Opinion
03-19-1897
EGNER v. MEIS et al.
Guild & Lum, for complainant. Riker & Riker, for defendant Ida Meis. Schuyler B. Jackson, for defendants Laura Heinz and Emily Heinz. Charles Borcherling, for defendant John J. Becker.
Bill by Henry W. Egner against Ida Meis and others for partition. Decree advised for complainant.
Henry W. Egner, the complainant, and one August Meis were each seised of a one-half interest in a tract of land in Newark, as tenants in common. This tract of land was used by them as a tannery. August Meis died in August, 1894, leaving a will, the fifth clause of which is as follows: "I give, bequeath, and devise unto my son, August Meis, Jr. (with conditions hereinafter mentioned), all my real estate, and also my undivided one-half interest in the tannery business, corner Seventeenth avenue and Lillie street, in the city of Newark, and now carried on under the firm name of Meis & Egner, for the manufacture of leather. And. further, it is also my will, and I hereby order and direct, that after my decease my son, August Meis, Jr., shall immediately enter into the said business firm, and take my place as partner with Henry W. Egner, my present partner, and the said business shall be carried on without delay, hindrance, or interruption of any person or persons whomsoever. And now I do hereby order and direct the following conditions: First. That my son, August Meis, Jr., is hereby directed and compelled to allow to my beloved wife. Barbara Meis (nee Mattheus), the right and privilege to remain in my dwelling house (homestead) Nos. 139 and 141 Belmont avenue during her life, and that she can occupy one-half of the said house, and my son, August Meis, Jr., can use one-half of the said house; and, further in case either of the parties should move out of the said house, the party so moving is not allowed to put other tenants in their respective places, but that the party remaining shall then have the privilege to occupy the whole house, but for their use only, and not for tenants. Second. I further hereby direct and order my son, August Meis, Jr., to pay to my wife, Barbara Meis (née Mattheus), the sum of four dollars every week for her support during her life, and that he, the said August Meis, Jr. (my son), must pay all the expenses of keeping the house in good order and repairs, pay all taxes, assessments, water rents, insurance, &c, and he shall not be allowed to put any mortgage on the said dwelling house, or sell the same. The said homestead shall remain clear and free from any incumbrances whatsoever. Third. My son, August Meis, Jr., is also prevented of selling any part of the business property on which the tannery is located, unless by consent of my partner, Henry W. Egner, whom I also appoint as one of my executors. After the decease of my said son, August Meis, Jr., I give my estate to his children, in equal shares, and, in case he (my son, August Meis, Jr.) should die and leave no children, I then bequeath and give the same to the children of my two daughters, Julia Heinz (nee Meis) and Eliza Koegel (nee Meis), in equal shares." August Meis, Jr., died September 22, 1896, leaving a will by which he devised the said tract of land to his wife, Ida. He left no children.Eliza Koegel, one of the daughters mentioned in the will of August Meis, Sr., has no child. Julia Heinz, the other child named in the will, has three children. Ida Meis, the widow, claims that she took a title in fee simple to the one-half interest held by August Meis, Jr., during his life, in the said tract. The three children of Julia Heinz claim a one-sixth present interest in the land, subject to a right of any child which may hereafter be born to Eliza Koegel. The bill sets out these facts, and asks for partition or a sale of the property. The defendant Ida Meis answers, claiming to own the one-half interest in the tract as devisee of her husband, August Meis, Jr., and she concurs in the desire of the complainant for a partition or sale. The defendants Laura and Emily Heinz, the children of Julia Heinz, also answer, setting up their right as such right is set out in the bill. The other child, John J. Becker, files no answer.
Guild & Lum, for complainant. Riker & Riker, for defendant Ida Meis.
Schuyler B. Jackson, for defendants Laura Heinz and Emily Heinz.
Charles Borcherling, for defendant John J. Becker.
