31 Md. 425 | Md. | 1869
delivered the opinion of the Court.
Counsel for the several parties to these appeals, whilst differing upon other points, agree that a decree for a sale must be passed, and the two principal questions necessary now to be decided are:
1st. What is to be sold, and what provisions in this respect shall the decree contain ?
2d. Upon what basis or general principles shall the accounts be stated.
First. To that part of the decree appealed from which designates the property to be sold, objection is taken on one side, because what is called Mrs. Barnum’s lot is excluded, and on the other because certain rooms or apartments in the basement story of the hotel are included.
Mrs. Barnum acquired title in fee to her lot in 1838 ; and in 1849, after the death of her husband, the testator, she sold and conveyed it in fee to Andrew McLaughlin, for $5000. The position that title to this lot has passed, upon the doctrine of election, is wholly untenable. The
, But the ground upon which the claim for its sale is chiefly rested is, that at the time of David Barnum’s death this lot constituted part of the hotel premises, and was used in connection therewith; that by improvements subsequently made by McLaüghlin, it is for the most part covered by structures, making up the Hotel buildings; water-closets and baths being in the buildings erected thereon, the drainage from which, and from other like parts of the premises, is carried off' by one common sewer; that, thus constituting a part of the establishment, supporting apartments devoted to purposes indispensable to the use of the Hotel as such, which were erected and improved by the purchaser himself, he'must be presumed to have bought for the common benefit of all parties jointly
Counsel for the defendants, claiming under McLaughlin, have earnestly contended that the title to the rooms and offices in the basement story mentioned in .the decree, and ordered to be sold, was not authoritatively determined by this Court when the case was before it on the appeal reported in 26 Md., 119. The argument is that the decree passed on that appeal is its own, and the only expositor of what this Court, then definitely decided, that the opinion was merely the reasoning of the Judge who delivered it, and not, on this point at all events, the bindirig and conclusive judgment of the Court. But if the decree is alone'to be looked at, to ascertain what was decided, then it may well be asked what construction has been given to the will on any point ? That decree simply reverses the decree below, and remands the case for further proceedings. Confined to this, it is impossible to discover on what grounds the reversal proceeded, whether the complainants were entitled to relief under the first clause, as in one aspect is claimed in the original bill, or against it as being void, and under the second clause. The decree is silent upon the subject, but counsel concede it has been adjudged that the first clause of the will is void, and that the second became operative. This concession necessarily comes from the judgment of the Court contained in its opinion. That opinion settles the rights of the complainants, so far as title to the property depends upon the construction of the will, and in all its definitive conclusions upon that subject, must be regarded as inseparable from the decree. Because title was thus established, the Court determined the complainants were entitled to relief, leaving the extent of that relief to be settled upon» further proof, and in the further progress of the cause. That decision, upon every point to which it
Secondly. — More difficulty is felt in settling the general ¡principles upon which the accounts are to be stated. On
1st. There is no satisfactory foundation' for the claim to an account of the profits realized by McLaughlin and the other occupants from the business of hotel keeping, which they carried on in the premises. In cases of express trusts, or where a party voluntarily assumes the management of a trust estate, and converts the property, and uses the proceeds, or the trust funds, consisting of money in hand, or collected from the rents of the trust property if realty, for his own purposes in trade or speculation, or invests them in lands or otherwise, so as to derive profit therefrom, the right of the cestui que trust to follow the funds in the new form of investment, and to an account of the actual profits thence resulting, or if this is withheld, to charge the trustee -with interest and compound interest on the money so misapplied, may arise. But what application have authorities sustaining these doctrines to the present case ? There is here no express trust, nor did these occupants voluntarily assume the collection and application of the rents of a trust estate, nor did they, by their occupation and use of these premises for this particular business, place themselves in such relation to the complainants as to make applicable between
"Where there is occupation of a farm or land used only for agricultural purposes, and the income and profits are of necessity the produce of the soil, the owner may have an account of the proceeds of the crops or other products actually sold or raised thereon, deducting the expense of cultivation. There are necessarily rents and profits in such cases, but even there, it is more usual to arrive at the same result, by charging the occupier, as tenant, with a fair annual money-rent. But the proprietor of city lots, with improvements thereon, can only derive therefrom as owner, a fair occupation-rent for the purposes for which the premises are adapted. This constitutes the rents and profits in the legal sense of the terms of such property, and is all the owner can justly claim in this shape from the occupier. The accounting for rents and profits must therefore be upon the basis of a reasonable annual occupation-rent of the premises decreed to be sold. The complainants were infants at the death of their father, and so remained at the time the original bill was filed. No laches can be imputed to them for not asserting their claim at an earlier date, and they are therefore, entitled
2d. Shall any allowance be made to the defendants claiming under McLaughlin for meliorations and permanent improvements, and if so, for what improvements ? These were questions thoroughly discussed at bar, and we have attentively considered the arguments presented on both sides. The record shows with sufficient certainty that McLaughlin purchased out the interests of the widow and all the children of David Barnum, including the father of these complainants, supposing he was thereby acquiring an absolute interest: that he paid the full price of an absolute estate, and had no knowledge in fact of any defect in his title or of any adverse claim: that under the impression it was an absolute and not a mere life estate, and after obtaining the advice of eminent counsel that his title was good, he expended large sums of money in making permanent improvements upon the property. He had knowledge of the will, and the law imputed to him knowledge also of its true construction, in so far as to prevent his relying upon estoppel or the plea of bond fide purchaser without notice to defeat a recovery by the complainants, but the fact that a party cannot successfully maintain such a defence in bar of a recovery upon title, will not deprive him of any equity lie may have for an allowance for improvements ; and especially not in a case where relief is sought against him as a defendant in a Court of Equity, upon an equitable title, accompanied by a demand upon him for .an account of rents and profits. In such cases a Court of Equity practically enforces the rule of the civil law, founded in natural justice, nemo debet locupletari aliena* jactura,” as well as the cherished maxim of equity jurisprudence itself, that “ he who seeks equity must do equity.”
