Opinion
03-21-1888
BROWN et al. v. GRANDIN et al.
Daniel Fleet and George Shipman, for complainants. Henry 8. Harris, for defendants.
Bill for specific performance. Hearing on bill, answer, and proofs.
Daniel Fleet and George Shipman, for complainants. Henry 8. Harris, for defendants.
BIRD, V. C. By this bill two objects are sought to be attained—First, that Isaac Wildrick, one of the defendants, shall be directed to convey the title to certain lands to the complainants and to others of the defendants; and, secondly, that the said lands be divided between the said complainants and the said other defendants. The lands in question were conveyed to the said Wildrick in the year 1850, in trust that he should hold them for the use of Sarah Gardner, the mother of the complainants and the said other defendants, to her sole use, "and not to the use of her husband, nor subject to be taken for any of his debts;" and that he would permit the said Sarah Gardner to possess and enjoy the said premises for her own separate use during her natural life, and after the death of the said Sarah Gardner would convey the same in fee-simple to such person or persons as at the time of her death might be her heir or heirs at law." Sarah Gardner died before the filing of this bill. Mr. Wildrick answers the bill, and makes no resistance to the prayer requiring him to execute a conveyance; but insists that before he shall be required to do so there should be decreed to be paid to him the sum of $104, for taxes which he has paid as such trustee, and for expenses incurred in attending to and caring for the property during the period of Mrs. Gardner's life.
Is he entitled to be reimbursed for such outlays? The taxes were imposed upon the premises, and were paid by him during the first 10 years that he exercised the duties of trustee,—that is, prior to 1860, over 25 years ago. The question of laches has a material bearing in the consideration of every such question. But I apprehend another legal principle, perhaps more fundamental in its character, must control the determination of this question. I refer to that well-settled doctrine which requires the tenant for life in every such case to discharge all the annually recurring incumbrances or liabilities to which the property, so held for life, may be subjected to. On this point the authorities seem to be uniform. And the same may be said of the other claim made by the defendant. It may well be asked, why should the heirs at law of Mrs. Gardner be subjected to the burden which the law casts upon her? She having the benefit of the estate for life, it was her duty to care for it in all particulars, and to discharge whatever legal liabilities might be incurred by the trustee in its behalf. The trustee only held for her. He did not hold any longer for the heir or heirs at law than was necessary for him to make and execute a conveyance to them of the fee, according to the power contained in the deed conveying the title to him. As to the heir or heirs at law, he held it for such purpose, and for no other. There seems to be no principle known to the law by which he can recover or in any way establish his claim to his expenses in behalf of these lands during the period of the life of Mrs. Gardner. The following cases show the extent of the obligation in such cases: In re Steele, 19 N. J. Eq. 120; In re Heaton, 21 N. J. Eq. 221, Thomas v. Thomas, 17 N. J. Eq. 356; Haulenbeck v. Cronkright, 23 N. J. Eq. 407. Especially as to taxes: Holcombe v. Holcombe's Ex'rs, 27 N. J. Eq. 473, 29 N. J. Eq. 597-600; Combes v. Cadmus, 36 N. J. Eq. 382, 383; 2 Perry, Trusts, § 554; nor if trustee pays, can he charge others. Id.
There is some difficulty in proceeding with this suit to a decree for partition, or sale, in case there can be no partition, because the bill has the appearance of being multifarious, in that the allegations and the prayers look to two matters most independent and distinct. But since the defendants do not raise the question by demurrer or otherwise, and since, in my judgment, it can work no injury to the title, whether there be a division or a sale, I am not willing to advise that the proper course is for the complainant to ask to have his bill dismissed as to all of the defendants, except Mr. Wildrick. The case is not like that of Emerson v. Pierce, 11 Atl. Rep. 745, recently decided, in which there was also a prayer against a trustee, and a prayer for partition or sale; for in that case the only defendant was the trustee, and, after the case was disposed of as to him, there was no defendant in the cause; and it seemed so anomalous to the court that it did not feel warranted in proceeding to decree a partition or a sale without parties both complainant and defendant to the suit. If the court proceeds, it will be in a cause with respect to a matter (that of partition) of which the court has jurisdiction; and between parties over which the court also has jurisdiction. Therefore it seems to me that, although it is the duty of the court to move in matters respecting title to land with the utmost caution, there cannot be the shadow of doubt as to the perfection of the title in the respective co-tenants in case of division or of the purchaser in case of a sale. I cannot think that there will be any blemish in the decree because of the non-joinder or misjoinder of causes, since all the parties are before the court, and every interest involved is brought into litigation, and every right determined. I would not have it understood that there is not a misjoinder; I am only going so far as to say that, if there be, the defendants not having raised the issue, (the doubt coming from the counsel of the complainants,) it will not stand in the way of making a good title by the final decree in the cause.
The complainants are entitled to costs as against the defendant "Wildrick, upon his answer, and including in said costs so much of the bill as presents a case against him, and not including the charges and prayers for partition or sale.