25 N.J. Eq. 48 | New York Court of Chancery | 1874
In ¡864, the complainant married Jane McCanna, then the widow of John McCanna, deceased. She had one child, the defendant, the issue of her marriage with McCanna. The defendant was about eleven years old when her mother was married to the complainant. Her father died seized of two vacant lots in Trenton, then of comparatively small value. After his death, his widow built, at the cost of about $500, a small house on one of the lots and resided in it. After her marriage to the complainant, the latter built another house on the front of the same lot, and a house on the other lot. He improved the lots in various other ways, by grading, flagging the sidewalks, Ac. He and his wile dwelt in one of these houses and rented out the other. He paid the taxes and assessments on the property. From the time of his marriage to this time, he has been in possession of it. His wife had dower in it, but it was never assigned. When the buildings and other improvements above referred to, were put on the property, both the complainant and his wife supposed that the land belonged to the latter, and they first learned their mistake when she, being as she supposed in extremis, in September, 1871, called in a lawyer to make her will. She died in September, 1872, leaving three children, the defendant and ¿wo other daughters, the issue of her marriage with the com
This case is one of great hardship. The improvements are proved to be of the present value of more than $2000-They were all made by the complainant except the small house before mentioned, built by his wife during her widowhood. Against the value of these improvements, and the payments made on account of the property by the complainant, there is no offset except the value of the use and occupation of the lots, which, undoubtedly, is comparatively very insignificant. The result of the suit at law, must be h> de
I do not feel at liberty, even for so conscientious a purpose as to mitigate the unquestionable hardship of the complainant’s case, to create a liability where no legal or equitable foundation for it exists. The case in 26 Beavan is in point. There the step-father’s estate was chargeable with certain trust money received by him, the property of the step-children. His executor sought to offset it by a claim in favor of the step-father for the maintenance of the children. The master of the rolls, Sir John Romilly, refused to allow it.
I am constrained to refuse the relief the complainant asks, pn this ground also. The money paid in satisfaction of the mortgage, however, with lawful interest from the timé when it was paid by the complainant, should be declared to be an equitable lien on the land, and should be charged thereon accordingly. The taxes, &e., paid by the complainant in respect of the property, and the improvements made by him thereon, are enough to answer any just demand of the defendant for rents and profits. In any account of these rents and profits, between her and the complainant, she would be in equity, entitled to only two-thirds thereof, during the lifetime of her mother, whose dower in the premises was never assigned. The complainant is entitled, also, to his costs of