Jones v. Jones

4 Gill 87

• Court: Court of Appeals of Maryland
• Decided: June 15, 1846
• Status: Published

Opinion

Dorsey, J.,

delivered the opinion of this court.

The ground of complaint most strenuously relied on by the plaintiff below, against the orders from which he has appealed, is, that, in virtue of a direction from the chancellor to the auditor, the sum of $7275.65 has been assumed in account E, as the balance due, on the 30th June, in the year 1837, from the late Charles C. Jones to Clement Smith, and which was a preferred lien on the Clean Drinking farm, and the personal property thereon, sold many years before by the latter to (lie former. On the day and year aforesaid, the said property was conveyed, with all his interest therein, by the said Clement Smith to John C. Jones, one of the defendants below. By the decree of this court, heretofore passed in (his cause, that interest, in equitable contemplation, was but a lien upon the premises for the balance due by Charles C. Jones to Clement Smith, at the date of the above mentioned conveyance. That in 1825, at the time of the compromise, as it is called, there was due, from the former to the latter, a balance of $12,000, has long since ceased to be a matter of controversy. What part of that balance remained due on the thirtieth of June 1837, is the question now to be examined; and upon tile solution thereof depends the justice of the complaints of the plaintiff below, against what he appears to regard as an arbitrary assumption by the chancellor, of the sum of $7275.65, as the balance due at that time. Account A, as stated by the auditor, which shews a less sum than $7275.65, as the balance due on the 30th of June 1837, is based upon exhibit CS, which gives large credits, independently of the bonds of Diggcs and De Butts, that are wholly unsustained by any other proof or exhibit in the cause , and which, if rejected, would leave a much larger balance due to Clement Smith on the 30th of June 1837, than that assumed by the chancellor, as the basis or starting point for the auditor’s statements. The chancellor, it is presumed, regarding, as does this court, exhibit CS, (which consists of mere pencil marks upon an isolated piece of paper, unexplained by any testimony, to shew the times or occasion which gave birth to it.,) as testimony of too loose and questionable a character, to be made the basis on which the rights of the parties litigant in this cause should be adjusted, directed the auditor to assume, as the balance due from C. C. Jones to Clement Smith, the sum of $7275.65, at. the date of the deed from Clement Smith to John C. Jones. This balance was not, as appears to he supposed, arbitrarily assumed, without regard to the testimony in the cause, and in disregard of the interests of the plaintiff below. The assumption was made for his benefit, as, after the rejection of exhibit CS, a detailed statement of debits and credits would have exhibited a much larger balance. It was made in reference to the testimony in the cause, the chancellor regarding the purchase money expressed in the deed from Cle merit Smith to John C. Jones, as an admission by them of the then balance due to Smith from C. C. Jones. After the rejection of exhibit CS, of which we approve, with the chancellor’s assumption of such balance, the plaintiff below ought to have been satisfied. But not so the defendant. He, being entitled to the entire balance due to Smith, had a right to complain that the chancellor had overldoked the testimony of John Marhury and (Clement Cor;, which proved, as far as concerned admissions by Clement Smith and John G. Jones, (and by such admissions only could it be reduced to the amount assumed by the chancellor,) that the balance due from C. Q. Jones to C. Smith, was $7375.65, instead of $7275.65. For this reason, therefore, if all others were wanting, the appeal of the defendant, John C. Jones, must to that extent be sustained.

