Opinion
07-06-1886
JENKINS v. JENKINS and others.
J. W. Acton, for complainant. J. Boyd Nixon, for defendants.
On bill for partition and account. Facts appear in opinion.
J. W. Acton, for complainant.
J. Boyd Nixon, for defendants.
BIRD, V. C. The complainant says that in 1864 he and his brother William agreed with each other to buy a small tract of land as a home for their mother. The deed of conveyance was executed in the name of William only, who paid $200 in cash, and gave a mortgage for the balance, $1,300. Of this balance the complainant paid $650, and William the rest. William died in 1876. The mother took possession soon after the purchase, and remained in possession several years, enjoying the profits. After William's death it was rented by the complainant to different persons for money rent. In 1883 the complainant took possession, and built a new barn, and made other valuable improvements in their nature permanent.
The complainant files this bill for a partition of the premises, and, in case a partition cannot be had without great prejudice, a sale. In his bill he says that the said deed was executed to William by mistake; it being well understood that they were to take the title as tenants in common. It is not necessary to determine whether this was so or not. It suffices that the complainant understood that he was to have an equal interest in the title. I conclude that this consideration controlled him in making the payment which he did upon the mortgage given by William. The master has reported that the complainant is entitled to the amounts paid upon the mortgage given by William, and also for the amounts paid for taxes and permanent improvements. One of the defendants insists that the complainant should account for the rents and profits for a number of years. This accounting, if entered into according to the strict rules of law, could not be carried beyond the year 1876, when William died.
The testimony shows that William purchased the property for the purpose of making a home for his mother, and he at once allowed her to take possession, without any other understanding than that it was to be her home. This placed her in a superior attitude to every one except William and the mortgagee. William's rights, under the statute of frauds, are not in question. This farm and dwelling was intended for a home for William's mother for her life-time. It is highly probable that no one except the mother, during her life-time, or her executors or administrators after her death, could compel the complainant to account for rents and profits during the life-time of William, whose death occurred in 1876. Certainly, as between her and all others, the mother could claim them. By the death of William, in 1876, the legal title was cast upon his heirs at law, and from thence they can call the complainant to an account for any just claim because of his possession or of his assumed control of the premises.
The master has allowed the complainant for the moneys paid by him upon the mortgage, for taxes, and for permanent improvements. Beyond a doubt the complainant is entitled to stand in the place of the mortgagee. The equitable principles of subrogation apply here in full force. Being a tenant in common, in possession, and making repairs and improvements which were both necessary and permanent, the complainant is entitled to be reimbursed. Under the circumstances, shall he be charged with reasonable rent during all these years? Certainly not prior to the death of William. The master, in his report, makes no charges against the complainant for rent, nor does he allow him interest. He finds ground for this in the peculiar relations that the members of the family, the present tenants in common, held to each other in the occupation of the premises. Whether the reason assigned by the master be sufficient or not, it is quite certain that the claim of the complainant would be increased, rather than diminished, in case of a strict accounting. In such case he would be entitled to interest upon the cash paid upon the mortgage for 20 years, and for interest for money paid for taxes and for permanent improvements, which would exceed all reasonable claim for rent, according to the testimony. Therefore, in my judgment, no more favorable view for the defendants can be had than the one the master has given.
I will advise that the report of the master be confirmed.