MILLER, P. J., ANDREWS and SELF, JJ.
Ruppenthal, administrator of the estate of Salim Khimani
("Salim"), petitioned for statutory partition of
real property owned jointly by Salim, his brother Mohammad
Khimani ("Mohammad"), and his brother-in-law
Sikandar Nathani ("Sikandar"). Mohammad
counterclaimed for equitable partition and an accounting,
asserting that he was entitled to contribution and set-off
for significant sums he had paid to maintain the property.
Ruppenthal moved for summary judgment on the contribution
claim. The trial court granted the motion in part, and
Mohammad appeals. For reasons that follow, we reverse.
appeal from the grant of summary judgment, we review the
record de novo "to determine whether there is a genuine
issue of material fact and whether the undisputed facts,
viewed in the light most favorable to the nonmoving party,
warrant judgment as a matter of law." Jones v.
Kirk, 290 Ga. 220, 221 (719 S.E.2d 428) (2011) (citation
omitted). So viewed, the record shows that Mohammad, Salim,
and Sikandar acquired the property as tenants-in-common on
February 12, 1998. In 2001, the three men granted First
Georgia Community Bank a security interest in the property to
secure a construction loan. Mohammad paid off the outstanding
indebtedness in 2007 using funds received through a personal
loan that he obtained from a different bank. He also
satisfied taxes owed on the property for multiple years.
subsequently died, and in 2015, Ruppenthal, as executor of
Salim's estate, filed a Complaint for Statutory Partition
of the property. Claiming that Salim, Mohammad, and Sikandar
each held a one-third share, Ruppenthal requested that the
property be sold and the sale proceeds distributed between
the parties "in accord with their relative
interests." Mohammad counterclaimed for an equitable
partition and accounting, asserting that he was entitled to
an increased share as a set-off from his cotenants, given the
money he spent on behalf of the property.
moved for summary judgment as to expenditures made more than
four years prior to 2015, when Mohammad filed his
counterclaim. According to Ruppenthal, any claim for such
amounts, including the loan satisfaction in 2007, subsequent
interest payments on the personal loan Mohammad took out to
satisfy the construction loan on the property, and tax
payments made through 2011, was barred by the four-year
limitation period in OCGA § 9-3-25. The trial court
granted the motion, and Mohammad appeals.
to OCGA § 9-3-25, "[a]ll actions upon open account,
or for the breach of any contract not under the hand of the
party sought to be charged, or upon any implied promise or
undertaking shall be brought within four years after the
right of action accrues." This limitation period applies
to contribution claims by an obligor who pays off a common
debt and creates an "implied contract on [the] part [of
a co-obligor] to bear his share of the common burden."
Powell v. Powell, 171 Ga. 840, 840 (156 SE 677)
(1931); see also Sherling v. Long, 122 Ga. 797, 799
(50 SE 935) (1905) ("The period of limitation to an
action for contribution is that fixed for an implied
contract."). The cause of action for contribution
generally accrues - and the four-year statute of limitation
commences - upon payment of the joint debt. See
Powell, supra; Sherling, supra.
these principals, the trial court found that OCGA §
9-3-25 precluded Mohammad's claim for expenditures made
over four years before he filed his counterclaim. This case,
however, does not merely involve an implied promise to pay.
Mohammad sought an equitable partition of real property and
an accounting of the joint tenants' interests. See OCGA
§ 44-6-140 ("Equity has jurisdiction in cases of
partition whenever the remedy at law is insufficient or
peculiar circumstances render the proceeding in equity more
suitable and just."). A court resolving such equitable
claim has "the authority to adjust the accounts or
claims of the cotenants" based on payments made to
protect the property. Taylor v. Sharpe, 221 Ga. 282,
284 (1) (144 S.E.2d 390) (1965), disapproved of on other
grounds by O'Connor v. Bielski, 288 Ga. 81, 83
n. 2 (2) (701 S.E.2d 856) (2010). In other words, the court
may "make necessary and equitable adjustments for
improvements and expenditures made and paid for by the
respective parties." Borum v. Deese, 196 Ga.
292, 295 (1) (26 S.E.2d 538) (1943).
in the statutory scheme governing equitable partition limits
these adjustments to payments made within four years of the
request. See Ransom v. Holman, 279 Ga. 63, 64 (1)
(608 S.E.2d 600) (2005) (trial court properly exercised
equity jurisdiction over cotenant's petition for
partition and accounting, which included claim that cotenant
had paid all taxes and maintenance costs relating to the
property since 1980). Rather, the court must "mold its
decree to meet the general justice and equity of each
cotenant." OCGA § 44-6-141. The trial court's
ruling does not address the equities here.
under OCGA § 44-6-122, if one party receives more than
his fair share of the rents or profits from jointly owned
property, he is liable to his cotenants for the overage. This
liability creates an equitable lien in favor of the cotenants
against the profiting party's property interest. See
Bank of Tupelo v. Collier, 191 Ga. 852, 856 (2) (14
S.E.2d 59) (1941). The limitation period for recovering such
overage does not commence until the profiting party
"begins to hold such surplus adversely to the
cotenant[s], and knowledge of that fact comes to the
cotenant[s]." Chambers v. Schall, 209
Ga. 18, 22 (4) (70 S.E.2d 463) (1952). Thus,
[i]n an equitable action for the partition of land and for an
accounting, the defense of laches raised by general demurrer
is not well taken when the pleaded facts show that the
plaintiff, upon being informed that the defendant, her
cotenant, was asserting title to the property and refused to
account for the rents and profits, promptly instituted her
action for partition and accounting.
Ballenger v. Houston, 207 Ga. 438, 440-441 (62
S.E.2d 189) (1950).
Mohammad does not claim that, at this point, Salim or his
estate has received an unfair share of rent or profits from
the joint property. Our Supreme Court, however, has applied
the principles governing rent and profit "in favor of a
tenant in common who has expended money for the protection of
the joint property by the payment of taxes." Collier
v. Bank of Tupelo, 190 Ga. 598, 601 (3) (10 S.E.2d 62)
(1940). As the Court explained, a cotenant who pays such
taxes "is entitled to a lien against the interest of his
cotenant for his share of the taxes paid." Bank of
Tupelo, supra, 191 Ga. at 856 (2).
Ruppenthal's complaint, the estate asserted a full
one-third interest in the property and sale proceeds, despite
the significant sums Mohammad personally expended on behalf
of the property in loan and tax payments. Mohammed timely
responded, raising his claim for contribution and set-off.
Given these circumstances, as well as the requirement that
any equitable partition ruling meet the equities of each
cotenant, we find that the limitation period on
Mohammad's contribution request did not commence until
2015, when Ruppenthal filed the estate's complaint. See
OCGA § 44-6-141; Bank of Tupelo, supra;
Collier, supra. Accordingly, even ...