REED, V. C. (after stating the facts). It was suggested at the hearing that a question in regard to the legal title to the one-half interest in the partnership real estate, the subject-matter of this suit, was involved, and that, therefore, it was essential that the suit should be halted until that question should be settled in a court of law. No such objection to the exercise of the power to partition in this court was taken in the answers of the defendants. But in the case of Slockbower v. Kanouse, 50 N. J. Eq. 481, 26 Atl. 333, the court of errors decided that a court of equity, although its jurisdiction was not challenged, could not exert a power to settle a legal title in a partition suit, even by consent of the parties. In the case of Vreeland v. Vreeland, 49 N. J. Eq. 322, 24 Atl. 551, however, it was ruled that, where there were other equities between the parties which must be settled in the court of chancery, then the court might, in conjunction therewith, settle legal title in such suit, although it involved a partition of land, for the purpose of giving adequate relief in all particulars. In the present case, however, there is no attack made upon the right of the complainant to a moiety of the tract of land in question. His right to have one-half set off to him in severalty is left unquestioned. The only question of legal title concerns the remaining one-half interest in the property. The contest in respect to this, of course, is between the defendants themselves. Now, all the parties who claim a right to that one-half interest are parties to this suit, and are therefore now before the court. There is no reason that I can perceive why the complainant, because of this contest between the defendants over the title to the one-half interest owned by Mr. Meis, should be precluded from having his own one-half interest, which is not involved at all in the dispute, set off to him in severalty. In Phelps v. Green, 3 Johns. Ch. 302, Chancellor Kent held that, where there was a conflict between the defendants as to their title in a moiety of the property to be partitioned, the complainant should have his share set off to him, and the defendants should have their share aggregately set off to them. He also held that under such a condition of affairs the complainant should pay the costs of the proceeding. The course taken by Chancellor Kent was entirely equitable, and will be adopted in this cause, as far as possible. I do not perceive, however, any practicable way of making an actual division of the property. I do not see how it can be severed into two parcels of equal value without injury to all parties. Nor, in my judgment, can the tract be so divided that the difference in the estimated value of the two portions can be supplied by a money equivalent without great prejudice to the interests of all the parties. The only theory upon which a division can be possibly made is by regarding the whole plot as more valuable for building lots than for the purposes of a tannery, and by dividing the plot upon the theory of lot value for building purposes. Now, the evidence does not show that the tract of land for building purposes is worth more or as much as it is for the purposes of manufacturing leather. Nor can I see from the testimony that it would be of advantage to take a part of the tract, upon the assumption that such part is not needed for tannery purposes, and to divide it, and afterwards sell the remaining part of the tract as a tannery. The available space in the whole lot was by Messrs. Egner & Meis used in conjunction with the tannery business, the open space being employed for the purpose of drying hides. Without a change in the buildings, the cost of which is uncertain, this drying process cannot be accomplished elsewhere than upon this open space. In my judgment, the property should be sold. The only question is the method in which it should be sold. The ground upon which the defendant, on the hearing, objected to a sale and insisted upon a division, was that, if the property should be sold as a tannery, there is no certainty that any other person than the complainant, who is a tanner, would care to buy, or, if so, would give an adequate price for, the property, and, therefore, that it is likely that the property would be sacrificed. This view is based upon the notion that no one will bid for the property except tanners, or persons who purpose to use the property for the business of manufacturing leather. But the property is valuable for other purposes than a tannery. It can be, as already observed, turned into building lots, and it is probable that it wouldbring as much for building lots as for any other purpose other than a tannery. Regarding the value of the property as suitable for building purposes, the complainant would stand upon the same footing as any of the defendants, as purchasers at the sale; and, if the property should be regarded as worth more for a tannery than for building purposes, any one who should desire to purchase would be able to discern that fact, and the complainant would have to pay more than it would bring for building purposes, or any other purpose than tannery purposes. And, if any part of the land could be regarded as more valuable for building lots than for use as a part of the tannery, that fact would be as obvious to any other intending purchaser as to the complainant, and the possibility of so using the lot would be a factor in estimating what should be paid for the whole lot. My own judgment is that the lot would bring as much, sold as an entirety, as it would if sold in some other way. I have concluded, however, that if the defendants think that the property will bring more if a part of the tract not covered by the building and vats used in the tannery business should be sold separately, and then the rest of the property would be sold as a tannery, than if the whole was sold as an entirety, I will afford an opportunity to counsel to apply for directions to the master in respect to the method of sale. It may be that a practicable plan can be devised by which the relative availability of the two plans can be tested at the sale, by taking bids in both ways, upon a condition that the court will accept those bids which will realize the most money. At this stage of the suit, I will advise a decree that the complainant is entitled to partition, and that the property is not capable of division and should be sold. Onehalf of the money realized will be ordered paid into court, and the right to this portion can be tested by an issue at law, if desired by the parties.