BIRD, V. C.
(Syllabus by the Court.)
Bill by Charles W. Martin against Forman Martin and others for partition and an accounting.
A. V. Schenck, for complainant.
Robert Adrain, for defendant.
BIRD, V. C. The bill in this case has a double aspect. The complainant asks for partition of certain lands between himself and his brothers and sisters, and that he may be decreed to be entitled to a lien upon the said lands for the value of services which he rendered to his father in his life-time in taking care of him. It is expected that this court shall ascertain and determine the value of the services referred to. Supposing that the court has the right to determine the value and extent of certain claims against real estate in suits for the partition thereof, and to declare such claims to be liens upon one or more shares, or upon the whole, as has been frequently done, is this case within the rule? The bill alleges that the complainant and his father, who died seised of the land in question, entered into an agreement in and by which the father promised the complainant that if ho would move upon the premises where the father was then living, and take charge of the premises, and take care of and provide for him the remainder of his days, "that the complainant should be compensated for such labor, care, and trouble of the complainant and his said wife from and out of the said lands and premises upon the death of him, the said Henry Martin." He entered upon the performance. In my opinion, this court has no jurisdiction of the question here presented. The right or claim is nothing more or less than a debt or money demand, to collect which courts of law have exclusive jurisdiction. There is nothing whatever in the pleadings or in the testimony establishing a lien, or showing that such lien was contracted for or intended by the parties. The allegation that the father said to his son if he would take care of him he should be paid out of his property, does not and cannot possibly constitute a lien, and creates no equitable interest. Nor would the use of such words, or any other similar words or phrases, justify the court in declaring that a lien existed, and should be enforced. Such a contract is a simple parol agreement, which, when performed, gives the person performing a right to compensation, and imposes upon the other the obligation to make such compensation, without any preferences, or without the assignment or appropriation of any particular property for that purpose. To make such compensation, his whole property is liable when the claim is once established by judgment at law This is the result of such an agreement, whether it be declared in it that the debtor's property shall be liable or not. Suchan appendage to a promissory note or bond or any other obligation could not possibly be regarded as giving to the holder a specific lien upon the property of the maker.
The rights of the parties as here presented raise a question which is not new to the courts of this state. If the complainant has a meritorious demand, the course of procedure to establish and enforce it has for a long time been settled, and, so far as lean ascertain, never questioned. Heretofore it has never been brought into the field of controversy. One of the first cases shedding light upon this question is that of Smith v Smith, 28 N. J. Law, 208, 216. In that case, the son, living upon the farm of the father as tenant, erected buildings thereon, upon the promise of the father that he should have the farm. The father died without making the contemplated conveyance, or providing for it by will. An action at law was brought to recover compensation for the services and outlay by the son. That case is much stronger in favor of equity jurisdiction than the one I am now considering, in that he should have the land, and not merely that he should be paid out of the property. To the same purport is the subsequent case of Updike v. Ten Broeck, 32 N. J. Law, 105, 113. In this case, as in the former, labor and services were performed by the son at the request of the father, upon the promise that he should have the farm. No conveyance was effected. An action at law was brought by the son against the executors of the father, and, upon proof that the services were rendered upon the promise of the father to make such conveyance, a verdict was secured for the plaintiff, which was sustained in the supreme court. In the case of Stone v. Todd, 49 N. J. Law, 274, 280, 8 Atl. Rep. 300, it appears that services were rendered to the decedent in his life-time, who promised to make compensation by will, which he failed to do. The common-law courts were resorted to to establish and enforce the right to compensation, and the verdict of the jury in that case was sustained in the supreme court. To the same effect is the case of Robinson v. Raynor, 28 N. Y. 494; and Shakespeare v. Markham, 72 N. Y. 400, 406, which is a very instructive case. Therefore it seems to me that when the creditor will not be embarrassed by any limitations in obtaining the verdict of a jury and a judgment at law in establishing his rights, there is no foundation for equitable jurisdiction. According to the foregoing cases, the complainant could undoubtedly proceed against the administrator of his father by an action at law; or, what is equally clear, against his brothers and sisters, as heirs at law.
Notwithstanding what seems to me to be so clear, counsel for complainant insists that the case we are now dealing with should be classified with France v. France, 8 N. .1. Eq. 650; Johnson v. Hubbel, 10 N. J. Eq. 332; the case of Campbell v. Campbell, 11 N. J. Eq. 268; and Van Dyne v. Vreeland, Id. 370. Other reasons might be given for not yielding to the in-sistment of counsel, but in my judgment one will suffice, and that is that in each of these cases the agreement established showed a promise upon the part of the defendant to convey certain lauds in case the complainant should make valuable improvements thereon, or should surrender some valuable right or interest as an equivalent or consideration for the promise to convey, as in the case thirdly named, or should render services, as in the last-named case, for a long period of time, as an adopted son of the defendant; while in this case the promise was not to convey land, but to reward the complainant out of the property of the promisor. There are many other cases of the same import as those relied upon by counsel. I cite a few of them: Davison v. Davison, 13 N. J. Eq. 246: Young v. Young, 45 N. J. Eq. 27, 16 Atl. Rep. 921; Brown v. Sutton, 129 U. S. 238,9 Sup. Ct. Rep. 273; Schutt v. Society, 41 N. J. Eq. 115, 3 Atl. Rep. 398; Pflugar v. Pultz, 43 N. J. Eq. 440, 11 Atl. Rep. 123. But in each of these the promise was to convey land in consideration of the service to be rendered, and not simply a promise to make compensation for services. Counsel also insisted that, unless the complainant could have the aid of this court, he would be without relief. The cases above cited from our own law reports show the fallacy of this view. The remedy at law is abundantly adequate. It may he remarked justly that, if this court has jurisdiction in this matter, then, in every case where an heir at law has a valid claim against the ancestor, he may file his bill for partition, and have his claim stated and enforced in the same proceeding. It inevitably comes to this. Therefore, while there should be a decree for sale, because it appears that the lands cannot be divided without prejudice, so much of the bill as raises the question above discussed should be dismissed, with costs. I come to this conclusion the more readily because at the hearing I got the impression that the father really intended by the agreement that he was about to enter into with the complainant to commit the care and management of his farm to his son, and that all the proceeds from such care and management should be the son's, for which the son should care for and maintain his father. Upon a review of the testimony, I think I am satisfied by what the complainant himself said. There were 40 to 50 acres of farm land, and I think that the father thought he ought to be maintained from the proceeds thereof. Again, I think it proper to add that the son moved upon the premises with his family, enjoying the homestead as a place of residence about nine years, without giving any attention himself, worthy of notice, either to his father or to the farm which he had engaged to cultivate, but which, if cultivated in a husband-like manner, would undoubtedly have produced considerable revenue, even though much of the land was poor, and had been neglected. Instead of giving it his personal attention, he agreed with neighbors who would take parcels thereof to farm on shares, while he was constantly engaged in other matters solely on his own account. In order to avoid injusticeto the complainant by a distribution of the proceeds of sale, in case application be made for that purpose, because of the insufficiency of personal assets of the intestate, an order will be made directing the payment of the proceeds of the sale into court to await the determination of the rights of the complainant in a court of law.