But this is not the only ground upon which it can be sustained. The testimony given by the nine witnesses, testifying as to the amount of rent with which J. C. Jones should be charged, as the occupant of the Clean Drinking estate, being of such a nature as to require to be averaged, the auditor made a statement for that purpose, in which, instead of obtaining the aggregate amount, by adding together the estimate of each and every witness who testified thereto, (without reference to their agreement or disagreements in the amounts of their estimates,) and dividing the sum thus obtained by the entire number of such witnesses, by which means, the averaged amount of rent would have been fairly and justly ascertained; three of the witnesses having deposed, that $150 per annum would be a fair rent; two that $300 would be; and the remaining four witnesses having each deposed to a different amount, he added one $150 for the three concurring witnesses, and one sum of $300 for the two concurring witnesses, to the several amounts of the four dissentient witnesses, and to reach the true average result, divided the sum thus obtained by six, thereby, in effect, rejecting altogether the testimony of three of the witnesses, and making the averaged rent $316.67; whereas, in this case, if the aggregate sum had contained, as it should have done, the estimate of each and every witness, and been divided by nine, (the whole number of witnesses,) the annual average rent with which John C. Jones should have been charged, would have been but $277.78. By such a rule of averaging testimony as this, if a plaintiff has fifty witnesses, all of whose estimates agree in amount, and the defendant has one witness making a different estimate, forty-nine of the plaintiff’s witnesses are virtually rejected; and the decision of his case is identically the same that it would have been, had he sworn in his behalf but one of his witnesses. If any thing further could be necessary to shew the injustice and unreasonableness of such a rule, its application to figures would, perhaps, be a clearer demonstration. Should the estimates of fifty concurring witnesses for the plaintiff be one dollar, and the estimate of a defendant’s only witness should be $1000, the average value, under this rule, would be $500.50. But if the plaintiff’s witnesses should all differ in their estimates, that of each succeeding witness being one cent higher than that of the next preceding, (so that the estimate of the first witness being one dollar, that of the last would be $1.49,) the average value by this rule would be a fraction less than $19.87; and yet, apart from all corrupt concert between the witnesses, which the rule of average necessarily excludes, could it, in reason, justice, or common sense, be for one moment supposed, that the plaintiff’s interests were less strongly fortified by proof in the first hypothesis, than in the second. The order of the chancellor of the 29th of April 1845, resting on such a rule of average, and being appealed from by John C. Jones, must be reversed.

The plaintiff below complains, that no credit has been given him for the proceeds of sale of a great number of the negroes of C. C. Jones, sold since the sale of Clem.ent Smith to John C. Jones. But from a careful examination of all the testimony properly before us, it appears that the auditor, in account E, has given every credit for the sale of negroes since the 30th of June 1837, to which the plaintiff below was entitled. And there is no-foundation for the complaint, that four negroes were sold to William J. Stone, and credit given but for the price of one of them. Stone himself conclusively proves, that for George and Polly, no credit ought to be given. That he considered them of no value, but an incumbrance upon his bargain. That he offered the same price which he paid for the four, for the other two, and John C. Jones refused to sell him the two young negroes, unless he would take, with them, the two old negroes, George and Polly, their father and mo ther. And there is abundant proof in the record, that Sam, one of the young negroes sold to Stone, was not held by J. O. Jones, under the conveyance from Clement Smith, but that he was the bona fide owner of him, as a purchaser at a sheriff’s sale. So far from allowing any credit to the plaintiff below, on account of the sale of George and Polly, the auditor, who will be directed to state an account, according to the views of this court upon the record, as now before it, will be instructed, upon Raméelo’s testimony, to credit John C. Jones with sixty dollars for the maintenance of those negroes. And it is a matter of great doubt, whether the credit ought not to be for sixty dollars a year, from the 30th of June 1837, until the sale to Slone, in 1842.

Several other objections to the auditor’s account E, dependent on the facts in the case, have been urged by the plaintiff below, but believing that a due examination of the proof in the cause shews them to be untenable, we forbear to discuss them,

