Opinion
07-09-1889
ENYARD v. NEVIUS et al.
A. V. Schanck, for complainant. J. S. Voorhees, for defendants.
A. V. Schanck, for complainant. J. S. Voorhees, for defendants.
After the death of their father, Mr. Nevius and his sister were the only heirs at law of the real estate of which partition is prayed. David took possession and managed a boarding establishment from the time of his father's death in 1876, until in 1879. The weight of the testimony is to the effect that David rendered accounts and statements of all his receipts and disbursements to Ella for all of this period. In 1879 Mrs. Enyard, with her husband and two children, came to dwell with her brother in the same house. They entered into an agreement to the effect that they would continue the boarding business, and they did so continue it. One of the stipulations was that Ella was to receive all of the moneys paid in, and hand them over to David, and David was to deposit them, and make all payments. The families of both were to be provided for alike at the same table. There were three mortgages on the lands,—one for $5,000, held by Ella, and two for $1,000 each, held by the wife of David. It was agreed that Ella should pay for the board of herself and family the amount of the interest accruing on her mortgage, ($30 per month,) and $2 in cash; and that David should pay the sum of $32 per month. After the two mortgages were given, $10 of this board was paid by the interest accruing monthly. They lived together and conducted this business without any other understanding until the 29th of August, 1886.
1. There is some difficulty in ascertaining the whole amount of the proceeds of the business from the fact that David kept no separate account of the money. He was one of the administrators of his father's estate, and mingled all of the funds from both sources in one bank-account, and made all of his drafts against that fund. But I do not find any great embarrassment on this score, sinceboth Ella and David were interested in both funds alike, and since David, as surviving administrator, filed an account in the orphans' court, which was allowed and passed without exceptions. And looking at this phase of the question further, I cannot see that there was any very great opportunity for David to misappropriate the moneys arising from the business without speedy detection by Ella; for the business was not large, and all of the receipts first passed through her hands to David, who then handed her what she needed to furnish the establishment with provisions from day to day, and with the balance he was supposed to discharge other bills against the establishment.
2. There are three circumstances which stand in the way of charging David with anything for the time he occupied the premises after his father's death, and before Ella moved in: (1) The fact that he had always accounted to Ella, and, whether this item was included or not, she never raised any question about it; (2) the fact that they made a new agreement about the same premises, which it is fair to suppose was also a settlement of all former matters pertaining to the same estate; and (3) the question of his. liability does not appear to have been raised until now, eight or nine years after such alleged liability. Nor could Mr. Enyard have continued to pay the board of himself and family, as he did, from the time of his return, in 1879, until he died, in 1880.
3. To ascertain the amount due upon the several mortgages, resort will have to be had to the agreement or understanding of the parties, and also to their acts in the premises. In the beginning, it was agreed that each family should pay $32 per month for board. Mrs. Enyard was to indorse $30 of this on the bond and mortgage which she held, and pay the balance in cash; and David was to indorse $10 on the bond and mortgage which his wife held, and pay the balance in cash. This was afterwards reduced to $30 per month, and they acted upon this understanding until April 10, 1882, about which time David says that Ella proposed that the board should be further reduced to $25 per month, and that from that time on until he left they acted on that understanding. When I came to examine the entries made in the books which they have kept, some of which are in the handwriting of Ella, and also to consider the testimony offered, I conclude that the last understanding between them was the one last mentioned. The interest was thus paid on the two mortgages held by the wife of David up to May 10, 1886. But it is admitted that David at that time was still owing $80 for board. 1 think the preponderance of proof is that since then David has paid into the common fund $200, for which he is entitled to credit. David and his family left the common home August 29, 1887; and at that time he owed for board, after giving him credit for the $200, a balance of $271. This money will be deducted from the interest due upon the two mortgages, which will be calculated from May 10, 1886, until the date of the final decree. The rights of Ella under her mortgage must be ascertained by the same terms. The interest upon her mortgage must be considered as paid up to April 10, 1882. From that time she was only to pay for board $25 per month, and of course her mortgage can only be charged with that sum from that time up to the time when David left,—August 29, 1886. She is entitled to $5 per month additional, from May 10, 1882. I think their agreement terminated August 29, 1886.
4. There was also an agreement between this brother and sister that certain moneys which the sister advanced to pay taxes and other claims should be paid back to her out of the proceeds of the real estate when the same should be sold. The testimony satisfies me that she advanced money for the payment of the following items, viz.: Tax-bill for 1882, $148 and $70; for 1884, $163.10, and $2 for poll-tax; for the year 1885, $157.90, and poll-tax, $1; for 1886, $179.36; on other accounts, to Oliver, $10, $50, $50, and $50; and in 1884, $6; Russell & Son, $10; in 1885, Van Amen, $20; Van Cleff, $50; bearer, $5; bearer, $5; in 1886, for the house, $10; for coal, Vermule, $4.50; for coal, Vermule, $4.50; for coal, Vermule & Son, $4.50; for coal, Vermule & Son, $9; bearer, $10; bearer, $7; Howell, Totten & Co., $60.91; in 1887, Gas-Light Company, $5.20; Mutual Fire Insurance Company, $18.75; bearer, $4.50; bearer, $8; bearer, $12; Lippincott, $8; I. M. Nevius, $7.96; in 1888, Van Amen, $3.25. The payments to Oliver were all in the year 1887.
I have given this case an unusual amount of attention, in the hope of fully adjusting all the matters of difference between this brother and sister, so far as their business relations in the boarding business is concerned. The only thing that may be open to controversy respecting the real estate is the liability of Ella for any rents she may have received from any portion of the premises since her brother left; but, as there is no evidence on this score, I take it for granted that she received none. I have not attempted to show whether David is still liable for the balance found to be in his hands by the decree of the orphans' court or not.
If counsel cannot agree, from the foregoing conclusions, what amount is due to each of the parties, I will order a reference. I think that Ella is entitled to interest on the tax-bills from the time of payment, and on the other bills from the expiration of the year; that is, the items for each year, beginning with April 1st, should be added, and the interest calculated on the aggregate until the date of the decree. This is fair, because both agree that she was to be repaid out of the next board moneys, and she has not been so paid. The amount of the taxes so paid, and the interest, will be declared to be alien prior to the mortgages of Mrs. Nevius. All costs will be charged on the proceeds of the sale.