Mastbaum v. MastbaumMastbaum v. Mastbaum
This is a partition suit in which the only issues relate to the account.
Morris Mastbaum died March 13th, 1936, seized of the premises in question which he devised to four nieces and nephews, namely, the complainants Josephine Mastbaum and Leo Mastbaum, and the defendants Louis L. Mastbaum and Johanna Olsan. The property consists of a lot about thirty-three
Chancellor Williamson, in Izard v. Bodine, 11 N.J. Eq. 403, said that the following propositions are well established:
“1. If one tenant in common occupies the whole estate, claiming it as his own, it is an ouster of his co-tenant, who must first establish his right at law, and then recover his mesne profits — for one tenant is bound to account to another only as his bailiff appointed by contract, express or implied.
“2. Where one tenant in common actually receives the rents, issues and profits, then he may be compelled to account for such profits actually received; but this is by statute, both in England and this state, and not by the common law.
“3. Where one tenant in common occupies the whole estate, without claim on the part of his co-tenants to be admitted into possession, he is under no obligation to account — for he had a right to such occupancy.”
The first of these propositions presents a legal remedy for a tortious act — not an accounting for rents collected, but a judgment for mesne profits, that is, the rental value, or, as it is sometimes put, the value of the use and occupation of the land. 18 Am. Jur. 120. The tort which leads to the judgment is the ejectment or ouster. “One joint tenant or tenant in common may maintain ejectment against his companion on proof of actual ouster, or of facts from which ouster
“An ouster is a wrongful dispossession or exclusion of a party from real estate. * * * It involves a question of intent. It may be committed by one tenant in common against his or her co-tenant, and may be proved by any acts which show an actual intent to exclude the co-tenant permanently from his rights.” Newell v. Woodruff, 30 Conn. 492, 497. “An entry by one man on the land of another is an ouster of the legal possession arising from the title or not, according to the intention with which it is done; if made under claim and color of right, it is an ouster; otherwise it is a mere trespass; in legal language, the intention guides the entry, and fixes its character.” Ewing v. Burnett, 11 Pet. 41, 52; 9 L.Ed. 624.
Courts of equity have for long awarded mesne profits as part of the relief in partition suits, when one tenant has been ousted by another. The definitions of ouster which I have quoted were written in ejectment actions. While our court of chancery still uses occasionally the same word to describe the situation which will warrant the recovery of mesne profits, it gives the term more flexibility than does a court of law, and often employs the word “exclusion” as the test of liability instead of ouster.
The rare case, which is illustrated by Rowden v. Murphy, 20 Atl. Rep. 379 (Stevens, A.M.), is where the tenant in possession denies the title of his co-tenants — where there is a clear ouster in the legal sense. More frequent are the instances in which the defendant in possession, while not claiming sole title, yet by his conduct deprives his co-tenant of all benefit from the premises. Thus in Izard v. Bodine, supra, and in Vass v. Hill, 21 Atl. Rep. 585 (Bird, V.C.), the tenant in possession refused to join in an advantageous lease. The ancient case of Drury v. Drury (1630), 1 Ch. Rep. 49; 21 Eng. Rep. 504, is of the same character. And in Low v. Holmes, 17 N.J. Eq. 148 (Green, C.), where the property in
Under the rule which I have been considering, the tenant in possession who excludes or prevents his co-tenants from sharing in the benefit of the property, accounts for the rental value of the property, whether he makes a profit or not. Under the second rule of Izard v. Bodine, supra, he accounts only for profits actually received, and his liability is founded not on anything in the nature of an ouster or exclusion but on the receipt of more than a just share of the profits.
In Buckelew v. Snedeker, 27 N.J. Eq. 82 (Runyon, C.), one tenant in common was in possession of a farm, which he cultivated and received the entire proceeds. He was held chargeable to his co-tenant for his share of the profits. In Davidson v. Thomson, 22 N.J. Eq. 83 (Zabriskie, C.), the property was a strip of land five by fifty feet, adjoining the rear of the defendant‘s sole property. He leased it to a tenant together with his own property. The court held that if the inclusion of the strip in the lease in fact increased the
If there be nothing that amounts to an ouster or an exclusion, and if no rents be collected or pecuniary profit made from the property, then the tenant in possession, although he occupies the whole estate, is under no obligation to account. Such is the third proposition of Chancellor Williamson. It is the basis of the decisions in Barrell v. Barrell, 25 N.J. Eq. 173 (Runyon, C.), involving a dwelling house; Rose v. Cooley, 62 Atl. Rep. 867 (Bergen, V.C.); White v. Smith, 70 N.J. Eq. 418 (Grey, V.C.), both farm cases, and Tolen v. Tolen, 96 N.J. Eq. 496 (Backes, V.C.). In the last of these, the property was a six-room house on a twenty-five-foot lot. There were five tenants in common, one of whom with her husband lived in the property. Vice-Chancellor Backes said: “Mrs. Winans was in sole but not in exclusive possession. She had the legal right as co-tenant to occupy the house. Co-tenants have a several and equal right of possession and the possession of Mrs. Winans is presumed to be in accordance with her title. This presumption is not disturbed by the established circumstance. Her co-tenants were not excluded. They made no claim for joint occupancy and she asserted no right to exclusive possession. They had the right to occupy the premises with her. If they chose not to do so, they cannot complain of her sole occupation. The law is well settled in this state that in a situation such as is here presented, a tenant in common is not obliged to account for his occupation.”