On the part of the plaintiff below, it has been insisted, that the decree of this court on the former appeal, has been misunderstood by the chancellor, in supposing that it authorised allowances to John C. Jones for any improvements, other than necessary repairs. And to prove that such was the meaning of this court, numerous authorities have been referred to, as shewing that such were the only allowances that could legitimately have been made. For this purpose, the case most strongly relied upon was that of Moore vs. Gable, 1 Johns. C. R., 385, where a mortgagee in possession, on a bill by a mortgagor to redeem, was not allowed for clearing wild lands. Chancellor Kent there remarks, that “to make tire allowance would be compelling the owner to have his lands cleared, and to pay for clearing them, whether he consented to it or not. The precedent would be liable to abuse, and would be increasing difficulties in the way of redemption. ’’ “Lord Hardwicke, (in 3 Atk., 517,) there said, that a mortgagee in possession, was not obliged to lay out money any further than to keep the estate in necessary repair.” And chancellor Kent, proceeding with his opinion, said, “I shall accordingly direct a master to compute the principal and interest due on the mortgage down to the first of January last, and that, in taking the account, he charge the defendant with the net amount of rents and profits received, except such as shall appear to have exclusively arisen from his own expenditures in improvements; and that he allow for the expense of necessary reparations, if any, but not in clearing part of the land, and that he report with all convenient speed." The condition of the parties in the case before ns is, as we shall hereafter have occasion to shew, different from that in the case in 1 Johns. C. R., 385, and therefore under the governance of different principles. But it may not be amiss to observe, that it would be difficult to reconcile, with the broad and liberal principles of a court of equity, the instruction of the learned chancellor, (if intended as of general application,) to charge the defendant with the whole amount of rents and profits, except such as shall appear “to have exclusively arisen from his own expenditures in improvements.” If therefore, for example, a mortgagee, (in possession,) of a mill worth ten dollars per annum, by its reconstruction or enlargement, not repair, render it of the annual value of 01000, he is to be charged with the full amount of such enhanced rent, and be allowed nothing for expenditures in the improvement. But if the mortgage be of the mere site of a mill, of no value in its then condition, and the mortgagee build a mill, the annual rent whereof is 01000, an allowance is to be made him out of the rents received for his expenditures in the improvements. If the allowance in the latter case be correct, it is not easily discovered why a proportionate allowance ought not to be made in the former case.

Many other cases were referred to, shewing that allowances for expenditures in repairs ought to be made, but not for expenditures in new improvements. And authorities were referred to, to prove that allowances should be made in both cases. But these were cases of defendants knowingly and avowedly holding as mortgagees or as tenants, after notice to quit; or as trespassers or wrong doers.

In 1 Pow. Mortg., 313, note (o), the learned annotator, after referring to the contradictory decisions as to allowances to tenants for life, or mortgagees in possession, for improvements made by them, states, that “the old rule would now, perhaps, be considered obsolete, and the tenant for life, or mortgagee, allowed in full for all reasonable and permanent improvements, with interest from the time he made them.” And in 2 Pow. Mortg., 956, note, (e), he says, “it may be proper in this place to add, that the mortgagee, in accounting, will be allowed all costs of suit, taxes, renewal fines, sums expended in necessary repairs and lasting improvements.” The same doctrine has been sanctioned by chancellor Bland. See Hagthrop vs. Hook's adm'rs, 1 Gill if Johns., 373. But conceding in this case, (what is by no means designed to be generally admitted,) that it is otherwise, and that, as a general rule, mortgagees and tenants for life, rightfully in possession, can only be allowed for expenditures made in necessary repairs, and are entitled to no allowance for those made in lasting improvements; yet this case has in it a discriminating feature, which, in the eye of a court of equity, should entitle the defendant, J. C. Jones, to the controverted allowances, designed to be secured to him by the former decree of this court. In 2 Pow. Mortg., 956, note (e), it is stated, that “where a mortgagee, thinking himself absolutely entitled, had expended considerable sums in repairs and lasting improvements, he was allowed such expenditures.” And, in page 957 of the same book, it is stated, “it seems that money laid out by a mortgagee in repairs and beneficial improvements, forms a lien on the land; but in ordinary cases, money laid out in improving premises, does not create a lien; yet, if a party, conceiving himself to be owner, makes lasting improvements, a court of equity, it is assumed, would not take the estate from him, without compelling the plaintiff to make some allowance for the sum expended in improving the premises.”

In 1 Story's Rep., 494, Story, J., says: “In cases where the true owner of an estate, after a recovery thereof at law, from a bona fide possessor, for a valuable consideration, without notice, seeks an account in equity, as plaintiff, it is the constant habit of courts of equity to allow such possessor, (as defendant,) to deduct therefrom the full amount of all meliorations and improvements, which he has beneficially made upon the estate; and thus recoup them from the rents and profits. So if the true owner of an estate holds only an equitable title thereto, and seeks the aid of a court of equity to enforce that title, the court will administer that aid, only upon the terms, of making compensation to such bona fide possessor, for the amount of his melioration and improvements of the estate, beneficial to the true owner. In each of these cases, the court acts upon an old and established maxim in its jurisprudence, that “ he who seeks equity, must do equity.” To the benefit of these equitable principles, the defendant, John C. Jones, has shewn himself entitled. He purchased in ignorance of any defect of title, though apprized of the claim of the plaintiff below, and took possession, and made the improvements, under the opinion of counsel that the title was clear. All his acts, and the circumstances of the case, demonstrate, that at the time of his purchase, and when the improvements were made, he believed his title to be a good one.

