Ashby v. Ashby

• Decision Date: 11 May 1900
• Citation: 59 N.J.E. 536,46 A. 528
• Parties: ASHBY et al. v. ASHBY.
• Court: New Jersey Court of Chancery

46 A. 528

59 N.J.E. 536

ASHBY et al.

v. ASHBY.

Court of Chancery of New Jersey.

May 11, 1900.

(Syllabus by the Court.)

Bill by Timothy W. Ashby and others against Amos K. Ashby. Decree for complainants.

The four complainants are the owners, as tenants in common in fee, each of the undivided one-fifth part of a steam gristmill property in Burlington, N. J. The defendant is the owner of the other undivided fifth part. This property was owned by Edward Ashby, the father of the Ashby parties, in his lifetime, and was by him, by his will dated the 19th day of June, 1886, and proven June 5, 1888, devised to his widow for life, with a privilege to his son Amos K. Ashby, the defendant, to continue in the occupancy of the mill, etc., "he paying all taxes, and all needed repairs, at his own proper cost," and a further yearly rental of $425 in quarterly payments to the widow during her life; subject, also, to the same conditions and provisions as were in the will imposed upon another son, Timothy, regarding his occupancy of what the will describes as the "Mansfield Mill." One of these conditions was that he should "keep the said property in good repair at his own proper cost." The testator gave the further privilege to his son Amos, the defendant, to become the purchaser of the Burlington Mill, at the price of $10,000, during the period of three months after the decease of the widow. After that period the executors were given a power to sell the properties and to convey them in fee simple. The testator gave several bequests, among others one to the defendant of $1,000 debt which he owed the testator. Subject to the above disposition, the testator devised the residue of his estate to three of his sons and two of his daughters in fee, and, in case any died without issue during the lifetime of the widow, the share of such decedent to vest in the survivors. One daughter, Mrs. Pharcs, has conveyed her share to the complainant Robert Ivins. The defendant is one of the residuary devisees to the extent of one-fifth. The widow survived the testator. None of the children died during the lifetime of the widow. The defendant, Amos K. Ashby, continued in the occupancy of the Burlington Mill under the terms prescribed in the will, and has remained in possession ever since. On the death of the widow, in 1897, the defendaut did not exercise his option to purchase the mill, and the executors, on the expiration of the three months after the death of the widow, advertised the property for sale.

The defendant, Amos K. Ashby, had made certain repairs, etc., to the mill building, for which he insisted he ought to be repaid before any sale should be made under the power, and he filed his bill in this court in the case of Ashby v. Ashby, 46 Atl. 522, seeking to restrain the executor's sale of the mill until his right to compensation should be established, and his expenditures in repairing the mill building should be decreed to be paid him out of the proceeds of the sale. This matter has been disposed of in an opinion in that cause filed in May, 1900. On March 8, 1898, when the executors were about to make public sale of the mill, pursuant to advertisement, the defendant appeared, and caused a notice to be read, declaring that he claimed to be the owner of three roller mills, the purifier, smut mills, separators, two buhr mills, a flour packer, the bolting machines, all the belting and other fixtures in the mill, and that he claimed the right to remove them from the mill when he surrendered the premises to any purchaser. The effect of this notification was to defeat the executor's sale, as no one would bid in view of the defendant's claim to own in his own right substantially all the machinery necessary to the carrying on of the milling business. The com-plainants, who are entitled to four-fifths of the proceeds of the executor's sale, thereupon filed their bill in this cause against the defendant, setting up the foregoing facts, and insisting that the machinery and equipment claimed by the defendant are part of the mill and real estate, and necessary and indispensable to the use and running of the mill, and that they were paid for by the widow and devisees in remainder; that their removal by the defendant, who is in possession, would be waste to the premises, and a destruction of the mill for its sole use, and a prevention of the execution of the power of sale by the executors. They pray that the defendant may be restrained from removing the above named or any other fixtures from the mill, and from committing any waste thereon, and for further relief, etc. The defendant answered, asserting that he had placed the claimed articles in the mill as tenant. He denied that they were fixtures, and as such a part of the realty which could not be removed. He denied that they were paid for by the other persons interested in the premises, and averred that they were all put in the mill by himself as tenant, for his own use and benefit. He, insisted that he had a right to give notice of his claim, and that in doing so he had not unlawfully interfered with the executor's sale; that beyond giving the notice he had made no threats to remove any fixtures or to do any waste; that his sole object in giving the notice was to preserve his rights, and not lose them by allowing an innocent party to buy the mill without notice of his claim. A preliminary injunction was allowed, and the case has now come for final hearing.

