Opinion
11-21-1895
FLYNN v. O'MALLEY et al.
Edward Kenny, for complainant. Charles T. Glen, for defendants.
Bill by Cecelia Flynn against Edward A. O'Malley and others for partition and other relief.
Edward Kenny, for complainant.
Charles T. Glen, for defendants.
REED, V. C. The bill in this cause is filed by the complainant primarily to obtain a partition of a tract of land of which her father died seised. It incidentally claims other relief. The facts set out in the pleadings and proved on the hearing are that Charles Flynn died on March 16, 1878, seised of a house and tract of land, about an acre in area, inclosed as a curtilage of the house; that he left a widow, Mary, and four children, viz. Annie, Catharine, Cecelia, the complainant, and Joseph. The house consisted of one part of one and a half stories in height, and another of one story in height. At the time of the death of Charles Flynn, he, with his wife and children, lived in the one and a half story portion of the house. In the one-story portion of the house lived Edward A. O'Malley, one of the defendants in this suit. O'Malley at that time was paying for the portion of the house which he rented the sum of eight dollars per month. Soon after the death of Charles Flynn, by an arrangement between O'Malley and the widow, they interchanged the portions of the house which they had occupied, O'Malley moving into the part theretofore occupied by Charles Flynn and his family, and Mary Flynn and her family moving into the part theretofore occupied by O'Malley. The rent which O'Malley had theretofore paid was raised from $8 to $12 per month. Affairs continued on this basis until 1880. In that year Annie, having married, sold her undivided one-third interest in the property to O'Malley; Joseph, her brother, having died in April, 1878. Thereafter O'Malley ceased paying rent at the rate of $12 a month, and paid at the rate of $9 a month up to May, 1893. It appears that the dower right of the widow in the premises has never been assigned to her. It appears that she has collected some rents for the pasturage of the lot; that she has paid taxes to the amount of $99.48, and she says she has done some repairs. O'Malley also, since his purchase of Annie's interest, has paid taxes to the amount of $21.36. The bill prays that an account may be taken of the rents, issues, and profits of the premises in the possession and occupation of O'Malley; that he be decreed to pay $9 a month to such person as may be appointed to receive the same, or, in case of the sale of the premises, It shall be taken account of in the division of the proceeds. The defendant O'Malley, in his answer, denies that the complainant is entitled to receive from him an equal half part of rent or compensation for his use and occupation of the premises; that Mary Flynn had not paid all the taxes, and had not kept the premises in repair; that she should account for the rents she received from him (O'Malley); that she should be charged with a reasonable rental for the use of that portion of the house which she occupied; and that O'Malley should have his reasonable share of such rents. He also files a cross bill setting up the same facts, in which he prays an accounting.
The facts, as proved both by the admissions in the pleading and the evidence adduced at the hearing, seem to show conclusively that the rent due from O'Malley belongs to the widow. There was some evidence introduced for the purpose of showing the character of the house,—whether it was a double house or a single house. This was introduced for the purpose of showing whether that portion of the house which O'Malley occupied at the time of the death of Flynn was to be regarded as a portion of the mansion house, or was to be regarded as a separate tenement. My impression is that the whole house is a single structure, and that O'Malley rented rooms which were a part of the mansion house of Charles Flynn; but the decision of this question I do not regard as material, for, if the house is viewed as containing two distinct tenements, yet that fact does not affect the right of the widow to receive the rent due from O'Malley. As already remarked, at the time of her husband's death he was in possession of the one and a half story part of the mansion. It is incontrovertible that that part was the mansion house, and that the tract of land surrounding it was its curtilage. Now, it is entirely settled that the widow, before assignment of dower, has the right to rent the mansion house or its curtilage, or any part of it, and to collect and hold the rent. Craige v. Morris, 25 N. J. Eq. 467; McLaughlin v. McLaughlin, 22 N. J. Eq. 505. The rent that was due from O'Malley for that part of the house was due to the widow until her dower was assigned. Therefore that rent has no pertinency to this application for partition between the children of the widow, and no decree can be made in respect to it in this suit. Nor can the widow be called upon to account for the value of her use and occupation of the other portion of the tenement. It was obviously used by her as the head of her family, consisting of the children, who, until 1886, were the entire owners of the premises, and after 1886 were owners of two-thirds of the premises; and it is entirely settled that under such circumstances a tenant in common cannot be called upon to pay rent.
In respect to the other matters for which an accounting is claimed, the posture of affairs seems to be this: The widow, before assignment of her dower, by the law settled in this court, is not in as tenant of an estate for life. Spinning v. Spinning, 41 N. J. Eq. 427, 5 Atl. 278; Cronley v. Cronley, 40 N. J. Eq. 30. The taxes the widow has paid seem to have been paid on account of her children, and in adjusting the partition they should be taken into account. So far as appears, they amount to $99.48; one-third of which should be paid by O'Malley, whichmakes $33.16. O'Malley himself paid $21.36, and two-thirds of that should be paid by the children, viz. $14.24. So O'Malley will be really indebted to the others the difference between these sums. As already remarked, O'Malley is undoubtedly bound to pay nine dollars a month, but it is due to the widow as dowress, and not to her as representative of the children, the joint tenants. As suggested on the argument, the matters are so simple that they should be adjusted without resorting to the expense of an accounting.