But suppose it were conceded, that where the title is clear at law, and where a claimant, under such a title, goes into equity for an account of rents and profits; or where the right to the interposition of a court of equity, in asserting the title sought to be established, is absolute and unqualified, and subject to no discretion in the court, to grant or withhold it, an allowance can only be made to a defendant, possessor, for necessary repairs, and none for new buildings or improvements: yet this case stands unaffected by such a concession. Here, the plaintiff below presents no such absolute, unqualified right to the interposition of a court of chancery. His appeals for relief are-addressed to the sound discretion of the court; and the relief sought, may be modified or made conditional, or be wholly denied, as may be consistent, with the dictates of equity and conscience. The plaintiff below, seeks to enforce the specific execution of a contract; which is, always, an appeal to the conscience and sound discretion of the court. Prom such an application, if unconscientiously or unreasonably made, a court of chancery will, either, altogether withhold its relief, or grant it upon such terms as to render it consistent with equity and justice. That such terms would secure to John C Jones an allowance for his lasting improvements on the Clean Drinking estate, cannot be regarded as a subject for doubt. In such cases, the appropriate enquiry might be, were the improvements made bona fide, and without a knowledge of the defect of title ? If answered in the affirmative, in the language of Justice Story, they “have permanently enhanced the value of the lands, to the extent of such enhanced value, the plaintiff is bound in conscience to make compensation, ex aequo et bono.

The plaintiff below, claims a reversal of the order of the chancellor of the 29th of April 1845, because he has, thereby, ratified the auditor’s account E, in which the lasting improvements of John C. Jones are charged at their original cost, and not at their actual value at the time of the audit. And to sustain his objection, he has cited Hagthrop et al., vs. Hook's adm'rs, 1 Gill & John., 373, wherein chancellor Bland uses the following language: “but the estimate of the value of such lasting improvements, is to be taken as they are at the time of accounting or passing the final decree. For such allowances are made upon the ground, that the improvements do, in fact, pass into the hands of the plaintiff as a new acquisition. And they can only be a new acquisition to him, to the extent of their value at the time he recovers or obtains possession of them, and therefore their value, at the time, is to be allowed, and nothing more.” This is true or not true, according to circumstances. If property only is recovered, then is the rule, as laid down by the chancellor, equitable and true. But if rents and profits are charged, it is true or false, equitable or inequitable, according to the mode in which such charges are made. If the rents and profits are charged agreeably to the improved value, then is the doctrine unsound and inequitable; if upon the value, independently of the improvements, then is the rule announced by the chancellor equitable and sound.

It is true, in this case the rents and profits have been charged according to the value of the land, before the lasting improvements were made; but to state the account upon the proofs in the cause in any other way than it has been, with any certainty of doing more justice to the parties, was not in the power of the auditor. It was in proof that the enhanced annual value of the estate was in a great measure the result of expenditures, made in the amelioration of the soil, and by the purchase of quantities of manure, gypsum, and clover, and timothy seed, Ac., an allowance for which John C. Jones would have been entitled, had he been charged with the enhanced rents resulting from his expenditures for such amelioration. The auditor, therefore, believing that substantial justice would be thereby effected, very properly considered the enhancement of the rents, as a fair offset to the expenditures for amelioration, and allowed nothing for either.

In adopting the proof of the first cost of the improvements, as their value at the time of the audit, the auditor could not have done otherwise: there being an absence of proof before him, of the times at xvhich the improvements were made; of the amount of their depreciation in value; or that they had suffered any such depreciation; or of what their then value was.

On the appeal taken by John C. Jones, we think injustice has been done him, in rejecting all allowance for his expenditures in ditching and grubbing the meadow land. .From the nature of the services rendered, and the proof in the cause, they were necessary, valuable and lasting improvements, and entitle him, for them, to a fair and equivalent allowance.

This case, on the appeal by J. C. Jones, being about to be reversed, the auditor of the court of chancery will be requested to state an account pursuant to the views, and under the direction of this court; upon the report whereof a decree will be passed, disposing of the present appeals, and settling the matters in controversy under them.

DECREE REVERSED WITH COSTS.