Flack v. Gosnell

• Decision Date: 07 June 1892
• Citation: 76 Md. 88,24 A. 414
• Parties: FLACK et al. v. GOSNELL.
• Court: Maryland Court of Appeals

24 A. 414

76 Md. 88

FLACK et al.

v. GOSNELL.

Court Of Appeals Of Maryland.

June 7, 1892.

Appeal from circuit court of Baltimore city.

Action by David H. Flack and others against Frank Gosnell, trustee of James W. Flack, for a partition of land, or a sale thereof, and distribution of the proceeds, and for an account of the collection and receipts of rent and profits by James W. Flack, and that rents in excess of his share collected and retained by him be made a lien upon his undivided interest claimed by Gosnell. Judgment for defendant on his demurrer. Plaintiffs appeal. Affirmed.

Argued before Alvey, C. J., and Miller, Robinson, Bryan, McSherry, Fowler, and Irving, JJ.

W. E. Hoffman, for appellants.

Thos. M. Lanahan and Frank Gosnell, for appellee.

IRVING, J. The facts of this case are as follows: Thomas J. Flack died in 1874, seised and possessed of the reversions in fee of several lots of ground in the city of Baltimore, out of which rents issued amounting in the aggregate to $300.50 annually. His heirs at law consisted of two sons, a daughter, and some grandchildren, the children of a deceased child. One of his sons, James W. Flack, becoming involved, made an assignment for the benefit of his creditors to Frank Gosnell (the appellee) of all his estate, which included his undivided interest in his father's estate. The bill is for partition of this real estate among the heirs at law of the intestate; and, among other things, charges that James W. Flack had collected all the rents from his real estate, and had not accounted for them to his cotenants; and, among other things, prays that in such partition they may "have the interest and estate of said James W. Flack in said parcels of ground and premises, as well against him as also said Frank Gosnell, [trustee under said deed of trust,] held and made liable for and applied towards the satisfaction of the rents collected, received, and appropriated as aforesaid." In other words, the bill prays that James W. Flack's interest in the undivided real estate shall he impounded for the payment to the several heirs of their interests in the rents of the estate collected by him. To so much of the bill as seeks thus to subject the undivided interest of James W. Flack in this property, or its proceeds after sale thereof, to the payment of any rents collected and retained by James W. Flack in excess of his share thereof, the appellee demurred. The court sustained the demurrer, and the only question on this appeal is whether that ruling of the circuit court was right. As curtly stated by the appellee in his brief, the question is, has one tenant in common a lien against his cotenant's interest in the property for rents in excess of his share collected and retained by such cotenant before partition of the land?

The counsel for appellants has exhibited most commendable industry and research in the collection of authorities supposed to sustain his contention. Some of his citations from other states do seem to sustain his view, but they do not commend themselves to us as resting on solid ground of reason and equity. They are certainly not in harmony with the law as it prevails in England, and as it has been understood, and adopted in this state. The several text books cited by the appellant, viz., Freem. Coten.; Moaks' Underhill, Torts; and Story's Equity,—according to our understanding of them, do not support the view for which the appellants' counsel contends; while Mr. Jones in his work on Liens, (volume 2, p. 96, § 1155) says expressly that such lien as that claimed by the bill and in argument does not exist, The only reason he says for enforcing it...