íiere'affirming "the ‘decree in all o’thfet '

Affirmed in part'and reversed'm'jpart.  