ENGU1JMAN TaANsp. Co.i!. LONGWELl/a al. (Circuit Court, W. D. Mic1l!tgan;'S, D.' March' 23,1880:) !lOR'1'CUGEB IN POSSESSJON-'-;A(JOOUNTABILITY liaR RENTS. :';1
a mortgagee in possession of an undivided half interest in a milling prop"', erty forms a partnership with another to carry on the business, she will becbarged, on 'an aCCOUnting in eqUity, with the fair rental value of the half interest, notwith· ':'''standing that the business rellulteddill8strously. J.i H,' .
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,i
In Equity.
On an aGGou.nting.
WITHEY, J. Mrs. Longwell, one of the defendants, a mortgagee in the J)ossessippof the undivided half of premises, the conveyance' being absolu'te 'in form, has been required to account for the net rents and profits. Itturpsqut that she has received from one of the two parcels 'of real estatepQ relit, lmd th,at is not chargeable with rent. The titleofan undivided half of the property, upon the ,face 'of therecards was situated, Was in Mrs.Longwell. Defendant Sherman, owned the other half. ",She gave him a motigageon her half tosebure one-half of the costs of repairs whicli'he made on one parcel ofthe property; Sherman agreeing,tocarr,V on the b'tism!'ss onpilling4pd fiollppgfor five yoors from September, pay to Mrs... Longwell one-quarter of the net profits, she to bear one,.half of the losses, if any. Her quarter of profits Sherman .was to apP,lj,,towards, }:)ttying her share of the advances.:,z.:nadeby hini, secured by' tbe IiiQrtgage ,on herondiyided ohnillingproved disastrous;, Instead of a profit, there was' consequently there .was no givebto ". ' , Now it'l'sclaimed that Mra. Longwell'is not chargeable with any fimts received, none. We regllrd ,this view to be atnisappre:'.9n4erule, 'the as mortgagel;) in Gftheundivided one-half bfhthemill property, ,not be abcoun'ta'ble for reht'lr she had been unable to lel1sB the'property"pt'fad failed, after judicious leasing, to collect rent; but when she entered mto 'a partnership arrangement withl to,do a milling this mmpr(}perty, w,ould.be,thesameif she",had alone carried on the business,) and the venture turned out a court will, un,der suchcJ.rcumetances, there was profit or loss, but will the fair rental value of the premises over repairs, insurance, etc., and taxes paid. The master ill to ascerta,in wpat the rental value of" the the mill was during t11e periqd of the it was after theirpprovemel\ts were made; and credit ,her w'it4 pf her sha.re of the iIll.provement.$ beneficiaJ,to the freehold. ' ,,', v.48F.no.2-9 j'.l,; i, .'
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·lUDfORTEB,. yol. 48.,.:.
(CircuCt coon. 8.r:{).Ohio, W.p. November L FeRAL AND STATB 1'R.lO'1'lOB....LI. Pl!l'ID1I1'I....PARTITION.
Rev:; St. Ohio, 115055, . the summonl h.. been llerved or publication made, the aotion i. :pending. so .. to charge third persons with notice , of its pendency. aDd, wbile p!8Dding, no interest ,can be acquired by third persons in the subject-matter thereof .. against plaintUr'.title," is a rule of procedure, and Dot a rule of property, 80 . . to be binding upen the federal courts iii suits for partition brought in Ohio. aUthe interestsin the as they shall be,determined in the final decree; and the fao1', tbat newparfle8' 'come in and eitsb'lish a right to part of tbe interest olaimed,by ofoomplaint to third persons .lP:fter of the and before the new.parties inter-:
I. LIS PlINDENS-PARTITION-ElI'lI'JlOT Oll' lUxIN$ 'NJlW PaTII!lB. A suit for partition is U.s pendens, from the time of serving tbe subpcena, .. tie
.. P",-TITION-NJlwPARTnlIl;Ih:lI'JlND.lNT-A1'ISWBB8 4l'1D <molll-BILL&.. .. When, in a suit for pB,J'titiqnbroughtby persons out o,f possession claiming by heirship a certain interest in'tbe landll,otberperlloris claiming part of lucb intllr· est are made .parties de!9dant, thllse la.ttilr lIIay set up ,tII,eir ol,"m by way swer, and c.ross-bills uUA"cessarYI any crQIIs-bills 1j.led for this purpose'willbe'constderedas'an!iW'ers, and th6 defendantll in poasession are not enti..' :tled to service of sU1)lIall$ issued thereon. ' . . .... . ;. " . SAM...cOMPBNs41JON . . " IMPROVJl¥1!1'I'!:s-,.CROss-BILL-1l'0LLOWI1'IG STATJI TIOL . , . , . FOR. .'1 ... ' . . · .
Plu.o-
.When; in a partition autt iDa federal. ooIJrt, title ·toanintorelt iD tbe landl is established by persons not in posllession, and .the defendanw wish to olaim compen'Iation for improvements, subh 'claim lUust be sllt'up by crOBs-bill; although the state ·ststutesprescribe a different practice, since ,the federal oourts do ,not follow the , state " L' ,B.lME-'-DECRBE-RECITING;FIl'IDI1'IGS.· . .. . '
",' . Wben, in a pa.rtitlon sfttut 'Pers.·onl'liot In 'pos.session havees.tablished title to... .... .c ertain interest In tlWl sby provinl' to a remote oWDer. the court toay permit the findings 11.8 to .beli' pedigl"etll.o bereeited in the.' decree when it deems , Buob a course prl)bablyll6Cenary to prevent turther qUElst,ion as to tbe rights of the parties, notwithstanding tbat equity !'uie d,eclares that nllitherany part of the pleadings, "nortbe report of any maSter, nor anypriorproceeding8 shlill be recited ·or .lated'ln tbe deoree.:!'· :"': i'" ",' , .. EQ11lTTPlU.CTjoa-:-QBlJlowotJ 1fOT
In a partitiOn suih f0l'J¥lal and teClbnical to, te,stimoDY will not be allowed astatren at the.heai'lnlr, when in faettbey were 'l1ot' then taken, but were ,i 6l'15t l'aiBed as. to tlleli:lQf __ brlllf iluQmitted after the l1.ll.&ril1r. and .. to the remainder when tl1.e settlement of tbedeCl'ee was under cUsol1Hion. All luoh ob'. . · jectionll will be oonsideNd _waived. , : ' ! ,
.R.\ls'"
4T.. HII.l.Bl1fq-W
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. In Equity. Suit for partition oflahds. Henry T. Jihy, C.W.':Cbwen. Binlid.rdJImV,end 8. T. Orato}OJ'd. 06mplainants. '. ' " ,,'" ,., . 'iJi R. Harrislm, J. c. Harper, L. Lineol.n, for''defendants. :," Before JACK8oNandSAGE, JJ'. ' '.' '!
for
Utihsel 'ana'also a .written 'statement and brief on behalf of thedefen(liihitidri certain modifications desired by them. .... The first objection is to the statement in the introductory paragraph ofthe complainants' draft that "this cause came on to be heard at the
f. This :,.referel?-ee to the
()f)lie decree,' a
by complainants'
questions arising