Shipman v. Shipman

• Decision Date: 07 January 1904
• Citation: 65 N.J.E. 556,56 A. 694
• Parties: SHIPMAN et al. v. SHIPMAN et al.
• Court: New Jersey Court of Chancery

56 A. 694

65 N.J.E. 556

SHIPMAN et al.

v. SHIPMAN et al.

Court of Chancery of New Jersey.

Jan. 7, 1904.

Bill for partition by Henry Shlpman and others against William C. Shipman and others. Decree for complainants.

The bill is filed by three of the four children of Jesse B. Shipman to partition a farm in Warren county owned at the time of his death by Jesse B. Shipman, and devised by him to Ellen, his wife, for life, and after her death to his four children, Henry, George S., William C, and Mary Fox. The widow, Ellen Shipman, died January 4, 1899. William C. Shipman, the defendant, filed an answer and an answer by way of cross-bill. He denies that either Henry Shipman or Mary Fox have any equitable interest in the property sought to be partitioned. He admits that the legal title is in the four children, but claims that by a verbal agreement entered into by the children of Jesse B. Shipman in the spring of 1892 Henry and Mary were to deed over their interests in the farm (the property sought to be partitioned) upon the death of their mother, the life tenant. He asserts that in pursuance of such an agreement bonds were executed by himself and by George to Henry Shipman and Mary Fox in consideration of this agreement to convey. Apart from this defense to the suit for partition, the defendant also claims that in 1886 a barn upon this farm was destroyed by fire, and that he and his brother George erected a new barn upon the property at a cost of about $4,000, having received as insurance money for the destruction of the old barn $1,100. He asks that, if partition be made, the amount of money expended for this purpose by him shall be allowed to him. The defendant also asks that the bill be dismissed, because this property is needed to pay the debts of the estate of Jesse B. Shipman in Pennsylvania. The defendant also asks that, in case no agreement for the settlement of the entire estate is found to exist, then that the services of the defendant on account of the estate may be declared to be a lien upon this property. He also prays that, if no equitable title passed from Henry Shipman and Mary Fox to himself and George by force of the alleged parol agreement, then that a bond given by the defendant to Mary Fox in consideration of her interest in the farm may be delivered up to him, and that the amount of a similar bond paid to Henry on account of his interest in the farm may be decreed to be repaid by Henry out of his share of the proceeds of the sale of this property. The answer of the complainants to the cross-bill denies that any contract was made to sell the interest of Henry Shipman and Mary Fox in the farm to William and George Shipman and their other material allegations in the cross-bill are denied.

Irwin W. Schultz, for complainants.

W. H. Walters, for defendants.

REED, V. C. (after stating the facts). The first point raised by the defendant William G. Shipman in opposition of the right of the complainants to a partition is unsupported by the testimony. If it be admitted that an agreement was entered into between the four devisees that the individual interests of Henry Shipman and Mary Fox should be conveyed to William C. and George Shipman, such agreement admittedly rests entirely in parol. The only ground, therefore, upon which it could be enforced or recognized by a court of equity would be upon proof that there had been a part performance of the agreement. There is no evidence of performance save the giving of the two bonds and the payment of one of them, which bonds it is alleged were given for the interest of the obligees in the farm. In respect to the occupation of the farm by a tenant who was thereon at the time of the death of the life tenant and thereafter, nothing appears to show that he was the tenant of George and William, after the death of the widow, rather than the tenant of the four devisees of the remainder. No new lease was made by William and George. William dealt with the property after as he had before the death of the widow. His failure to account to the other devisees for the product of the farm after the death of the widow has no significance, inasmuch as he failed to account to George, who he admits retained an interest in the farm. Besides, both George and Henry received from time to time small articles, the product of the farm, after the death of the widow. The claim of part performance therefore must rest entirely upon the execution of the bond and the payment of one of them. But a mere payment of part of the consideration of the verbal sale of real property is not part performance of the verbal agreement. Climan v. Cook, 1 Sch. L. E. F. 22; 6 Eng. R. Cas. 721; Cole v. Potts, 10 N. J. Eq. 67; Campbell v. Campbell, 11 N. J. Eq. 268; Nbert v. Baghurst, 47 N. J. Eq. 201-206, 20 Atl. 252; Lippincott v. Bridgewater, 55 N. J. Eq. 208, 210, 36 Atl. 672. There is therefore nothing to show that the title, both legal and equitable, is not in the four parties to the suit, as alleged in the bill. There must, therefore, be a partition.

The defendant, however, insists that he has an equity in the property, which should be protected in these proceedings. This equity, he insists, arose from his expenditure of money in rebuilding the barn which was destroyed by fire during the existence of the term of the life tenant. If it be proved that the defendant did expend his own money in excess of what he received from the insurance company, and in excess of what the other tenants expended either" in money or labor, it follows that he should be repaid in these proceedings. The equitable rule is entirely settled that when a tenant in common has in good faith put improvements upon the common property —when the improvements were made honestly, for the purpose of improving the property, and not for the purpose of embarrassing his co-tenants or incumbering their estates, or hindering partition—he is entitled in some way to be compensated in an equitable partition. Hall v. Piddock, 21 N. J. Eq. 311; Atha v. Jewell, 33 N. J. Eq. 417. Nor does it matter that the improvements were so placed by a tenant in common in remainder during the existence of a preceding life estate. Brookfield v. Williams, 2 N. J. Eq. 341. The testimony, however, fails to support the defendants' claim. It is entirely clear that, instead of the new barn costing $3,900 or $4,000, it did not cost one-half that sum. Indeed, it is not shown that it cost William C. Shipman any more, if as much, than the amount of insurance money that came into his hands. The entire amount of insurance money he received was $1,650. The carpenter's contract for building the barn from the foundation up was $1,280, and the mason work did not cost more than $150. The stones were mostly got from the ruins of the old barn. The paint and the painting George says he paid for, but what it cost does not appear. There were also some repairs made in 1893, the cost of which amounted to about $121. The carting incident to this reparation was done by the horses of George and William's livery stable, and no charge was made for them. So it does not appear that the moneys expended by William C. were in excess of the amount received by him.

The next insistence of the defendants is that Henry shall be decreed to repay the sum of $1,250 and interest, being the amount of the bond paid by William C. to Henry; and that Mary Fox may be decreed to deliver to William a similar bond, received by her from William. In suits for specific performance which have failed because the contract was not in writing it has been decreed that money paid by the complainant upon the contract should be returned. The cross-bill in this suit is, in one of its features, in substance a bill for specific performance. Whether the payments mentioned were given for an interest in the farm now sought to be divided is a question which stirs up transactions between the parties running for...