GREY, V. C.
Suit by Harry C. Leamy against Charles F. Fisler. Decree, and case referred for statement of an account.
A. H. Swackhamer, for complainant.
Watkins & Avis, for defendant.
GREY, V. C. (orally). This cause has been on hearing for two days, and has been fully argued. I can, I think, presently dispose of it, without further consideration. My view of this matter differs quite radically fromthat of either of the counsel for the parties, although it is in substantial accord with the claim of counsel for complainant as to one branch of the case.
The situation, as exhibited by the pleadings and proof in this case, is as follows: Dr. Pisler, the defendant, was the owner of a vacant lot of land at Clayton, Gloucester county, in its entirety. He made an agreement with Harry C. Leamy, the complainant in this suit, whereby he agreed to convey the undivided one-half part of the lot to Leamy in consideration that the latter should join in contributing equally with Fisler to the payment of the price at which Fisler had purchased, and also to the erection of improvements upon the lot in question. The conveyance by Fisler to Leamy appears to have been without any consideration, other than this arrangement for the payment of the purchase price and the improvement of the premises, and the expectation of a resulting increase in value. The parties agreed that the money required to carry this arrangement into effect should be raised by a mortgage on the lot. Their joint bond was given, with their joint mortgage on the lot, which they owned in equal shares, to secure its payment. Consequently this was a joint contribution by them in fulfillment of their agreement that each should pay one-half part of the improvement. They hoped to keep the expenses of the improvements within the amount raised by the bond and mortgage, but it is apparent that, if there had happened to be any deficiency, each party engaged to contribute equally to the payment of the deficiency. In carrying out such an agreement, either party might rightfully have paid all of the deficiency, and, having so paid, might call upon the other to contribute the one-half part of it. If Mr. Leamy had carried out that agreement, by paying the whole of these expenses of improvement, without any request from Dr. Fisler, he could have recovered from the latter the one-half part; and if Dr. Fisler, without any further request from Mr. Leamy, had paid for the whole of them, he could have recovered from Mr. Leamy the one-half part. This right to contribution rests not upon the several rules of law ascertaining the rights of tenants in common, but upon the special agreement of the parties that they would make the improvements, and would equally contribute to pay the expenses incident thereto, in reliance upon and in consideration of which agreement Dr. Fisler conveyed the undivided one-half part of the lot to Leamy without other compensation. The improvements were made under this agreement. They were so located on the lot that an equal territorial division was made impossible. The building was intended to be occupied on one side by Fisler, and on the other by Leamy. The barn was also used one part by Fisler, the other by Leamy. In locating the main building, it was placed quite on one side of the lot, the barn on the other, and the road to the barn was laid on the opposite side from the barn, so that it was almost impossible to make a territorial division which would be equal. To make such a division so that each party would hold his own in severalty, and would at the same time receive one-half in value, would require a first-class lawyer to draw the conveyances, granting the special easements which were necessary, if it could be effected at all under such peculiar conditions. So far as any partition by deed is concerned, none was ever attempted. There was an occupation of the premises, which, with considerable indefinite intermixture, did attempt to give one side to Fisler, and the other to Leamy; but it was entirely lacking in all of the elements of certainty or continuance of exclusive possession, which must attend upon an actual partition. One of the parties used one side of the building. The other party used the other side. Both used the right of way on the one side, and the barn on the other. There never was any such dealing with the property as resulted or could have resulted in an effective actual partition. The parties continued to own each undivided half part of the whole property, and of every improvement that was put upon the premises on either side. While this condition of affairs existed, and while some of the lesser projected improvements were unfinished, the deed which led to the present suit was made by Leamy to Fisler. I mean the deed dated the 5th day of February, 1901, conveying back to Fisler, Leamy's undivided half part of the premises. This deed was entirely without consideration, and was made voluntarily by Leamy, at Fisler's invitation, to relieve the latter from anticipated embarrassments in the use of his share, by reason of the feared effect of an attachment issued out of a justice's court against Leamy. Fisler received this deed on an assurance that he would reconvey to Leamy at once that the attachment against the latter was settled. Both parties agree that this was the arrangement under which this deed was made. Its utmost effect was to make Fisler holder of Leamy's undivided half as a trustee bound to reconvey to Leamy on the cessation of the attachment suit. This deed was not fraudulently obtained. The evidence shows that there was no intent on Fisler's part, at the time he got it, wrongfully to deprive Leamy of his share. Afterwards, when controversy between them