Bittle v. Clement

• Decision Date: 16 February 1903
• Citation: 54 A. 138
• Parties: BITTLE v. CLEMENT et al.
• Court: New Jersey Court of Chancery

54 A. 138

BITTLE

v. CLEMENT et al.

Court of Chancery of New Jersey.

Feb. 16, 1903.

Suit by B. R. Bittle against Herbert I. Clement and others. Decree for complainant.

Watkins & Avis, for complainant.

Robert S. Clymer and Robert C. Sparks, for defendant H. I. Clement.

GREY, V. C. (orally). After hearing the arguments of counsel, I am satisfied as to what the decree should be without further consideration. The circumstances of the case are as follows: The bill is filed for the partition or sale of 87 acres of land lying in Gloucester county, purchased from Harper Davis and wife by the complainant, Benjamin R. Bittle, and his brother, Daniel Bittle, by deed dated March 1, 1893, made by Davis and wife to Benjamin R. and Daniel Bittle. In payment of the purchase-money price Benjamin paid $1,250 and Daniel $550, and they jointly gave a mortgage for the residue, amounting to $2,000. On August 31, 1900, Daniel died testate, devising all his lands to Benjamin, and appointing him sole executor of his will, which was duly proved before the surrogate of Gloucester county. On the 28th of June, 1901, Herbert I. Clement recovered a Judgment against Daniel's executor, and, because Daniel's estate was insufficient to pay his debts, the executor obtained an order to sell Daniel's real estate, and under this order advertised and sold Daniel's interest in the 87 acres above named. At the time of the sale, and before putting up the property at auction, notice was given that Daniel had paid but $550 of the purchase money, and that Benjamin R. had paid $1,250 of it, and that all Daniel's interest in the equity of the farm was in the proportion which $550 bore to $1,250. The defendant Herbert I. Clement, who had the judgment against Daniel's estate, bought in the farm with notice of this fact. The complainant, Benjamin R. Bittle, sets up the abovementioned facts in the bill of complaint, and prays that a partition of the premises may be made between him and the defendant Clement according to their respective rights therein—that is, that he, the complainant, may have 25/36 and the defendant Clement 11/36 parts thereof; or, if it be found impracticable to divide the property, then that it may be sold, and the proceeds of sale divided between the parties according to their several rights therein. There is but a single matter of dispute raised by the answer of the defendant Clement He insists that the complainant, Benjamin R. Bittle, is not entitled to an interest in the property in the proportion of "25/36 parts to 11/36 parts held by the defendant, but, on the contrary, asserts that the complainant's interest amounts only to the one equal half part, and that he, the defendant Clement, acquired by his purchase and is entitled to the other equal half part. The defendant joins in the prayer for partition or sale on the basis of the shares alleged in his answer.

The testimony offered proves that the complainant paid on account of the purchase money $1,250, that his brother, Daniel Bittle, paid on account of the purchase money but $550, and that the balance of the purchase money was secured by a mortgage given by both on the premises. At the sale at which Clement purchased Benjamin announced that at the time of the purchase of the farm the purchase money, which was $3,800, was secured in part by bond and mortgage given by Daniel and Benjamin for $2,000, and that of the balance Daniel had paid $550 and Benjamin $1,250, and that Daniel's interest in the equity in the farm was in the proportion in which the sum paid by Daniel, $550, stood to $1,250, paid by Benjamin, and that Benjamin claimed to hold an interest in the equity in proportion to his payment of the purchase money. This notice was given at the sale, and the defendant Clement does not deny that he received the notice, and made his purchase subject to the information thus given. It appears by uncontradicted testimony that some years before the transaction here involved Daniel and Benjamin, who were brothers, owned their property in common. During this period there was no definition of the proportionate ownership of ...