Opinion
02-16-1903
BITTLE v. CLEMENT et al.
Watkins & Avis, for complainant. Robert S. Clymer and Robert C. Sparks, for defendant H. I. Clement.
Suit by B. R. Bittle against Herbert I. Clement and others. Decree for complainant.
Watkins & Avis, for complainant.
Robert S. Clymer and Robert C. Sparks, for defendant H. I. Clement.
GREY, V. C. (orally). After hearing the arguments of counsel, I am satisfied as to what the decree should be without further consideration. The circumstances of the case are as follows: The bill is filed for the partition or sale of 87 acres of land lying in Gloucester county, purchased from Harper Davis and wife by the complainant, Benjamin R. Bittle, and his brother, Daniel Bittle, by deed dated March 1, 1893, made by Davis and wife to Benjamin R. and Daniel Bittle. In payment of the purchase-money price Benjamin paid $1,250 and Daniel $550, and they jointly gave a mortgage for the residue, amounting to $2,000. On August 31, 1900, Daniel died testate, devising all his lands to Benjamin, and appointing him sole executor of his will, which was duly proved before the surrogate of Gloucester county. On the 28th of June, 1901, Herbert I. Clement recovered a Judgment against Daniel's executor, and, because Daniel's estate was insufficient to pay his debts, the executor obtained an order to sell Daniel's real estate, and under this order advertised and sold Daniel's interest in the 87 acres above named. At the time of the sale, and before putting up the property at auction, notice was given that Daniel had paid but $550 of the purchase money, and that Benjamin R. had paid $1,250 of it, and that all Daniel's interest in the equity of the farm was in the proportion which $550 bore to $1,250. The defendant Herbert I. Clement, who had the judgment against Daniel's estate, bought in the farm with notice of this fact. The complainant, Benjamin R. Bittle, sets up the abovementioned facts in the bill of complaint, and prays that a partition of the premises may be made between him and the defendant Clement according to their respective rights therein—that is, that he, the complainant, may have 25/36 and the defendant Clement 11/36 parts thereof; or, if it be found impracticable to divide the property, then that it may be sold, and the proceeds of sale divided between the parties according to their several rights therein. There is but a single matter of dispute raised by the answer of the defendant Clement He insists that the complainant, Benjamin R. Bittle, is not entitled to an interest in the property in the proportion of "25/36 parts to 11/36 parts held by the defendant, but, on the contrary, asserts that the complainant's interest amounts only to the one equal half part, and that he, the defendant Clement, acquired by his purchase and is entitled to the other equal half part. The defendant joins in the prayer for partition or sale on the basis of the shares alleged in his answer.
The testimony offered proves that the complainant paid on account of the purchase money $1,250, that his brother, Daniel Bittle, paid on account of the purchase money but $550, and that the balance of the purchase money was secured by a mortgage given by both on the premises. At the sale at which Clement purchased Benjamin announced that at the time of the purchase of the farm the purchase money, which was $3,800, was secured in part by bond and mortgage given by Daniel and Benjamin for $2,000, and that of the balance Daniel had paid $550 and Benjamin $1,250, and that Daniel's interest in the equity in the farm was in the proportion in which the sum paid by Daniel, $550, stood to $1,250, paid by Benjamin, and that Benjamin claimed to hold an interest in the equity in proportion to his payment of the purchase money. This notice was given at the sale, and the defendant Clement does not deny that he received the notice, and made his purchase subject to the information thus given. It appears by uncontradicted testimony that some years before the transaction here involved Daniel and Benjamin, who were brothers, owned their property in common. During this period there was no definition of the proportionate ownership of the brothers. No account was kept or taken to show what either contributed to the common property, nor what either took from it for his own use. There was no written agreement between them on the subject. They simply held and used their property in common. After a period of common ownership, they made a division, whereby Daniel took a mortgage for $2,000 for his several property, and Benjamin took a mortgage for $1,300, with an allowance of $700 in cash to him for his several property. The balance of the common property was not then divided. There is clear proof that before the brothers purchased the property now in dispute they had arranged to hold the mortgages and the balancing $700 of cash as the several property of each. When they purchased the property now in dispute, the proof shows they used this several property of each to pay for it. Each paid out of his own separate ownership, and not out of the Joint ownership. In paying for it, Daniel contributed out of his private and individual funds $550, and Benjamin out of his private and individual funds $1,250. There is no denial whatever of this condition of facts, and it must be accepted as true, unless it be assumed that Benjamin Bittle, who testified to it, simply perjured himself on the witness stand. He is a very ignorant man. He knows how to write his name, and can recognize papers which he signed. He knows very little about business methods, but when under examination and cross-examination he frankly answered all questions, whether the answers were favorable or unfavorable to his interests in this suit, and gave the impression of a person who was speaking the truth. Benjamin is supported in his statement thatthe contributions were as stated by the testimony of Mr. Vanneman, who heard Daniel Bittle make admissions in conversation, which came in an entirely natural way, to the effect that Daniel had contributed but $550 and Benjamin had contributed $1,250 of the purchase money. It thus appears that their contribution to the purchase money on this piece of land was in unequal proportions. There was no agreement between Daniel and Benjamin as to their several interests in the purchase, nor any arrangement whereby the one who contributed the most agreed that the other should equally share with him in the purchase. In such cases, unless the parties stand to each other in the relation of parent and child, or husband and wife, the law raises a presumption called a "resulting trust," whereby each party holds a share in the property purchased according to his contribution to the purchase money. The result of the transaction was that, when these brothers thus purchased the land in question, Daniel had an interest in it as $550 stood to $1,250, which latter amount Benjamin contributed to the purchase, and that sum represented Benjamin's share. There is no testimony showing that this arrangement was in any way changed. No conveyance or declaration of trust, or of their several interests, affecting the property, took place between them.
There is some proof which favors the defendants' contention that the brothers held in equal shares the property purchased. The fact that the deed was made to both generally is some evidence of that, and so is the charging of taxes, etc., by Benjamin against Daniel's estate in equal portions. But as to the effect of the deed, the proof is that these brothers, though contributing to the purchase in the proportions named, and evidently intending to own the property in those proportions, were very ignorant men, and it is hardly to be believed that they could or did understand the legal effect of a deed to joint grantees. So the charging of taxes, etc., in Benjamin's account, is of some force to show that they held in equal shares; but this is merely inferential proof, and ought not to be held to overcome the uncontradicted showing of the truth that the parties in fact purchased and paid for the property in the shares and proportions above mentioned, and that they have never since in any way arranged a division of either the land or the profits thereof as equal owners each of one-half part.
The payment of the proportionate shares of the purchase money by the several parties being established beyond dispute, a resulting trust assigning to each a quantity of interest in proportion to his payment arose, and should have effect, unless some definite act of the parties is proven, which establishes by equally forceful evidence some change in their relations to the property, whereby each was to hold a different share. The defendant insists that they arranged that each should hold an equal half part; but this testimony does not effectively prove his claim. The defendant Herbert I. Clement bought Daniel's share at the executor's sale with full notice that Daniel's interest was in the proportion as $550 stands to $1,250, those being the sums contributed by Daniel and, Benjamin, respectively, for the purchase of the property. The defendant Clement is equitably entitled only to that proportion which Daniel would have been entitled to had he been the defendant in this partition.
The result is that a sale should be ordered, and that the proceeds over and above the payment of the mortgage and costs should be divided in the proportion that $550 stands to $1,250. That is, the defendant Clement should have 11/36 parts and the complainant, Benjamin Bittle,25/36 parts of the net proceeds of the sale.
There is a matter which appears in the orphans' court account of Benjamin as executor of Daniel Bittle, as to the disposal made of the rents of Daniel's lands since his death, and before his executor made sale of them. Rents accruing after the death of a decedent, and before the exercise of a power of sale, go with the title to the land to the heir or devisee, and not to the executor, or to the purchaser under the power. These rents appear to have been accounted for in the executor's account. There are also credits in that account which ought not to be there. The matter is of small importance, and has not been raised in argument, and can probably be settled without further controversy in this case.
I will advise a decree as above indicated.