Supreme Court, October, 1919. [Vol. 109. faith, nor with the duty which the connection of the parties, as claimants of a common subject, created, that one of them should be able, without the consent of the other, to buy in an outstanding title, and appropriate the whole subject to himself and thus undermine and oust his companion. It would be repugnant to a sense of refined and accurate justice. It would be immoral, because it would be against the reciprocal obligation to do nothing to the prejudice of each other's equal claim, which the relationship of the parties, as joint devisees, created. Community of interest produces a community of duty, and there is no real difference, on the ground of policy and justice, whether one co-tenant buys up an outstanding incumbrance, or an adverse title, to disseise and expel his co-tenant. It cannot be tolerated, when applied to a common subject, in which the parties had equal concern, and which created a mutual obligation, to deal candidly and benevolently with each other, and to cause no harm to their joint interest." In Knolls v. Barnhart, 71 N. Y. 474, it was held that where a widow paid a mortgage, took an assignment to herself, subsequently foreclosed and bid in the premises, the interests of the other heirs were not thereby cut off. The court said that it is a general rule that one tenant in common cannot purchase in an outstanding claim or title to the exclusion of his co-tenant. In Peck v. Peck, 110 N. Y. 64, it appeared that one of the tenants in common purchased a mortgage on the premises for less than its face and sought to charge his co-tenants with contribution for the full amount. It did not appear that at the time he purchased there was any intention by the mortgagee to foreclose nor any pressing necessity to take care of the mortgage. It was held that he could only require his co-tenants to Misc.] Supreme Court, October, 1919. contribute their share of the amount he had paid, citing Van Horne v. Fonda, supra, p. 73. In Carpenter v. Carpenter, 131 N. Y. 101, it appeared that executors, although having sufficient moneys in their hands to pay interest on the mortgages, defaulted and induced the holders to foreclose. Different portions of the property were bid in by certain of the children and the interest of the plaintiffs, who were co-tenants, was thereby divested. It was held that the titles acquired in the foreclosure were subject to a trust in plaintiff's favor. In Allen v. Arkenburgh, 2 App. Div. 452; affd., 158 N. Y. 697, it appeared that certain of the parties owned property in New Jersey as tenants in common which was about to be sold in partition at a loss; that one of the tenants promised that if the others would not bid he would buy it in, pay the charges and divide the surplus equally among the tenants in common. He bought it in, took title, and thereafter died, and the property was sold under a power of sale contained in his will. It was held, among other things, that the presumption is ordinarily that a tenant in common who purchases an outstanding interest does so for the benefit of all proprietors. In Collins v. Collins, 13 N. Y. Supp. 28; affd., 131 N. Y. 648, it was held that where a joint owner of property purchased at a foreclosure sale under a mortgage which had been assigned to a student in his office, the title acquired by him was subject to a trust in favor of his co-tenant. In Streeter v. Shultz, 45 Hun, 406; affd., 127 N. Y. 652, it appeared that plaintiff conveyed to Charles Shultz one-half of certain premises subject to a mortgage of $7,500. Thereafter the mortgage was foreclosed, the premises being sold to one Christie who bid, in behalf of and assigned his bid to Shultz, who Supreme Court, October, 1919. [Vol. 109. took a deed of the premises. There was no agreement that Shultz was to buy for the joint benefit of himself and the plaintiff and the price paid was the fair value. It also appeared that plaintiff thereafter sold all his personal property to Shultz and that Shultz had obtained a grant of land under water from the state and built docks and buildings at a very large expense. Plaintiff appears to have acquiesced in the purchase by Shultz at the foreclosure and never made any objection thereto until many years later he commenced an action to redeem his undivided onehalf from the foreclosure. The court held first that the fact that Shultz was a tenant in common with plaintiff with no duties toward him other than such as necessarily arose from the co-tenancy did not prevent him from purchasing the premises for his own benefit, and that the subsequent acts of the plaintiff and his long acquiescence