Opinion
01-19-1906
ROSE et ux. v. COOLEY et al.
E. R. Walker, for complainant and for defendant Rose. Linton Satterthwait, for defendant Crozier. Vroom, Dickinson & Scammell, for defendant Cooley.
Bill by J. Forman Rose and wife against Emma L. Cooley and others. On exceptions to report of master appointed in partition proceedings and objections to confirmation thereof. Report confirmed and exceptions dismissed.
E. R. Walker, for complainant and for defendant Rose. Linton Satterthwait, for defendant Crozier. Vroom, Dickinson & Scammell, for defendant Cooley.
BERGEN, V. C. The bill of complaint in this cause prays the partition of lands therein described, owned as tenants in common by the complainant, his two sisters, Ella P. Rose and Mary L. Crozier, and his half-sister, Emma L. Cooley; the sisters and half-sister being made defendants. Mrs. Cooley answered, praying for an accounting by her half-brother and sisters. An order of reference to a master was made, which directed him to ascertain and report whether or not the complainant and his sisters, Ella P. and Mary L., or some of them, had been in the possession of the whole of said premises to the exclusion of the answering defendant, Emma L. Cooley, and whether their occupation had been of such a character as to exclude her from participation in the enjoyment thereof, and whether they should account to her for the use of the premises, and that the said master should also ascertain the reasonable rental value or income which the land was capable of yielding from the month of March, 1891, to the present time. The master, upon due notice to the parties, proceeded to the taking of the depositions of such witnesses as were produced before him, and thereupon reported that the complainant and his two sisters, Ella P. and Mary L., had not, nor had either of them, been in the possession of the whole of the lands to the exclusion of their half-sister, Emma L., and that their occupation had not been of such a character as to exclude Mrs. Cooley from participation in the enjoyment thereof, and that they were not liable to account for such occupation. The master also reported that, from the evidence offered, he was unable to fix the reasonable rental value of the farm, or the income which it was capable of yielding during the time stated in the order of reference. To this report the defendant Mrs. Cooley has filed exceptions, and objects to the confirmation of the report, which is the matter now to be passed upon.
The evidence taken before the master shows that the father of these four children died seised of the lands in question; that at the time of his death the children, other than Mrs. Cooley, were minors; and that the farm was rented to a tenant for money rent until April, 1891, at which time the tenant left the farm, and for some reason the owners were not able to secure another tenant. Just previous to April, 1891, the husband of Mrs. Cooley died, she having, after her father's death, and until April, 1891, supported the infant children at her house, which was located within sight of the lands in question. Owing to the death of her husband, Mrs. Cooley did not feel able to continue the arrangement and suggested that, as the complainant was then about 19 years of age, he should takehis two sisters and occupy the farm and farm it. It clearly appears from the evidence that when these children went to the farm the payment of rent was not considered, nor, in my judgment, was it expected; for the principal motive which Mrs. Cooley had in making the arrangement was to provide a place where these children could support themselves and at the same time keep the farm in condition to induce a profitable sale of it. The testimony clearly discloses the fact that the running of the farm was not a profitable business, for, after years of renting, it had acquired the characteristics of all farm lands subject to such treatment, the fences had Dearly all disappeared, and the buildings were in a decaying condition, so much so that, on one occasion, the end of the barn fell away from the rest of the building, and was repaired by the complainant at considerable expense; that during the period the complainant and his sisters lived on the farm he invested in repairs to the buildings, the putting up of fences, and the fertilizing of the land, not only all the proceeds he derived therefrom, but all the patrimony he had received from his father's estate, amounting, as I am able to gather from the evidence, to about $1,000; that during this time he repeatedly asked Mrs. Cooley to take the farm and relieve him from the burden, but she declined, and encouraged him to stay, hoping for a favorable sale. On one or two occasions he did give her money, at one time a check for $50, indorsed with a memorandum that it was for rent, and on another occasion, when some material was sold from the farm for $40, he gave her $10 of it, being her share. From these circumstances, and from the further fact that she at different times applied to him for rent as she puts it, or for her share of the farm as the other witnesses say, it was argued that Mrs. Cooley is sustained in her claim that there was an agreement to pay rent; but I do not think that such an inference is properly to be deduced from these circumstances. She did, undoubtedly, on several occasions apply to the complainant for what she called rent; but I am satisfied that what she meant was a proportion of the profits arising from the working of the farm. A reading of this evidence will not justify the conclusion that these three children refused possession to their elder sister and co-tenant, or deprived her of the income from the premises. On the contrary, there never was any net income, taking the whole period together, but rather a loss, which absorbed the little property which the complainant had inherited, and that without taking into consideration the years of labor which he devoted to the preservation of the property.
In Edsall v. Merrill, 37 N. J. Eq. 114-117, Van Fleet, V. C, said: "The principle adopted may be stated as follows: Where the tenant in possession has prevented his co-tenants from obtaining from the premises such profits as they were capable of yielding, or has taken possession of the whole, and used them as his own, and thereby made a profit, he must account either for their fair rental value, or the profits." Applying this rule to the circumstances of this case, the report of the master should be sustained. These co-tenants were put in possession by this claimant, their elder sister and the head of the family, and, so far from preventing her from obtaining from the premises such profits as they were capable of yielding, they were holding, at her request and for the joint benefit of all the co-tenants, possession of the premises at an actual cost to them, to which she never contributed or offered to contribute a dollar to reimburse the complainant for the losses he was sustaining because the premises yielded no profit. Nor did the complainant or his sisters take possession of the whole premises and use them as their own, and thereby make a profit. Instead of taking possession, they were put in possession by their elder sister for her convenience and to keep the property in condition for a purchaser. A considerable portion of the evidence was directed to the question to which of these parties were responsible for the failure to make a sale of the property. I am satisfied that the great preponderance of evidence tends to show that the complainant and the two sisters who were on the farm with him, one, Mary, being there but a portion of the time, were anxious to sell, and that, if the sale was prevented, it was because Mrs. Cooley was unwilling to join in the conveyance.
The master's report will be confirmed, and the exceptions dismissed, with the costs of the accounting to be charged against the share of Mrs. Cooley.