Ford v. Knapp

• Decision Date: 13 April 1886
• Citation: 102 N.Y. 135,6 N.E. 283
• Parties: FORD and others v. KNAPP and others.
• Court: New York Court of Appeals Court of Appeals

102 N.Y. 135

6 N.E. 283

FORD and others

v.KNAPP and others.¹

Court of Appeals of New York.

April 13, 1886.

Appeal from judgment of general term supreme court, Third department, affirming judgment for plaintiff entered upon the trial of this action by the court without a jury.

Arthur More, for appellants.

D. H. Carver, for respondents.

FINCH, J.

The facts of this case develop a question not in all respects easy to answer. The defendants were tenants in common with one Whitaker of a mill property badly run down and out of repair. Their share was an undivided half. On a judgment against Whitaker his interest was sold, the defendants becoming purchasers; but subsequent judgment creditors redeemed and acquired the title of the debtor, and became, by relation and through their redemption, vested with the right of the debtor from the date of the sale, and thereby tenants in common with the defendants from that date, by relation, or vested with the right of such a co-tenant. During the 15 months between the sale and redemption the defendants expended a large amount upon the mill. They effected changes of two kinds, distinct in purpose and character. The grist-mill was originally both a custom and merchant mill, and provided with machinery for both uses. During the 10 years immediately preceding defendants' ownership, the latter use had been abandoned, and the machinery appropriate to it, by neglect and disuse, had become practically useless; and further passed beyond the utility of repair by new inventions and appliances which made the old antiquated and ineffective for the demands and competition of business. The machinery necessary to the use of the mill for custom work had been steadily run, but become dilapidated and inefficient. In this emergency the defendants made both repairs and improvements. The referee who inquired into the situation reported upon the basis of that discrimination. The repair of the dam, the substitution of a new water wheel, the change in the machinery necessary to make the mill do good custom work he classed as repairs; while the addition to the buildings and the introduction of new machinery and appliances for a merchant mill he classed as improvements. These repairs and improvements largely increased the market value of the property. Before they were made a generous estimate of that value did not exceed $8,000, while on the sale in partition it brought about double that amount. The proceeds of that sale are now to be divided by a court of equity in an action brought by the tenant out of the actual occupation, and the manner and proportion of that division is the question to be determined.

The execution sale, and the attitude of the defendants as purchasers under it, appears to us immaterial to the inquiry, but in some manner to have confused and complicated it. Stress is put by the general term upon the rights of the judgment creditors; and the provisions of the Code defining the powers and duty of the judgment debtor in possession during the redemption period are cited as pertinent to the inquiry. Sections 1441, 1461. They do not seem to us necessarily to affect it. Section 1441 provides for the acts which the debtor in possession may do during the redemption period, ‘without being chargeable with committing waste.’ The judgment debtor here was out of the actual possession, did no acts of any kind, and there is no question of waste. The defendants occupied under their own title, and not under the debtor's, which they never acquired. Section 1461 provides that ‘the sheriff, the purchaser, the judgment creditor, or a redeeming creditor cannot, by his agreement or other act, in any manner impair or prejudice the right of any other person to redeem.’ These plaintiffs redeemed. No act was done to prejudice their right of redemption. Nobody obstructed that right. They paid exactly what they would have paid if the defendants had never repaired the property, and not one farthing more on that account. So far from having been prejudiced in their right of redemption, that right has been granted to them in its fullest extent, and it stands conceded that they became vested with the full and entire title of Whitaker as of the date of the sale. The question here proceeds on that assumption, but asks whether equities have not arisen against them by reason of their effectual and unobstructed redemption. They thereby became co-tenants of defendants as of the date of the sale by relation, or held the derivative right of a co-tenant, and it is those rights, born of that relation, which are the sole subjects of inquiry.

We may first approach the question on principle, and reason about it from the stand-point of justice between the parties. The courts below have denied to the defendants any allowance either for repairs or improvements. Practically they held that the defendants were foolish, and the plaintiffs entitled to a dividend out of that folly, and so that the money of the former must go into the pockets of the latter. If this be true, the situation of the defendants was a hard one, though without their fault. They owned an undivided half of the property, and that certainly was no sin. The right of their co-tenant, Whitaker, had been sold, and bid in by them. They could not be expected to bring partition until they knew that it would be needed, and for 15 months they must allow their own property to remain out of repair, and growing rapidly worse; its business and custom to drift off into other hands; and suffer a severe los, without fault of suffer a severe loss, without fault of their expenditure, as represented by increased value, to the representatives of the party who was unfortunate. To a share of that increased value neither the debtor nor his creditors have any equitable right. They never earned it nor paid for it. If the redeeming creditors get the full one-half of the value of the property as that value exists unincreased by the improvements, they get every dollar to which they have a just and equitable right. The rule which takes from one co-tenant the fruit of his thrift and enterprise, and adds it to the unthrift and neglect of the other; which loads upon industry and ability the losses and burdens of idleness or ill fortune; which ties up property from improvement, and looks contented upon rot and decay,-is a rule which sometimes the rigid and inelastic jurisdiction of a court of law may adopt from...