Summary
In Buttlar v. Buttlar (N. J. Ch.) 38 A. 300, Id., 57 N. J. Eq. 645, 42 A. 755, 757, 73 Am. St. Rep. 648. the husband made a similar defense.
Summary of this case from Phillips v. PhillipsOpinion
09-09-1897
BUTTLAR v. BUTTLAR.
John I. Weller, for complainant. William S. Stuhr, for defendant.
Bill by Mina Buttlar against Christian Buttlar. Heard on pleadings and proof. Decree for defendant.
John I. Weller, for complainant.
William S. Stuhr, for defendant.
PITNEY, V. C. The bill in this cause is filed by a wife against her husband to recover certain arrears of an annuity secured to her by his personal covenant under seal. That document is dated January 31, 1894, and provided for the payment of $75 a month, commencing with the following month, but not mentioning any period that it should continue. Payments under it were made and all pecuniary matters settled between the parties up to the 1st day of May, 1895. Six more payments, to October, 1895, inclusive, were made in full. In November, 1895, the defendant declined to pay more than $50, and made that payment each month up to the time of the hearing in May, 1897. The bill was filed on April 15, 1896. At that time by the terms of the agreement there was due $25 on each of the months of November, December, 1895, and January, February, and March, 1896, and the prayer is for the arrears thereof shown. The agreement is somewhat similar to that which was the foundation of the suit in Aspinwall v. Aspinwall, 49 N. J. Eq. 302, 24 Atl. 926. It recites unhappy differences between the parties, and an agreement to live separate; a covenant on the part of the husband to permit his wife to live separate from him, and not to molest or disturb her, etc., and that she might have all of the property that might thereafter in any wise come to her. Then follows a covenant on the part of the husband to pay the wife the sum of $75 a month, commencing on the day following the date of the contract, which would be February 1, 1894, payable on the 15th of each month, which the wife accepted in full satisfaction of her support, maintenance, and all alimony whatever, but the length of time during which the payment should continue is not mentioned; and in consideration of the premises she agreed with her husband that he should be entitled to receive during the term of his natural life all the rents, income, and profits of the property then owned by them in their joint names, known as Nos. 600, 602, 604, 606, and 608 Malone street, and No. 399 West street, in the town of West Hoboken, and Nos. 654 and 656 First street, Hoboken; and the husband was to pay all taxes that might be thereafter levied or assessed on the real estate, and all Interest that might thereafter come due on the mortgagesheld against the property, and all repairs that might be required, except the painting of the outside of the buildings to be done the then coming spring, the expense of which the parties were to jointly bear. She further covenanted and agreed to indemnify her husband against all her debts contracted, or that might thereafter be contracted, by her, and all money or moneys which her husband might be compelled to pay on her account, and on violation of that covenant such amount so paid by him should be deducted from the monthly payments to be made to her for her maintennce and support The husband also agreed to pay all assessments (proven in the case to amount to $484.99) then in arrear against the premises, and the wife agreed to contribute $62.50 towards such payment. The defendant took possession of the premises, has collected the rents, kept the premises in repair, and kept down the interest, ever since. He has not paid all of the taxes, for the reason, as he swears, and I think truly, that he has been unable to do so. The defense is that owing to the unexpected change in rental values the bargain turned out to be a hard one for the husband; that the rents and profits have not been sufficient to pay the taxes, keep the premises in repair and insured, keep down the interest on the mortgages, and also to pay the annuity to the wife. The West Hoboken lots were covered by five tenement houses, each containing two suites of rooms. The Hoboken, property was covered by a feed store, which was, and has ever since been, occupied by Buttlar himself. A fair but full rent for the feed store is $35 a month, amounting to $420 a year. At the date of the agreement the tenement houses were all rented, except the flat which was occupied by the husband, at the rate of $33 a month for each house; that is, $17 for the first floor and $16 for the second floor. At that rate the total income was $200 a month, or $2,400 a year. The West Hoboken premises were subject to a mortgage of $0,000, and the Hoboken feed store to one of $3,000, amounting in the aggregate to $9,000. The interest on the $6,000 mortgage was at 5 per cent., and on the $3,000 mortgage at 6 per cent., making $480 annual interest. The ordinary taxes amount to $250 a year, and the water rents on all the premises $75 more, the ordinary repairs to $200, and the insurance to $20, making a total fixed charge of $1,025 a year, or a monthly payment of $85. If the houses had been occupied steadily by tenants who paid their rent at that rate, the husband would have made a small profit out of