Opinion
September, 1904.
William L. Mathot [ Adolph Bloch with him on the brief], for the appellant.
Isaac N. Miller and Herman G. Loew, for the respondent.
This is a suit to procure the reconveyance of land conveyed by the plaintiff to the defendant's grantor and devisor to secure him as a surety upon a guardianship bond. The trial court has decreed a reconveyance of an undivided half interest in the property sought to be recovered. Of this the defendant does not complain. An accounting has been directed of the rents and profits received by the defendant while in occupation of the property, upon which accounting the defendant is to be credited with such amounts as she proves to have been expended by her for the improvement of the premises. The finding that she is entitled to such credit is evidently based upon the doctrine of Thomas v. Evans ( 105 N.Y. 601) and like cases, to the effect that a true owner seeking the aid of equity to establish his title to real estate must reimburse a bona fide claimant for improvements made by him. The defendant insists upon this appeal, however, that her right to recover for such improvements should not be limited, as it is by the findings and judgment, to a period subsequent to December 27, 1900, as she acquired title to the one-half of the property which she has been allowed to retain at an earlier date. But there is no finding that she was previously in possession of the premises. The only finding on the subject is that since the 27th day of December, 1900, the defendant has been "in the actual possession, control and occupation of the said premises, and has collected and received and still collects and receives the rents, issues and profits thereof." As I understand the Thomas case and the other decisions to the same effect, the right to reimbursement which they assert can be invoked only in favor of parties in actual possession and control of the premises in dispute for beneficial expenditures made during the time of such possession and control. The evidence taken on the trial is not before us, as the case comes up solely on the judgment roll and exceptions to the findings; and as the only finding relative to the matter makes the defendant's occupancy of the premises begin on December 27, 1900, I do not see how we can interfere with the judgment which restricts her right of reimbursement to expenditures made subsequent to that date.
I, therefore, advise an affirmance.
All concurred.
Interlocutory judgment affirmed, with costs.