Such are the rights of the parties, and so they are settled by the decree before us. The question then remains, how are the rents and profits to be charged, and how is the amount of allowance for the improvements to be ascertained? Instead of charging rents and profits of the property as enhanced in value by the improvements, and allowing the cost of the latter, the rule of the decree is to charge the former as of the property in the condition in which it was at the period of David Barnum’s death, and to ascertain the allowance for the improvements by the extent to which they have augmented the vendible value
We are unable to perceive how, by the operation of these rules, any possible wrong can be done to the complainants. They will not be thereby improved out of their estate. They will recover their proper share of the rents and profits of all the property to which they derived title under the will of their grandfather, as of the condition in which he left it, calculated upon the basis of a reasonable yearly rent from the time their title accrued, to the time of sale under the decree, and will also receive their share of the proceeds of sale of the property as it . now stands enhanced in value by all the improvements put upon it, and out of the fund thus accruing to them, will be required to pay their proportionate share of the’ specified improvements made before they filed their bill, ascertained and measured by the increased value such improvements shall have conferred upon the property at the time of "sale. They will recover with rents and profits, property which McLaughlin purchased from their father at its full value in fee, and be improved out of nothing to which in conscience they have any claim, but simply prevented, to a reasonable extent, from being enriched at the expense of an innocent bond fide possessor who expended his money in permanent improvements, under the belief honestly entertained that he was absolute owner.
The petition of John R. Barnum asking that the complainants and all the other defendants be required to establish their legitimacy by adducing proof of the mar
It will be seen from what has been said that in all its substantial provisions the decree below is correct, and that we mainly concur in the views so well expressed in the opinion of the Court accompanying that decree. The error, however, in ordering the sale subject to the operation of the deeds of trust creating the stock debt, requires a reversal and the passage of a new decree upon the remanding of the cause. The new decree thus to be passed should also contain the modifications indicated in this opinion upon the other specified points.
This disposes of all the questions determined by the decree, and for the reasons already given we have refrained from considering others presented in argument whether relating to the accounts or to the extent of the distributive shares to which any of the parties may be entitled. None of these questions were decided by the decree appealed from, but are thereby expressly reserved for future adjudication, and we express no opinion upon them, not only for this reason, but because in the further progress of the case, most, if not all of them, may be adjusted or become unimportant.
Decree reversed and cause remanded.
delivered the opinion of the Court.
The petition of the appellees in the second above entitled case, for a modification of the decree of this Court in said case must be dismissed.
In the opinion accompanying that decree, we said, that if the precise amount of the stock debt now remaining unextinguished were ascertained or agreed upon, there would be no objection to decreeing the property to be sold subject thereto ; but that the record furnished no proof of what that amount was.
We have again examined the record and can discover no reason for modifying our opinion upon that point. The statements contained in the answer on this subject were put in issue by the replication, and were not supported by proof; the answer itself is not evidence. The agreement of counsel contained in the record, which we had not overlooked, simply admits that deeds of trust were made creating the City Hotel stock mentioned in David Barnum’s will, one of them for the sum of $27,900, and the other for $34,900; but when made or what part of the debt so created now remains unextinguished is not stated or admitted. Under the agreement “ that copies of the deeds referred to might be filed at any time as evidence in the cause,” the deeds were produced, and by the consent of counsel, were used as evidence at the hearing of the
In this state of the proof, it seems to us clear that we were fully justified in saying the record contained no proof of the amount of the debt now outstanding and unextinguished, and constituting the actual incumbrance on the property.
The statement of that amount set forth by this petition and the accompanying exhibits, is not admitted by the appellants in their answer thereto, and we have no authority to take proof on the subject, and adjudicate the question in the first instance in this Court. Nothing remains, therefore, but to dismiss the petition.
At the same time, we repeat what we have before said, that if the parties can agree upon this amount, it will be entirely proper, that the sale should be made subject to the incumbrance, and the opinion heretofore pronounced does not forbid such an agreement now to be made. But lest the Court below might regard its language as too stringent or mandatory on this point, we now state that the opinion is to be construed, or if necessary is hereby modified so as to permit the decree to be passed by that Court, directing the sale to be made subject to the amount of the said debt now remaining unextinguished; provided the amount of the same be ascertained and agreed to, by a written agreement of the parties or their respective counsel to be filed in the case before the passage of such decree.
If no such agreement can be entered into, the decree must direct the sale to be made free from that incumbrance, as indicated in the former opinion of this Court. In the examination of the question presented by the peti