Baker v. KennerupBaker v. Kennerup
Thе defendants were husband and wife at a time when they held two lots of land by the entirety. Subsequently, they were divorced, whereby each of them bеcame seized of an equal undivided one-half interest in the land as tenant in common. 2 Bish. Mar. D. § 1649 et seq.; 13 R.C.L. p. 1121; Butlar v. Butlar, 67 N.J. Eq. 136.
During their marriage the husband undertook to erect a building upon such land, but found that he was without $372.30 of the amount necessary to complete the building. It was thereupon agreed between him and his wifе that if she would advance this sum toward the completion of the building that he would repay her. To secure the wife a mortgage was made and delivered to the complainant. This mortgage has been foreclosed, the property above referred to sold by the shеriff for $1,378.84, and out of that sum he has deducted his own charges and paid to the wife the principal of her debt and interest thereon, amounting in аll to the sum of $483.42. The sheriff has deposited with the clerk of this court the sum of $550.22, which, it is conceded, should be supplemented by $76.23 now in the hands of the petitioner, the wife, so that there is a surplus of $626.45 to be divided between the defendants.
The mortgage was decreed a valid lien, for the sole and solitary reason that the husband had bound himself by a valid, express contract with his wife to pay it. The question to be resolved is whether or not the proceeds of the mortgage already paid to the wife should be charged wholly against the
In a memorandum filed on behalf of the man it is feebly argued that the prоmise to repay to the woman was not enforceable at law, because made on a past consideration. The proofs before the master disclose no such situation. The man clearly testified that he promised to repay before the advances were made. It is true that under the insistent leading of his counsel he finally caught the cue and said that his promise was made after the moneys had been paid by the woman. Surely, it is not expected that the court will give effect to what amounts to the lawyer‘s desires rather than the witness’ testimony. It must be borne in mind that my finding is that the man bound himself by a valid promise, made upon a sufficient consideration, that he would restore to thе woman, who was then his wife, $372.30, with interest, without in any way affecting her right, title or interest in their joint real estate. In fact, it is my opinion that the decree makes that the law of the case.
On behalf of the husband, it is argued that the fund should be divided into two equal portions of $313.22 and one portion given to each of the defendants. The wife, on the other hand, maintains that she should receive one-half of the present fund and the othеr half which would have gone to her former husband (if it had not been for his express contract), so far as that amount will extend.
After deducting his feеs and charges there remained in the hands of the sheriff $1,109.87, which, it seems to me, should have been deposited with the clerk. Now, if there were nоt the complicating circumstances of the man‘s contract to repay, each of the contesting parties would receive $554.93. If there now be deducted from his portion $483.42, representing the advance of $372.30, with interest, to the date of conveyance by the sheriff, it will leave a balance for the man of $71.51, and the remainder of the fund amounting to $1,038.35 should be paid to the woman.
By this method, which is the one аlways adopted upon partition, the same result is reached as that to which the special master came. Of course, this will be а great disappointment to the man, and I should be glad if some more satisfactory division could be made. It is true that he created the estate and that the lion‘s share of what the woman is to receive came as the result of his generosity to her when they were living togethеr as man and wife; but it is entirely the result of his own voluntary action. If he had built the house entirely with his own means, upon land in which she had no interest other than her inchoate right of dower, and if he had then delivered to her a deed and paid the expense of the recording of the same, we would have no worse situation upon their subsequent falling out than was disclosed in the case of Kelso v. Kelso, 95 N.J. Eq. 544; affirmed, 96 N.J. Eq. 354, where neither this court nor the court оf errors and appeals was able to save from his own folly a man who had stripped himself, not of a few hundred dollars, but of a considerable estate representing the accumulation of a lifetime when he was approaching his seventieth year of age.
It is further argued that there was no gift by the man of the value of the improvement that he put into the joint estate. There is no need that there shоuld have been any express gift to the other tenant, because it is elementary that the law supplies such a promise where improvements are made to property held as this land was. The peculiar relation existing between them differentiates this case from any where one coparcener is entitled to compensation for betterments or to an equitable partition.
It is further urged that if оne-half of the remaining money of $313.22 is now paid to the woman, it will when added to the amount already properly received by her from thе sheriff, equal the gross sum of $796.64, which is exactly $483.42 more than the man will receive, which would be $313.22. This difference would be exactly the amount the man promised to pay, together with accrued interest. The difficulty with this solution has already been noted. To state the matter with a different and mоre convenient set of figures, it may be put thus: If A and B are entitled to the payment of the sum of
The exceptions should be overruled.