Millville Aerie No. 1836, Fraternal Order of Eagles v. Weatherby
| Decision Date | 24 October 1913 |
| Citation | 82 N.J.Eq. 455,88 A. 847 |
| Parties | MILLVILLE AERIE NO. 1836, FRATERNAL ORDER OF EAGLES v. WEATHERBY et al. |
| Court | New Jersey Court of Chancery |
Bill by the Millville Aerie No. 1836, Fraternal Order of Eagles, against Benjamin N. Weatherby and others. Decree awarding plaintiff only part of the relief prayed.
Joseph F. Smith, of Millville, for complainant.
Joseph H. Powell, of Bridgeton, for defendants.
The question here presented is whether, as between vendor and vendee, the burden of taxes and insurance covering the period between a contract of sale of land and the date for delivery of the deed of conveyance falls upon the vendor or vendee in the absence of any stipulation touching taxes or insurance other than the engagement of the vendor to deliver a deed for the property free from all incumbrances.
This bill is filed by the vendee for the specific performance of the contract. Vendee has made all payments specifically named in the contract, and the vendor refuses to deliver a deed until paid the amount he has expended for taxes and insurance. Both parties tender themselves as willing to complete the contract when it shall be determined on whom the burden referred to falls.
Taxes.
This question does not appear to have been adjudicated in this state; but the precise question has been frequently determined by the courts of sister states. The rule uniformly adopted is that, as between the vendor and vendee, taxes which accrue between the date of the contract of sale and the date of delivery of the deed of conveyance are chargeable to the one in physical possession of the property. In 39 Cyc. 1636, the several adjudications are collected, and the following text, which is fully supported by the cases cited, is adopted: "It is well settled that, if the purchaser after the contract is made goes into possession, and enjoys the use of the property, he is liable for the taxes accruing during his possession, notwithstanding the contract requires the vendor to convey by warranty deed at a future date." The same rule is stated in 29 Amer. & Eng. Enc. Law (2d Ed.) 716, as follows: "The vendor, remaining in possession after the making of the contract, must pay the taxes imposed on the land during the interval between the date of the contract and the date of completion; but, if the purchaser is in possession, he must pay the taxes."
In the present case the purchaser entered into possession at the time the contract of sale was executed, and has since enjoyed the rents of the property. Tax bills for taxes accruing during the period of performance were rendered to the vendor, and by him forwarded to the vendee for payment, and by the vendee returned to vendor unpaid. They were then paid by the vendor. Such payments cannot be regarded as in any sense voluntary. In Bradford v. Union Bank, 13 How. 57, 64, 14 L. Ed. 49, it is held that under such circumstances the vendor may pay the taxes to protect the title, and charge the amount so paid to the vendee.
It is urged that P. L. 1903, p. 424, § 46, rendering a tenant liable for taxes, and permitting the tenant to recover the amount paid from his landlord, is operative to modify the rule above stated. I am unable to adopt that view.
Insurance.
By the terms of the contract the property was to be conveyed subject to the lien of a certain mortgage the payment of which the purchaser was to...
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Wolf v. Home Ins. Co.
...the proceeds of an insurance policy placed on the property by the vendor. See Millville Aerie, No. 1836, Fraternal Order of Eagles v. Weatherby, 82 N.J.Eq. 455, 88 A. 847 (Ch.1913). But this court expresses no opinion as to the applicability of the theory when the suit, as here, is only bet......
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...Vendor," 34 Yale L.J. 87 (1924); J. Cribbet, Principles of the Law of Property 156-162 (2d ed. 1975). In Millville Aerie v. Weatherby, 82 N.J.Eq. 455, 457, 88 A. 847, 848 (Ch. 1913), the court wrote:As purchaser under a valid contract of purchase vendee became the equitable owner of the pro......
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...In re MacDonald's Estate, 133 Cal.App.2d 43, 283 P.2d 271 (D.Ct.App.1955). Cf. Millville Aerie, No. 1836, F.O. of E., v. Weatherby, 82 N.J.Eq. 455, 88 A. 847 (Ch.1913). The proceeds of the insurance policy are payable to James White under paragraph James White contends that the provision in......
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...27, 50, 241 A.2d 28 (Law Div.1968), aff'd o.b. 103 N.J.Super. 357, 247 A.2d 345 (App.Div.1968); Millville Aerie, F.O. of E. v. Weatherby, 82 N.J.Eq. 455, 457--458, 88 A. 847 (Ch.1913). But, Cf. In re Estate of Houghton, 147 N.J.Super. 477, 371 A.2d 735 See also, Noyes v. Estate of Cohen, 12......