Cole v. Cole

108 N.Y.S. 124 | N.Y. Sup. Ct. | 1908

Wheeler, J.

This is an action to settle the accounts of the parties to this action .for rents received and moneys expended in relation to several parcels of real estate owned by them as tenants in common as heirs at law of Lueina A. Cole, who died intestate on March 19, 1900. The property was partitioned hy proceedings taken in an action brought for that purpose; but, pending the partition, the various parties received and expended various moneys in relation to the property in question. The differences arise over certain items of the accounts of some of the parties, which will receive attention seriatim.

The plaintiffs credit themselves with the payment of certain taxes on what was known as the homestead property, consisting of a house and lot in the village of Warsaw, which they occupied during the period in question. The defendants claim that, inasmuch as they lived in and occupied this place and had the benefit of its use without the payment of rent to their cotenants, they are equitably chargeable with the duty of paying taxes and making ordinary repairs.

This is the law. While a tenant in common is in possession of premises he cannot be charged with rent but must pay taxes and ordinary repairs. McAliar v. Delaney, 19 Wkly. Dig. 252.

This is certainly an equitable rule. A tenant ought not to be permitted to enjoy the benefit of the use and occupation of real property without bearing the burdens of keeping the premises in ordinary repair and of keeping down the taxes on the same.

The plaintiffs also credit themselves with commissions for collecting the rents of other parcels of the real estate owned in common. These items must be disallowed. In the absence of an agreement, one tenant in common is not entitled to compensation for collecting rents belonging to himself and his cotenants. Myers v. Bolton, 151 N. Y. 399.

The plaintiffs also credit themselves with certain taxe paid as follows: July 13, 1904, village corporation taxes, eighty-six dollars and eighty-four cents; July 26, 1905, village corporation taxes, ninety-nine dollars and eighty cents; September 21, 1905, school taxes, fifty-seven dollars and ninety-five cents. These taxes were assessed against “ ColrChester Est.” The estate was the estate of Lueina A. Cole and not the estate of “ Chester Cole.” These assessments were therefore absolutely void and never became a lien on the property. Trowbridge v. Horan, 78 N. Y. 439; Cromwell v. MacLean, 123 id. 474; Matter of McCue, 162 id. 235 ; People v. Gaus, 169 id. 28.

We think, therefore, that the plaintiffs could not pay an absolutely void assessment and deduct the amounts paid from the rents collected.

With these corrections the account as stated should stand. The court regrets it is forced to disallow the items of taxes erroneously assessed and evidently paid in good faith by the plaintiffs. In view of this fact and the fact that costs of the action are in the discretion of the court, no costs will he allowed to either party.

Judgment accordingly.