arose, an ejectment suit by Fisler was based on this deed, which was restrained by injunction issued in this cause. This step was no part of the original plan, which was proven to have been, at the time it was made, an honest effort to avoid embarrassment believed to be threatening Fisler's use of the property. The ejectment was a wrongful use of the title conveyed, but it was, as stated, a subsequent transaction, against which the complainant is now fully protected. The deed of February 5, 1901, had no effect to revoke the improving agreementoriginally made between the parties. Mr. Leamy, the complainant, was still obliged to pay for one-half the improvements, and would receive the benefit of his payments on the reconveyance to him of his half. Fisler, before this deed, might have paid for all its improvements, and have required Leamy to reimburse him for one-half part He had the same right after this deed was made. He had, as to Leamy's share, the additional right of a trustee holding title affected by his cestui que trust's contract, to carry that contract into effect, and to require the cestui que trust to reimburse him for such expenditure coincidently with a reconveyance ending the trust The proofs show that Fisler has in fact paid nearly all of the expense of improvements, above what was paid by the mortgage money, made on that side of the premises which he has occupied, and has also paid more than his share of the improvements made on Leamy's side. The complainant insists that he is entitled to a reconveyance of his undivided one-half part of the premises, with all the improvements, without paying his half of the expense incurred in putting those improvements on the property; that Dr. Fisler, who has paid out large sums for the improvements, cannot ask Leamy to contribute his one-half share of this expense as a condition of the reconveyance; and that Dr. Fisler, if he desires to collect from Leamy the latter's half, must sue him at law, and take his chances of recovery.
The proofs in this case indicate very clearly that Mr. Leamy is in considerable financial embarrassment, and that the course proposed would give him the benefit of the improvements paid for by Dr. Fisler, with but little probability that the latter would be reimbursed for his overexpenditure in the joint venture. In my view, under the terms of the original undertaking, and also in his attitude of trustee, Dr. Fisler is entitled (being the holder of the whole of the title to the property in its improved condition) to have a statement of account, and to have, as an incident of a reconveyance, repayment to him of the moneys by him overexpended beyond his half portion. The defendant Fisler insists in his answer and cross bill that he is entitled to have from Leamy a release of any equity he may have in the undivided half part, because of certain alleged agreements referred to in the answer and cross bill. All claim of any right to such release of Mr. Leamy's equity was abandoned on the argument, and the agreements referred to were introduced and urged only as justification for the payment by Dr. Fisler for improvements put upon the premises. The nature of the original agreement between these parties was such that Dr. Fisler was justified in paying for these improvements put on the joint property, irrespective of the effect of these subsequent dealings between the parties. None of these attempted agreements alter in any substantial way the attitude originally taken by these parties, who agreed with each other jointly to improve the property, in which each held an undivided half interest Considering the case from this point of view, each should be charged on an accounting with the one-half part of the expenses of all the improvements put upon the property. Each party should be credited with whatever payments were made on any of the improvements, and with any expenditures made for the benefit of the joint undertaking. If the balance be found in favor of Dr. Fisler, he should reconvey to Leamy the latter's undivided one-half part, upon receiving repayment of the expenditure which he (Fisler) may have made, above the equal one-half part. If the balance be found in favor of Mr. Leamy, Dr. Fisler should convey to him the undivided one-half part of the premises, and coincidently pay the balance due Mr. Leamy. I find that on such an accounting Mr. Leamy should be allowed the payments made by him, and by his mother in his behalf, on the mortgage upon the premises, jointly made by the parties, or on the building association stock pledged to secure the payment of the mortgaged debt Also any expenditures made by Mr. Leamy or by his mother on account of materials furnished or work done on the premises. Dr. Fisler should have the same allowances. He paid rightfully the money due Mr. Downs for work done on the premises; also the expenses incident to a transfer of the mortgage from the Mutual Loan Bank to the Clayton Building Association; also the subsequent dues on the stock pledged to secure the mortgage debt, the interest on the mortgaged debt, taxes, and like expenses, and his expenditures for the improvements since made on the joint property. Dr. Fisler occupied one side of the property. Mr. Leamy, and after him, in his right, his mother, occupied the other. There is no indication in the testimony that either should pay any rent to the other, these occupations being in accordance with the original plan.
These transactions, it seems to me, are of such a character that, with reasonable forbearance and concession, the parties might readily, by agreement state such an account. If this be not done, I will advise the reference of the matter to a master for the statement of such an account.