Opinion
05-18-1898
THIELE v. THIELE et al.
Thomas F. Noonan, Jr., for complainant. James A. Gordon, for defendants.
Bill by Charles Thiele against August Thiele and others. On exceptions to master's report, finding a lien in favor of a tenant in common for advances made for the payment of taxes and assessments. Exceptions overruled.
Thomas F. Noonan, Jr., for complainant.
James A. Gordon, for defendants.
PITNEY, V. C. The ancestor died in 1880, leaving a widow and four children,—two sons and two daughters—all of whom were adults. The indications are that the widow was well advanced in years. The ancestor appears to have left some little personal property, which was taken possession of by the widow, and partially distributed among her children. By common consent the widow continued to occupy the premises as her home, and to receive all the rents and profits thereof. Under those circumstances, it was her legal duty to pay the taxes (not assessments), insurance, and water rents, and to make all necessary repairs. This she seems to have done up to about the year 1890. The evidence indicates that she had a trifling income from an underletting of a part of the premises, but not sufficient to support her; and her son August Thiele advanced money for that purpose, and also to pay taxes, water rents, and insurance, amounting to about $800. The parties are Germans, and ignorant of the laws of this state, and seem to have supposed that their mother was the absolute owner of the property. Shortly before she died August ascertained the truth as to the situation of the title, and conferred thereon with his brother and sisters, and they appear to have all agreed that he should be reimbursed for what he had advanced, and for that purpose a mortgage was prepared for three-fourths of the amount, to wit, $000, to be executed by the two sisters, brother, and mother to him. The mortgage was executed by one of the sisters, a Mrs. Kunz since deceased, and by the mother, but the other brother and sister refused to join in it. In that condition of affairs the bill for partition was filed by Charles Thiele against his mother, his brother, August, and a sister, Mrs. Shock, and the children of the deceased sister, Mrs. Kunz. The mother died afterthe bill was filed. August, by an answer, set up a lien upon the premises for taxes, assessments, water rents, repairs, and insurance paid. The matter was referred to a master, who reported in favor of August for the taxes of 1888, 1891, 1892, and 1894, with interest; for water rents for the same four years, with interest; for an assessment for benefits of $188, made in the year 1891, with interest; also another assessment for benefits, made in 1893, with interest; and for repairs and insurance, several small sums,— in all, $583.06.
The only ground taken in argument against this finding was that these payments were not made, either directly or indirectly, by August Thiele, but were made by his mother out of her own funds. It was not contended that, if he had actually supplied the money for that purpose, he should not be reimbursed out of the property. Although it was the legal duty of the widow, occupying the premises, to pay these taxes, yet, if she failed to pay them, they, and also the water rents, would be a lien upon the premises, and the property would be sold to pay them. The occupation of the premises by the widow was by the common consent of all her children,—a sort of tacit family arrangement entered into for the purpose of properly supporting the mother; and the evidence shows that it became necessary, during the latter part of her life, in order that she should be supported, to relieve her of the burden of paying these taxes. And, under the peculiar circumstances of the case, I conclude that the children, by their acquiescence in their mother's occupation, and with their knowledge of her poverty, waived their right to have her pay the taxes and water rents. The two assessments for benefits stand on a different basis. It was not her duty to pay those. So that the only question is the one of fact which was litigated before the master, whether August Thiele actually furnished the money to make these payments. On this question I think the clear weight of the evidence is in favor of the master's conclusions. For these reasons I will advise that the exceptions be overruled.