John B. Schmoeller et al., Appellees, v. Henry Schmoeller, Appellant.

(Fot to be reported in full.)

Appeal from the Circuit Court of Madison county; the Hon. William E. Hadley, Judge, presiding.

Heard in this court at the October term, 1913.

Reversed and remanded with directions.

Opinion filed May 1, 1914.

Statement of the Case.

Bill by John B. Schmoeller and Walter Schmoeller against Henry Schmoeller and others for partition of certain real estate formerly owned by their father and mother, John W. Schmoeller and Lena Schmoeller, both deceased. The bill also asked that Henry Schmoeller be required to account for the rents of a portion of the premises which had been occupied by him after the death of his father, John W. Schmoeller. *564The decree granted the prayer for a partition, directed the payniont of certain mortgage indebtedness and also ordered Henry Schmoeller to pay the other parties in interest twenty-five dollars a month. From that portion of the decree requiring the payment of rent, Henry Schmoeller appeals.

B. J. O’Neill, for appellant.

William P. Boynton, for appellees.

Abstract of the Decision.

1. Partition, § 74 * —when decree against an heir for rent cannot he sustained. On partition between heirs, held that a decree requiring an heir in possession of part of the property to pay a certain monthly rental based on an agreement between him and other heirs could not be sustained, where the agreement was not enforceable because one of the adult heirs was not present when the agreement was made and there was no one authorized to act for other minor heirs but held that such heir was liable to pay a reasonable rental and the decree was reversed and the cause remanded with directions to ascertain the reasonable rental value.

2. Partition, § 74 * —when decree should charge heirs with use and occupation. On partition between heirs, an heir in possession since the time of the death of the testator may, in the absence of a legal agreement as to rent for the use of the premises, be required to pay a reasonable rent, and if it should be proved that other heirs occupied the premises with him a portion of the time, they should be decreed to pay their just proportion of the rent according to the length of time they shared in the occupation of the premises.

3. Partition, § 75 * —sufficiency of decree charging part of the heirs with rent. On partition between heirs where some of the heirs are charged with use and occupation of the premises, the decree should provide that the rent be paid to the master in chancery for distribution among all the tenants in common, each to share in the same in proportion to his interest in the real estate including the ones found liable to pay the same.