Opinion
03-28-1891
VASS v. HILL.
John H. Dahlke, for motion. J. G. Shipman & Son, opposed.
On petition to open final decree and to modify the same.
John H. Dahlke, for motion.
J. G. Shipman & Son, opposed.
BIRD, V. C. In this case the master reported that the lands could not be divided without prejudice, and that they should be sold, and also that Isaac Hill, one of the defendants and tenants in common, had occupied the premises, and should account for the value of them, and found such value to be $310. Isaac comes in by his petition, and says that this report, and the decree based thereon, are a surprise to him, and insists that he was in possession at the request of his co-tenants, and in order to prevent a forfeiture of the policy of insurance in case of fire. He admits that he cultivated 17 acres of the land, and pastured two cows thereon. I find that he was in possession at the request or by the consent of all the persons interested as co-tenants, except the complainant, Mrs. Vass, and his brother William. As I understand the testimony, only the two latter insist that the finding of the master should re sustained. I think too, that they are committed to this conclusion, or are estopped from asserting to the contrary, by their requests and representations to Isaac; and, although Isaac was only requested to go in and take possession of the buildings in order to save the insurance in case of accident by fire, I do not understand that his co tenants, who requested him to go in for that purpose, make any claim against him for any rents and profits, notwithstanding he admits having cultivated a portion of the premises.
But William and Mrs. Vass insist that Isaac is liable to the full extent reported by the master. Whether the master's report should be sustained to this extent or not is not so easy of solution. I find from the testimony that neither William nor Mrs. Vass gave their consent to Isaac's occupying the premises. But had he done nothing more than occupy the dwelling and other farm buildings, so far as to meet the requirements or conditions of the policy, he would have been free from all liability to any one. However, he did more than this. He cultivated 17 acres of the land, and cut hay upon two other parcels, and sold it, and pastured his two cows and a horse upon a large portion, if not all, of the balance. Although the hay sold was gathered from two different fields, the value of it was not large, and, although 17 acres of ground were plowed and planted, the products were worth but li, ttle, if anything, more than the cost of cultivation; and the value of pasture of two cows and a horse would be slight compared to the full rental value of 139 acres of farm land. With this statement alone before the mind, the impression would be that to charge Isaac with full rental value would be inequitable. But are the claims of William and Mrs. Vass to be limited by what Isaac received or did not receive? My judgment is that he not only took possession of the dwelling-house and other farm buildings, and of the land which he plowed and planted, and of the fields from which he cut hay, but of the entire farm. William and Mrs. Vass had a right to consider him in such possession. It is true he says he did not prevent them from joining with him in the possession. That is not the point of the controversy. The question is, were his acts such acts of dominion as to charge him with the possession of the whole? If so, then I can see no escape from the conclusion that he is liable, not for what he may have received, but for the fair rental value of the premises. His liability is not to be determined by the extent of his negligence. Had he cultivated the farm in a good and workman-like manner, and the crops had been indifferent or worthless, his liability would have been measured accordingly. But it is most obvious that no tenant can shelter himself from responsibility without some such reasonable excuse. What other standard, therefore, is there for the guidance of the court but that of the fair rental value? It seems to me that the reason and spirit of the law in all its branches, when fixing the liability of individuals who deal with the property of others, or mingle that of others with their own, are unequivocally and positively inthis direction. Upon the very point under discussion will be found the case of Edsall v. Merrill, 37 N. J. Eq. 114. Vice-Chancellor Van Fleet there declares the law to be: "A tenant in common, who prevents his co-tenants from obtaining from the premises held in common their just shares of the income the premises are capable of yielding, or who takes possession of the whole, and uses them as his own, and thereby makes a profit, is bound to account to his co-tenants, either for the rental value of the premises, or the profit he has made." And to the same import is the case of Annely v. De Saussure, 26 S. C. 497. I think it ought to be noted that in both of these cases the property was incapable of division; but the result cannot be different in case where the whole property is actually occupied and enjoyed by the tenant in possession. In this case it is clearly established that William offered $310 rent for the farm, and that that is a fair rental value is not seriously disputed. I have no reason for supposing that this was not a bona fide offer, nor that it would not have been realized, and the farm buildings protected, had not other co-tenants insisted upon his sowing two bushels of clover seed besides paying the $310. This fact brings into the case a very strong element of equity. Considering the position that Isaac took in the occupancy and management of the farm, I think it would be highly unjust, and decidedly contrary to every principle upon which this court proceeds, to deprive William and Mrs. Vass of the benefit of this offer. Those who refused to accept of William's offer, by insisting upon more at his hands, consented that Isaac should take the possession without any charge.
2 S. E. Rep. 490.
In the discussion, and during the progress of the hearing, counsel for the complainant insisted that, since this was practically a discussion as to the terms of a decree of distribution, (the premises having been sold,) Isaac should not only be charged with the value of the premises, but also with the amount which he forfeited in not complying with the conditions of the first sale under which the premises were struck off to him as the highest bidder, and which he acknowledged by signing said conditions. His liability was not seriously disputed by his counsel, but it was urged that it would be irregular to consider that question at this time, and especially since there are no pleadings, such as petition or the like, raising the question in a formal manner. I am relieved from entering into any discussion of this subject, since the very point has been fully considered by Vice-Chancellor Pitney in the case of Bailey v. Dalrymple, (N. J.) 19 Atl. Rep. 840, and decided against the objection. I hold, therefore, that Isaac must account to William and Mrs. Vass for their share of the rental value of the farm, which I find to be $310, by adding such shares to the proceeds of sale, and crediting the shares of William and Mrs. Vass therewith, and by deducting therefrom Isaac's: and also by adding the amount of his forfeiture, less the amount paid in cash by him, being the percentage on the amount of the first sale, to the whole amount of sales, and deducting the same from his share. No costs will be allowed to either party on this petition.