41 N.J. Eq. 398 | New York Court of Chancery | 1886
This is a suit for partition of land in Woodbury, held by equitable title. In 1807 the property was conveyed by a tripartite deed to Charles Potts, in fee, in trust to permit Sarah Harker (wife of Jonathan ITarker), notwithstanding her coverture, to- have and enjoy for life, the rents, issues and profits thereof, or for such other uses, intents and purposes as she should think fit; and upon the further trust to convoy, assure, order and dispose of the property to her children by her before-men
The report upon the subject of the interests of the parties in the premises to be partitioned is correct. The allowance made for taking care of the property appears to be reasonable. It is ten per cent, upon all the rents collected by Mr. Sailer. The report is erroneous in charging him with the value of the use and occupation. There is nothing in this case to take it out of the ordinary rule upon this head, which is, that in order to render one cotenant liable to another for rent, or for use and occupation, there must be something more than a mere occupancy of the estate by the former and a forbearance to occupy by the latter. 1 Washb. on R. P. 420; Izard v. Bodine, 3 Stock. 403; Davidson v. Thompson, 7 C. E. Gr. 83; Barrell v. Barrell, 10 C. E. Gr. 173; Henderson v. Eason, 17 Ad. & El. (N. S.) 701, 718; McMahon v. Burchell, 2 Phillips 126; Sargent v. Parsons, 12 Mass. 149. But it is urged that Mr. Sailer is not within the rule because in his testimony he says that he has occupied exclusively, and because it appears that he occupied, not as tenant in common, but as owner of the whole property in severalty. He says, indeed, that he had exclusive occupation, but by the word “ exclusive ” he evidently did not mean that he occupied to the exclusion of any of his cotenants. Hone of them ever made any claim or demand upon him either to let the property to any one or to permit them to occupy part of the premises. What he meant was that he alone had had possession and that he had had full possession. The attention of the court is called upon this point by complainant’s counsel to the fact that it appears, by the account taken by the master, that Mr. Sailer received $300 rent from William B. Sailer, one of his cotenants, for the single dwelling-house, from September 16th, 1882, to October 16th, 1884. Under what circumstances the latter so occupied as tenant docs not appear; but it does appear that the letting was long after the date of the filing of the bill, which was March 24th, 1877. The bill makes no allegation that Mr. Sailer ex-
The account must be restated by striking out the charges for use and occupation and all allowances for disbursements by Mr. Sailer for or in respect to taxes upon or ordinary repairs to the part of the property occupied by him. As to the permanent improvements thereon, they appear, as do all of the other permanent improvements put upon the premises by him, to have been proper and judicious, and to have been carefully and economically made. No objection is made by the complainant or any of the defendants to the allowances made by.the master to him for the permanent improvements.
The exception in reference to the charge for use and occupation is allowed; the others are disallowed. No costs of the exceptions will be awarded to either side.