in the purchase by Shultz would defeat his claim even if originally good. In Dolan v. Cummings, 116 App. Div. 787; affd., 193 N. Y. 638, it was held that a relation of confidence and trust exists between brothers and sisters who are tenants in common of lands, and if one tenant conceals the fact that he has had a specific offer for the real estate and induces his co-tenants to sell their interests to himself at a lower value, they are entitled to rescind the sale on discovering the offer. In that case the question of the relation of tenants in common was discussed by Gaynor, J., in a concurring opinion as follows: "The question whether the mere relation of tenancy in common creates a fiduciary relation among the tenants in respect of the common property seems to be unsettled. In the cases of Van Horne v. Fonda (5 Johns. Ch. 388), Dickinson v. Codwise (1 Sandf. Ch. 214) and Wells v. Chapman (4 id. 333), there were Misc.] Supreme Court, October, 1919. other elements besides the mere relation. The opinion of the lower court in the case of Graham v. Luddington (19 Hun, 251, n.) was in the affirmative, while the opinion of the three judges on appeal in the case of Streeter v. Shultz (45 id. 406) was in the negative. In the case of Peck v. Peck (110 N. Y. 64) there were also other elements. In the case of Abbey v. Wheeler (85 Hun, 226) it was held that a suit for an accounting would not lie by a tenant in common against his co-tenant, on the ground that there was no fiduciary relation between tenants in common, and therefore nothing to give equity jurisdiction of such a suit. And so our cases in this State run. There is a diversity of opinion elsewhere. Mr. Bispham, however, in his scientific and altogether able treatise on the principles of equity enumerates the relation of tenants in common among those out of which arises ipso facto a fiduciary relation (7th ed., § 93); and the case of Duff v. Wilson (72 Penn. St. 442) warrants his text. "The present case not only brings the question up squarely, but shows that it ought to be decided in the affirmative." In the above cases, although differing in their facts from the case at bar, one clear and dominant principle is laid down which in my opinion is equally applicable to the situation here. One tenant in common cannot purchase an outstanding claim or title to the exclusion of his co-tenant and such a purchase is presumed to be for the benefit of all. I do not think the case of Streeter v. Shultz is at war with this principle. In that case the plaintiff was of full age and acquiesced in the purchase openly made for full valuation by his co-tenant with full knowledge and without raising any objection until many years later after defendant had expended large sums of money in improvements on the property. Surrogate's Court, Bronx County, October, 1919. [Vol. 109. Edelman's purchase therefore is presumed to have been not for himself alone, but for plaintiff his co-tenant as well, and unless that presumption has been rebutted by the evidence it is conclusive of this case. In my opinion this presumption has not been overcome, and I therefore find that the real estate in question is impressed with a trust in favor of plaintiff to the extent of her half interest as a tenant in common, and that she is entitled to a conveyance of such interest by the defendant Phillips and to an accounting of the rents and profits, subject, however, to contribution by her of her share of all lawful expenditures made by the defendants upon the property. Judgment accordingly. Matter of Proving the Last Will and Testament of HANNAH MARX, Deceased. (Surrogate's Court, Bronx County, October, 1919.) Courts jurisdiction-wills Surrogates' trial - Code Civ. After a jury trial in a probate proceeding the court directed the entry of a decree admitting the will to probate valid to pass personal property and ordered that supplemental citations issue to certain of the next of kin who, though they had not been named in the petition for probate, were present at the trial. Held, that not until they had been duly served with a supplemental citation did the court acquire jurisdiction of them and that notwithstanding the decree directed to be entered, they had a right to file objections to the probate of the will. Under section 2550 of the Code of Civil Procedure, a decree should be entered establishing the will as against the parties of whom the court had jurisdiction at the time of the trial, in accordance with the adjudication then made, and that the objections filed by the persons cited since the conclusion of the last trial should be heard and determined in due course. |