Moore v. Thorp

• Decision Date: 05 December 1889
• Citation: 16 R.I. 655,19 A. 321
• Parties: MOORE et al. v. THORP et al.
• Court: Rhode Island Supreme Court

19 A. 321

16 R.I. 655

MOORE et al.

v. THORP et al.

Supreme Court of Rhode Island.

Dec. 5, 1889.

Bill in equity for partition.

Edwin Metcalf, Charles Bradley, and Walter F. Angell, for complainants. Louis L. Angell, William W. Douglas, and Samuel T. Douglas, for respondents.

STINESS, J. Tristam Burgess devised an estate in Providence, known as the "Hoyle Tavern Estate," to his wife for life, remainder in fee, one-half to three daughters, and the other half to those whom his wife should appoint by will. In January, 1873, Mrs. Burgess and the three daughters joined in a lease for a term of 15 years, covenanting therein to pay the lessee, at the expiration of the term, the fair value of a barn to be built on the premises by him, if it should then be standing. Mrs. Burgess died in 1879, but the lease was allowed to run along to the commencement of this suit, just before the lease expired. Partition by metes and bounds being impracticable, a sale of the premises was ordered, free of all claims by the parties, the lease having then expired, which were reserved to be considered in the distribution of the proceeds. The estate, with the barn thereon, has been sold, the proceeds have been paid into the registry of the court, and the question now presented is whether the value of the barn shall be paid by the three heirs who joined in the covenant, or proportionately by all the owners, some of whom are minors. When a part owner makes valuable improvements, courts of equity agree that compensation should be allowed by setting off the improved portions of the land to him who made the improvements, if it is practicable to do so. See Story, Eq. Jur. § 655. Freem. Co-tenancy, (2d Ed.) § 510, and note. There is, however, some difference about the rule of awarding compensation in the case of unauthorized improvements when partition is made by sale. It has generally been held that a part owner, who has enhanced the value of the common estate at his own cost, is entitled to such equitable compensation as will leave only the value of the estate, without the improvements, to be divided among the tenants in common. Hall v. Piddock, 21 N. J. Eq. 311; Kurtz v. Hibner, 55 111. 514; Moore v. Williamson 10 Rich. Eq. 323; Dean v. O'Meara, 47 111. 120; Green v. Putnam, 1 Barb. 500; Conklin v. Conklin. 3 Sandf. Ch. 64; Swan v. Swan, 8 Price, 518. See, also, Story, Eq. Jur. § 056b and note 3; Freem. Co-tenancy, supra. Mr. Freeman (section 511) refers to cases in Alabama, New York, Arkansas, and Indiana as holding a somewhat contrary doctrine. In Ormond v. Martin, 37 Ala. 606, and Jones v. Johnson, 28 Ark. 211, it is held that the claim for improvements cannot be set off against the body of the estate, but only against a demand for rents. In Scott v. Guernsey, 48 N. Y. 106, the court say that no compensation can be had for improvements made without consent, mistake, or other equitable ground, and hence, in that case, no relief was granted. But the report of the referee shows that the tenants who put the buildings upon the land had exclusively received rents therefrom largely in excess of their value and interest on the investment. The...