the transaction; for while his fixed charges were about $1,025 a year, and his wife's payments amounted to $900, or in all $1,925, his income, including his own rent, was $2,400, leaving him about $475. But he had a large arrear of assessments ($485, less $62.50) to pay, and be had also to meet the inevitable losses arising from tenants failing to pay and moving out, and a part of the premises remaining unoccupied and unprofitable. The income from rents began to fall off within a year or two after the contract was made, and in November, 1895, fell off so greatly that he then, as above stated, reduced his payment to his wife from $75 to $50 a month. He was also obliged to reduce the rent. From November, 1895, to April, 1897, inclusive, a period of 18 months, the total cash income from the rents was $1,454,—an average of $81 a month. During some of the months it fell as low as $35. Adding to this $15 a month for one of the flats occupied by the husband, and $35 a month for the rent of the feed store, we have a total of $131 a month. Deducting from that the fixed charge of $85 a month leaves a net income of $46 a month for the 18 months. In the months of March and April, 1897, the rents had risen to $120 and $122 a month, respectively, besides (as I understand the evidence) the rent of the portion occupied by the husband, which would make it in all about $175 a month. The evidence satisfies me that $29 a month for each of the five tenement houses, or $145 a month for the whole, is a full price; and from that sum must be deducted something for the unavoidable loss from tenants unable to pay, or from actual vacancies. I am also satisfied that the loss of rent, occurring principally in the calendar year 1896, was owing to the depression in business, and the falling off of demand for dwellings, and not to any fault of the husband.
If, then, the defense of hard bargain is available to the defendant, I think it is made out. But for the circumstances that the relation of husband and wife exists between the parties, the remedy upon this contract would be an action at law in contract, and the suit is brought in equity simply on account of the technical rule that a husband or wife cannot sue each other at law. The question is whether the suit brought by the wife, by such a necessity, in a court of equity, is liable to equitable defenses. It was called, but I think not properly, a suit for specific performance. I think it must be considered as a simple action for money due by contract. But, having been brought into a court of equity, it seems to me that the defendant may avail himself of any equitable defense. He has not resorted to a cross bill and asked to be relieved entirely from the effect of his covenant, but he does set up in his answer, and has proven, that he has offered to resume—and he did offer at the hearing to resume — marital relations with his wife; and he further offered, by his answer, to convey to her the West Hoboken property, out and out, if she would relieve him from his covenant. Each party, under protest by the court, entered into evidence as to which was to blame for the differences between them which led to the separation, but an examination of the evidence fails to show with any certainty which party wasto blame. I think the probability is that the husband's statement of the cause is the true one, viz. that his wife insisted on collecting and appropriating to her own use all the rents, leaving him personally liable for taxes, assessments, repairs, and insurance. The arrears of taxes and assessments due at the date of the agreement indicate this. The question of the support of infant children did not enter into the contract, the two children of the marriage being grown up, and able and willing to take care of themselves. The wife and the husband appeared equally hale, hearty, and able-bodied persons, and the wife as well able to support herself as the husband. The property in question stands in their joint names, the estate being the peculiar one arising out of the conveyance to husband and wife as such, and was the result of the joint labors of both. Taking all the facts and circumstances, and the verbiage of the contract, I am satisfied that the amount of the payment fixed therein was based upon the net income of the property, and not on the earning capacity of the husband, and that it was not understood or expected that the husband was to pay more than he received in rents, but that it was supposed by both that the rents would be ample to pay the wife the whole annuity, and leave something over for the husband. Owing to the depreciation in the rental value of the property, not expected or anticipated by either party, the rents have been for a time insufficient to meet the payments. I am satisfied that the husband has done his best to make the payments and also keep down the fixed charges, and has been unable to do so. He exhibited his books of account of his personal business, and seemed desirous of making a complete expose of all his affairs. For these reasons I come to the conclusion, contrary to my first impressions, that the complainant is not entitled to relief, and that her bill should be dismissed, without costs, and without prejudice to any future suit based upon nonpayments from and after May 1, 1897. McInnes.