Clarence T. Atkinson and Mark R. Sooy, for complainants. D. J. Fancoast and Chas. E. Hendrickson, for defendant.

GREY, V. C. (after stating the facts).The complainants are entitled, as the owners by devise of four undivided fifth parts of the mill, to receive that proportion of the proceeds of the sale of the mill which the executors are about to make under the power given to them in the will of Edward Ashby, the father of the Ashby family. The defendant is the devisee of the other undivided fifth, but originally came into possession of the mill in his father's lifetime under a lease from him. He continued in possession under the privilege given him in the will, and thereby assumed the obligations there imposed, that he would pay taxes, a named rent, and for all needed repairs, and keep the property in good repair, at his own proper cost. His possession under that tenure began in 1888, and continued up to 1897, the time of the termination of the life estate by the death of the widow. He declined to purchase the mill under the option reserved for him in the will, and, when the executors afterwards proceeded to sell, he gave notice that he claimed to own all the above-named machinery. The sole object of the complainants in this suit is to restrain the defendant from removing this machinery. The defendant admits that he claims to own the articles named, and that he gave public notice at the executor's proposed auction sale of this claim, and insists that he had a right to give such a notice of ownership, and was, indeed, bound to do so, in order to save the risk of losing his property in case a purchaser should in good faith buy the mill in ignorance of his rights. He further contends that there is no occasion for an injunction to restrain his removal of the things claimed, because he declares he has made no declaration of a purpose to remove them.

The whole burden of the defense has been directed to show that the defendant owns the articles in dispute, and has the right to remove them. It is difficult to see what value such an ownership can have unless it is to be protected by the maintenance of possession of the things owned. The defendant now has them in actual holding in the mill. It is proposed to sell the premises of which they are the essential equipment, and it can hardly be believed that the defendant, if he goes out of possession of the building, would leave what he strenuously insists is his property behind him. Furthermore, the evidence of the defendant's intention to remove is quite convincing. The proofs, including his own testimony on cross-examination, indicate not only such a purpose, but also a willingness on the part of the defendant so to use his claim of ownership, and the proclamation of his purpose to remove, that the disclosure, when made public to the attending bidders at the proposed executor's sale, would prevent any one but the defendant from bidding. So far as any issue is made on the point of the defendant's purpose to remove the equipment of the mill, it is clearly shown that he has claimed, and now asserts, a right to remove, and that it is his intention to do so, whenever he deems it to be best for his own interests.

The other point of dispute to which the greater part of the proof and argument is directed is the assertion by the defendant that he is the owner of the several articles in question, and that he bas a right to remove them from the mill. It should be noted that the defendant asks no relief as tenant in common against the complainants by way of cross bill. He sets up no claim of a rigbt to have the complainants, as co-tenants of the mill, reimburse him, in whole or in part, for his outlay in purchasing the new machinery. He stands for his defense solely upon his contention that he is the absolute owner in severalty of the equipment of the mill, and that he has a right to remove it. This position of the defendant calls for an examination of the manner in which he came into possession of the mill. The evidence, with but little variance, shows that, after a preliminary tenancy of the mill under his father in his lifetime, the defendant continued in the occupancy under the terms prescribed by his father's will above mentioned, among which was an undertaking that the defendant should keep the property in good repair, and pay for all needed repairs at his own expense. Just prior to the father's death, the mill had been refitted with new machinery, changing it into the more modern roller method of...