The situation has frequently arisen where one tenant in common has occupied part of the premises as a dwelling and has received a profit from the rest of the property either by farming or by letting. It is clear that he is accountable for the profit. Whether he is also accountable for the value of the use of the part in which he lives depends on whether his conduct is such as to exclude his co-tenants from enjoyment of the property. In Buckelew v. Snedeker, supra; Sailer v. Sailer, 41 N.J. Eq. 398 (Runyon, C.); Lloyd v. Turner, 70 N.J. Eq. 425 (Grey, V.C.); O‘Connell v. O‘Connell, 93 N.J. Eq. 603 (Gummere, C.J.), and Neubeck v. Neubeck, 94 N.J. Eq. 167 (Trenchard, J.), the tenant in possession, while charged with rents collected or other pecuniary profit, received from the property, was held not liable for the rental value of the dwelling house or apartment in which he lived. Vice-Chancellor Fielder charged the tenant in possession with rental value, in Maxwell v. Eckert, 109 Atl. Rep. 730, and Platt v. Platt, 93 N.J. Eq. 395, because the co-tenants had been excluded. In Rowden v. Murphy, supra, Mr. Stevens, afterward vice-chancellor, placed liability on defendant, not only because she denied her co-tenants’ title, but also on the ground that to allow her to retain half the rents collected without charging her with half the rental value of the part she inhabited would be opposed to natural equity, and would not accord with the statute. The statute,
In Izard v. Bodine, supra, the chancellor says that while a tenant in common is entitled to possession in common of the whole property with his co-tenant, he has no right to the exclusive possession of any particular portion of the property. It seems evident to me that this idea cannot be pressed too far. Co-tenants cannot actually occupy in common every part of the premises, no matter what their description. If they live together in the mansion house, still each has exclusive possession of his own bedroom. If the property be a farm, unless they are willing to go into partnership, one must till certain fields and one, other fields. Two men cannot plow the same furrow. Take a small lot and six-room house such as was the subject of Tolen v. Tolen, supra. There were five tenants in common, at least one of whom was married. It is obvious that they could not all live in the property. Yet
In the case before me, there is no evidence of the number of rooms in the apartment where defendants reside, but since the lower apartment rents for $30, I assume that the upper apartment consists of no more than a couple of bedrooms, a living room and a kitchen. If the complainants had wanted to move from New York and live in the apartment, they could not have done so unless defendants vacated it. The only way in which all the tenants could obtain an equal benefit from the apartment was by renting it to a third party. This, through the instrumentality of the executor, they tried unsuccessfully to do. If defendants had obstructed a leasing so as to obtain for themselves the sole benefit, they would be liable to account for the rental value under the cases cited above, but they did not do so. They moved into the property because it was advantageous for them to do so and because complainants did not desire to live there. Unless defendants had moved in, none of the parties would have received any benefit from the property. Tenants in common are not required to let their property stand vacant under penalty of paying rent to their co-tenants. Defendants are not liable for rental value.
They have presented an account of the rent collected and ask to be discharged because they have spent the money for repairs, insurance, taxes, c.
A tenant in common who is in sole possession of the common property, is under a duty to his co-tenants to preserve the property by making needful, ordinary repairs, and paying taxes, mortgage interest and insurance premiums. Clute v. Clute (N.Y.), 90 N.E. Rep. 288; 27 L.R.A. (N.S.) 146; Ellis v. Snyder (Kan.), 112 Pac. Rep. 594; 32 L.R.A. (N.S.) 253. This duty rests upon the receipt of benefits, actual or presumed, equal to the cost of preservation of the property. Victoria Copper Mining Co., 193 Fed. Rep. 314; 113 C.C.A. 238. A tenant in sole possession of part of the property is under a like duty in respect to the part which he occupies. Sailer v. Sailer, supra; Rowden v. Murphy, supra.
Defendants ask for their services in connection with the property $1.50 a month, or five per cent. of the rent collected. Complainants object on the authority of Switzer v. Switzer, 57 N.J. Eq. 421, 427 (Pitney, V.C.). Defendants reply that they were under no duty to donate their time and services to their co-tenants. Edsall v. Merrill, supra. I think the Switzer Case governs and disallow this trifling item.
Counsel should be able to agree on the account without the expense of a refe