Opinion
09-03-1890
EOWDEN et al. v. MURPHY et al.
Mr. Guild, for complainants. Mr. Meeker and Mr. Runyon, for defendants Mrs. Murphy and the Dime Savings Institution.
Mr. Guild, for complainants. Mr. Meeker and Mr. Runyon, for defendants Mrs. Murphy and the Dime Savings Institution.
The material facts are these: On June 2, 1851, Mary Rowden and her daughter Jane, one of the defendants, bought a house and lot in Newark. The lot is about 30 feet wide, and 130 feet deep, and fronts on Union street. Mrs. Rowden contributed $400 in cash towards the purchase money, and her daughter $100. They jointly assumed the payment of a mortgage of $350 then on the property, and gave a mortgage for $500, the balance of the consideration. These mortgages were subsequently paid off by the daughter, with her own money, in the year 1871, and after her mother's death. Previously thereto, mother and daughter had joined in executing two additional mortgages aggregating $525 on the same lot, whose proceeds were used to make additions to the house. These also were paid off by Jane. Jane, besides, appears to have contributed largely to the support of her mother in the last years of her life, and she paid her funeral expenses. Because she did so, and because she had paid the above mortgages, and had procured releases of their interest from two of her brothers, she testifies that she thought that the property had become hers. By what process of reasoning she reached this conclusion, I do not know, but it would seem that she was honest in her conviction. In 1871, the same year in which she paid off the old mortgages, she again mortgaged the property to the Dime Savings Institution, and with the money thus obtained, and with what remained of some insurance money which she bad received on the death of her former husband, she built another addition to the old house, the addition costing nearly $5,000. Since then she has retained to herself a suite of rooms sufficient for her own wants, and rented the rest. Mrs. Rowden, her mother, died intestate on December 7, 1858. She left her surviving her daughter Jane, above mentioned, and four other children. Two of them released their interest to Jane. The complainants are the infant children of Robert H. Rowden, one of Mrs. Rowden's children, who did not join in the release. This son was under age when the $5,000 addition was being made by his sister Jane, and he died in 1887, at the age of 37, without having asserted any right to participate in the rents. The complainants insist in their bill that they are entitled to an undivided fifth of their grandmother's half-interest in the property. The defendants Mrs. Murphy and the Dime Savings Institution admit this, but say that the claim is to be limited to the property as it was at the death of Mrs. Rowden, and not to the property as improved by Mrs. Murphy. I think defendants' insistment in this particular is justified by the case of Hall v. Piddock, 21 N. J. Eq. 315. As it is conceded that the propertymust be sold, the complainants' interest in the purchase money will be determined according to the rule adopted in that case. In view of the fact that Mrs. Murphy admits that at least $525 was spent in additions to the property prior to her mother's death, I adopt the estimate of Mr. Crane, viz., $2,700, as the value of the property, exclusive of the improvements made in 1871. With the improvements the evidence shows it to be now worth $5,850. These figures will afford a basis for the calculation to be made, according to the rule referred to, of the proportion of the proceeds of sale to which the complainants will be entitled.
The next question concerns the account of rents and disbursements. During the taking of testimony Mrs. Murphy agreed to account for all the rents received since her mother's death in 1858. This would carry back the accounts 30 years. The agreement was made upon the idea that Mrs. Murphy would be allowed to offset rents, not merely against current disbursements, but also against what she had expended in improvements. I have already given her the benefit of these improvements in a much more unobjectionable mode, viz., to the extent that they have actually increased the market value of the property, and she cannot have a second allowance for them. But as she agreed to account for that length of time, on the above-mentioned understanding, it would be unjust to hold her to the agreement to account for 30 years. I think, in view of all the circumstances, the account should go back six years prior to the commencement of this suit, and no further; Mrs. Murphy to be charged with what she has received during that period, and since, and allowed what she has disbursed. From her disbursements, as presented, should be excluded the item of cost of putting in the steam-heater. Mrs. Murphy is also to be charged with the fair rental value of the part she occupied. She says that the part occupied by her for the last five years had been previously leased for $19 a month, and that the part occupied by her before that time had been leased for $12. These figures may be adopted as the measure of her liability. I so charge her, notwithstanding the earnest contention of her counsel that she ought not to be charged at all in respect to her occupation. This contention derives some plausibility from the case of Sailer v. Sailer, 41 N. J Eq. 398, but, even if well founded, it would not be of much practical utility to her in the present case; for it would manifestly follow that Mrs. Murphy ought not to be allowed for the whole of her disbursements, but only for such part of them as would bear the same proportion to the entire disbursements as the rent actually received from the property would bear to the amount of such rent, plus the rental value of the part which she occupied. The account thus stated would not differ greatly, in the result, from an account stated on correct principles. The rule of law prevailing in this state or this subject is, as I understand it, that the occupation must be exclusive in order to warrant the charge. Tested by this rule, I think her occupation, on the particular facts of this case, clearly so—First, because she claimed the entire property as her own, and occupied it, and received the rents from it, as sole owner; second, because she appropriated it to herself by building upon it; third, because she held and rented it in such manner that none of her brothers and sisters could have occupied any part without ousting either herself or her tenants from their part. If this be not exclusive occupation, I do not know what is; for in New Jersey, at least, an express refusal is not thought to be a necessary constituent of the exclusiveness of the occupation. Edsall v. Merrill, 37 N. J. Eq. 114; Izard v. Bodine, 11 N. J. Eq. 403; Davidson v. Thompson, 22 N. J. Eq. 83. The English rule as laid down in Henderson v. Eason, 17 Adol. & E. (N. S.) 701, is less liberal to the tenant out of possession than that of our own courts. The difference is well illustrated by Buckelew v. Snedeker, 27 N. J. Eq. 82, where it was held that a tenant who cultivates the land, and receives the entire proceeds, is chargeable to his co-tenant for his share of the profits. But even under the English rule it may be doubtful whether Mrs. Murphy would be allowed to retain a full half of the rents received. To allow her to do so would not only be opposed to natural equity, but it would not have the merit even of according with the literal interpretation of the statute on which the English decision is based. Revision, 4. By the statute the tenant is accountable "for receiving more than comes to his or her just share or proportion." Does she not receive more than her just share when she retains a full half of the rents of a part of a property, from which she likewise derives a substantial benefit by occupying the other part? It does not follow from what I have stated that the complainants are entitled to an undivided tenth of the whole of the net rents. According to the decision in Hall v. Piddock, supra, they are only entitled to a tenth of such proportion of the whole as the value of the land—$2,700—bears to the value of the entire property—$5,850. Says the chancellor in that case: "The defendants are entitled to such portion of the net proceeds of the premises as belongs to the land. The proper way to ascertain and apportion that is to give the land such proportion of the whole net yearly value as the value of the land bears to the value of the whole premises and to award [in that case] one-fourth of it to the defendants."
I do not know of any legal principle on which I can at this distance of time make an allowance for the mortgages paid in 1871. Mrs. Murphy did not keep them alive by an assignment, and she did not sue for contribution. Having no lien for the mortgage paid, the statute has run against her claim at law, and it is too late for equity now to enforce it. A decree will be advised in accordance with these conclusions.