198 Mass. 137 | Mass. | 1908
The effect of the plaintiffs’ success in avoiding the deeds given by Jane Sunter is that they become entitled to two undivided thirds of the premises, while the defendant remains the owner of the other undivided third part. It is the same as if they had recovered a judgment in a writ of entry for possession of that part of the estate, although their rights are to be enforced by ordering the defendant to convey to them instead of issuing an execution against him. Sunter v. Sunter, 190 Mass. 449. And, as was stated in that decision, the defendant is entitled to allowance for two thirds of the value of the improvement made by the erection of a house upon the premises, in accordance with the provisions of R. L. c. 179, § 17. The value of this improvement has been found by the master to be $3,500; and the plaintiffs are therefore chargeable with two thirds of this sum, or $2,333.33; and the master has correctly so ruled.
The master was also correct in his ruling that only the rents and profits of the land should be considered in determining the set-off of the plaintiffs. That is the express language of R. L. c. 179, §§ 14, 15. But there should not be allowed against this sum the total amount expended by Jane Sunter during her life for taxes upon the whole estate, but only for the taxes upon the land. This again is the direct language of § 14 just cited; and evidently the plaintiffs, taking their share of the house at its value when they brought their suit and having no benefit of its rents and profits during their mother’s occupancy, are not to be charged with taxes, repairs or insurance during that period upon the house from which they had and are allowed no benefit. The language of the court in the former decision in this case in 190 Mass. 449, which seems to have been misunderstood by the master, was not intended to state a different rule from this. Apparently, if the account had been stated in this way, there would have been a balance in favor of the plaintiffs out of the rents and profits of the land during the time that the title was
The account for the time after the defendant entered into occupation should be taken in the same manner up to the date of the plaintiffs’ bringing their suit. As they are to be treated as having then purchased the house at its then fair value, after that time the defendant should be charged with the total amount of the rents and profits, less his proper expenditures for taxes, repairs and insurance upon two thirds of the whole estate, as was stated in the former decision of this case. Sunter v. Sunter, 190 Mass. 449, 458. We find no other errors in the master’s report.
Accordingly the decree of the Superior Court must be reversed, and a decree entered sustaining the plaintiffs’ second and third exceptions in part, and the defendant’s third and fourth exceptions, and his seventh exception in part, and overruling all the other exceptions of both parties, and recommitting the case to the master to state the account in accordance with this opinion. We may add that the plaintiffs should not be required absolutely to pay the amount with which they may be charged, as was done, probably by inadvertence, in the decree appealed from. It is in their option whether they will or will not pay that amount and take their share of the property.
Ordered accordingly.
