208 Pa. 199 | Pa. | 1904
Opinion by
This was a proceeding in equity for the partition of a certain piece of real estate situate on the east side of Eighth street and south side of Race street. George Flowers died seized of this property and left surviving him a widow and nine children, six daughters and three sons. The original bill was filed by Americus Lancaster as trustee for Josephine Flowers and Anna F. Richardson against the other parties in interest. Subsequently in 1894 an amended bill, amendatory of the original bill, was filed, and it averred title and prayed for partition and an account for rents received. Answers were filed and a referee to decide who was entitled and subsequently a master to make partition were appointed. He reported the respective interests in the property, and, as the same was not divisible, a decree that the property be sold at public sale was made, and out of the purchase money received an account be stated between the parties of the rents collected. Exceptions were filed and the late President Judge Abnold, after disposing of these exceptions, awarded, subject to subdivision, one seventh to the respective interests, among whom was Anna F. Richardson, daughter and grantee of Washington Flowers, and who was awarded a one seventh interest. This court affirmed the decree thus made in a per curiam based upon the opinion filed in the court below. The property was accordingly sold for the sum of #86,600, and the master filed a report of the distribution of this sum among the respective parties in interest.
Before him a claim was made against the individual interest of the complainant Anna F. Richardson, based upon a mortgage given by Washington Flowers, her predecessor in title, to David Hailer, April 16, 1858, to secure the payment of the sum of #1,240 with interest. This mortgage after different assignments was assigned on April 18,1860, to Catherine Flowers, who died in December, 1865, leaving a will of which the
From 1886 to 1900 the complainant Anna F. Richardson and her predecessors in title received one twenty-seventh of the proportion of moneys received from the property. She contended that as the decree established that she was entitled 'to one seventh interest instead of one twenty-seventh that she Avas entitled, in the distribution of the principal, to have recouped to her, the money thus improperly received by the respondents. The master, however, held that he had no authority to state an account of rents as he was appointed for the specific purpose of making partition. To this complainant excepted and the court below sustained her exceptions. Judge Arnold in his opinion held that the presumption of payment of the Hailer mortgage had not been rebutted, and that in view of the Act of June 24, 1895, P. L. 237, the master should state an account of rents, but that as complainant and her predecessor in title had taken no steps to establish their rights to rent prior to filing the amended bill or made any demand therefor, but had received their share of rents without making any demand for a greater proportion, the master should take an account of rents received since March 30, 1894, the date of the filing of the amended bill. Accordingly the master filed a final report stating an account and awarding to complainant one seventh of the rents so collected, making a total of $3,582.56, for which they were to claim an allowance out of the respective interests of the respondents under the decree of court, such allowance being specifically stated. The court below by a decree dismissed the exceptions filed to this report and confirmed the same, and directed the master to make distribution accordingly.
The assignments of error in the two appeals substantially raise two questions, first, whether the presumption of the payment of the Hailer mortgage was rebutted, and second, whether there should be any accounting for rents collected and if so whether the same should commence from the date of the filing of the amended bill, to wit: March 30, 1894, or from a period commencing six years prior to that date.
The contention in regard to accounting for rents was trilateral. First, whether there should be any accounting for rents collected. Second, whether the accounting for rents shall extend to a period of six years from the filing of the amended bill. Third, whether the accounting shall extend from the filing of such bill to the sale of the property in the partition proceedings.
When the report was filed, Judge Arnold in the court below held that in view of the well recognized principle of common-law, there could be no accounting for rents between tenants in common, but subsequently when the attention of the court was called to the act of 1895, held that in view of that act there could be an accounting of rents. It is contended that this act only applies to cases where some of the tenants are in possession and others are out of it.
The English statute of 4 Anne, c. 16, sec. 27, enables one tenant in common to maintain an action of account against his co-tenant as bailiff for receiving more of the income than his just share or proportion, and the English courts have held that the statute applies only where “ one tenant in common receives the money from another person to which both parties are entitled by reason of their being tenants in common and their interests, as such, and of which one receives and keeps more than his just shares: ” Henderson v. Eason, 79 Eng. Com. Law Rep. 701. The Act of June 24, 1895, P. L. 237, contemplates that where the property is held by tenants in common that the parties in possession shall have deducted from their distributive shares the rental value to which their cotenants may be entitled.
In view of the pleadings and proofs the learned judge below was not in error in holding that “ a cotenant may be in possession either by himself or his tenant and if a cotenant receives more than his share of the rent paid by the tenant in possession and the cotenant so receiving such rent must account to his cotenants for his share thereof and this may be done in proceedings for the division of the proceeds of the sale in partition.” He accordingly held that the account should be stated from the time of the filing of the amended bill, to wit, March 30, 1894, and refused complainants’ claim to go back for a period of six years from such date, and in this it is contended by the appellant, the complainant in the bill, that the court erred.
In Follmer’s Appeal, 37 Pa. 121, it is said by Mr. Chief Justice Lowrie : “ At several successive family meetings pay
In Drake v. Lacoe, 157 Pa. 17, Mr. Justice Dean said: “ It turned out from the evidence that returns had been made and received without objection during the years for which the accounts were asked, and several years elapsed before any other accounting was asked for. Even if the accounting was not such as stipulated for in the contracts, it was practically impossible then for defendants to make any other; therefore equity demanded that plaintiffs should be content with what they had so long neglected to object to.”
In Norris v. Crowe, 206 Pa. 488, in an opinion by Mr. Justice Dean, it is said : “ But a case directly in point is decided by the Supreme Court of California reported in 20 Cal. 637, and in 81 Amer. Decisions, 137, Kenyon v. Welty. In this ease a contract was entered into by both parties under the belief that the law had. been established by a decision of the Supreme Court made some time before. Clearly both parties entered into the contract under the view of the law as announced by the Supreme Court. Sometime after, the court overruled its decision in the first case, and an action was brought to set aside the agreement on the ground that it had been made because of a mutual mistake of law. The court refused to disturb the contract saying : ‘ Indeed the weight of authority in the United States is, that mistakes (of law) unless accompanied with special circumstances, under influence or misplaced confidence, constitute no ground for relief.’ ”
In Rogers v. Ingham, L. R. 3 Ch. Div. 351, it was held that suit could not be maintained where “ an executor acting on the advice of counsel on the construction of a will proposed to divide in certain proportions a fund between two legatees. One of the legatees being dissatisfied took the opinion of counsel, which agreed with the former opinion. The executor then divided
Subordinate to these principal contentions are two: First, that the complainant was not entitled to an account prior to the deed of May 20, 1896, by which the interest of Josephine Flowers was conveyed to appellant. This deed conveyed all and singular the estate, real, personal and mixed to which the grantee was entitled or which she may thereafter be entitled to. The master finds that the deed was intended to divest the life interest of Josephine Flowers in said trust estate and to merge it into the estate in remainder, thereby vesting in Anna F. Richardson all the rights of Josephine Flowers either in the principal of the estate or in any claim arising therefrom and that the deed carried with it any interest in rents which had accrued as well as those which were to accrue. The language of the deed imports this and it was not error for the court below to confirm his findings.
Second, that the complainant was not entitled to interest upon the amount of rents to which she made claim. That she was properly awarded such enterest needs no extended discussion. The warrant for it may he found in the opinion of Mr. Justice Dean in the case of McGowan v. Bailey, 179 Pa. 470.
The assignments of error are not sustained, the decree is affirmed and appeals in both cases are dismissed at the cost of the respective appellants.