Moore v. Simonson , 27 Or. 117 ( 1895 )

Opinion by

Mr. Justice Wolverton.

1. It may be remarked while passing that the defendant held not only the life estate to the premises under the will of Jonas Whitney at the time she purchased the outstanding mission title, but she occupied the position of a trustee in respect to said premises, the owners of the remainder under said will being the cestuis que trustent. She was then executrix of the estate, and had served as such scarcely a year, and was also in possession collecting rents. Ewing, J., in Bowling’s Heirs v. Dobyn’s Administrators, 5 Dana, 446, says: “It is certainly true, as a general proposition, that if a trustee, mortgagee, or tenant for life, being in possession, purchases in an outstanding title or encumbrance, he cannot apply it to his own benefit; but it in general inures to the benefit of him under whom he entered, or is considered as held in trust for the eestui que trust, mortgagor, or him in reversion or remainder. ” Or, as stated by Bibb, C. J., in Morgan’s Heirs v. Boone’s Heirs, 4 T. B. Mon. 297 (16 Am. Dec. 158): “It is a general principle that if a trustee, mortgagee, tenant for life, or purchaser, gets an advantage by being in possession, or behind the back of the party interested, and purchases in an outstanding title or encumbrance, he shall not use it to his own benefit, and the annoyance of him under whose title he entered, but shall be considered as holding it in trust. ” See also Holridge v. Gillespie, 2 Johns. Ch. 33; Whitney v. Salter, 36 Minn. 103 (1 Am. St. Rep. 656, 30 N. W. 755); Daviess v. Myers, 13 B. Mon. 511; 1 Washburn on Real Property, 96. There is but little doubt that the defendant purchased this title with her own funds. They came out of the rents and profits which were rightly hers under the will, or else were derived from the personal property which she was also entitled to after the payment of debts and the expenses of settling the estate. However this might be, a court of equity may treat the claim as having been purchased for the benefit of those in remainder. In the case of Bowling’s Heirs v. Dobyn’s Administrators, 5 Dana, 446, which was a stronger-case for the life tenant than the one at bar, the court say: “And though, after a recovery in ejectment, and before possession is taken, it might be competent for the mortgagee, trustee, or tenant for life to abandon their claims, and take shelter under the adversary claim by purchase, without waiting to be ousted by writ, yet they will, in all such cases, be held to a rigid scrutiny and strict accountability. Slight testimony tending to show that they purchased with the means of the mortgagor, cestui que trust, or him in reversion or remainder, or with the combined means of the latter and the tenant for life, will render the claim so acquired subject to all the rights and limitations over of the original claim. And though a judgment had been recovered in ejectment, and he purchases with his own funds, while he is still in possession, a court of chancery might, perhaps, treat the claim as purchased for their benefit, requiring them to account to him for all reasonable disbursements in its acquisition.” In that case the life tenant was executrix of the estate, as in this, and the court concluded that her purchase was in trust for the remainder-men. Here we have a life tenant and an executrix of the estate in full possession purchasing the outstanding title, which she now declares was negotiated as an individual investment, intending thereby to become the absolute owner thereof unencumbered with any trust obligations. The testimony is so strong, however, that she never claimed more than a life estate in the premises until a comparatively recent date, admitting all the while that Mrs. Sarah A. Moore and her children were entitled to the remainder after her estate had terminated, that we are convinced that she had a more equitable purpose in view when she made the purchase, and that she in reality intended the title to inure to the benefit of her child and grandchildren, as well as that of herself. The property was worth at the time of purchase from nine to ten thousand dollars. She admits it to have been worth six thousand, and yet she purchased the title under which she claims the fee for four hundred and twenty dollars, so that the subsisting equities are strongly against her present contention. Hence we think her purchase of the mission title ought now to be regarded as having been made, as she originally intended it, for the benefit of the devisees under the will of her former husband Jonas Whitney, and she ought now to be regarded as holding the legal title to said premises in trust for the beneficiaries under said will.^*

2. The defendant claims, however, that if she is held to be a trustee she ought to be allowed a fair proportion of the amount expended by her in the purchase of the outstanding title and in making permanent improvements, upon the ground that she made such expenditures from her own funds, believing that she was the owner of the absolute title. The rule is established by Hatcher V. Briggs, 6 Or. 30, that where a purchaser of real property, for full value, at an authorized partition sale, in good faith, and without notice of any infirmity of title, believing it to be good, makes permanent improvements which add to the value of the estate, he is entitled to recover to the extent of such added value, as well as for the amount expended in purchasing his supposed title, where such improvements and purchase price inure to the benefit of the true owners. But the defendant occupies the position of a self-constituted trustee by purchase of an outstanding title which inured to the benefit of others as well as of herself. She undoubtedly believed at the time that she was taking a title without infirmities, but she took it as trustee, and whatever expenditures she made were made in the belief that she was a life tenant only; so she is not in a position to invoke the doctrine applicable to a purchaser in good faith and for value making improvements which add to the value of the premises. Whenever it is once established that a trusteeship exists, then the obligations and duties of a trustee ensue. He will be held to a strict accountability as to the management of the trust estate, and cannot encumber it except in accordance with the powers given by the terms of his trust, by authority of the court, or with the consent of the cestui que trust; so that it is difficult to see how the defendant, being a trustee, can claim for the value of improvements on the ground of having purchased an outstanding title without notice of infirmities, when the very purchase itself inured to the benefit of other parties, and the very parties against whom she now claims reimbursement. The defendant is a trustee of the legal jtitle merely by operation of law. Her duties and obligations toward the owners of the estate in remainder are those of a life tenant. As such she is required to keep down interest upon encumbrances, and to keep up repairs, so that those in remainder shall come into their estate after the expiration of the life estate in substantially the same condition as it came to her hands. As a general proposition, if a tenant for life makes improvements upon the premises, he cannot claim compensation therefor from the reversioner or remainder-man, though he is under no obligation to do more than keep the premises in repair, and generally he cannot make repairs or permanent improvements at the expense of the inheritance : 1 Washburn on Real Property, 129; 6 Am. and Eng. Ency. of Law, 882. Paxton, J., in Datesman’s Appeal, 127 Pa. St. 359, (17 Atl. 1086, 1100,) says: “It is settled law that the life tenant. cannot of his own motion improve the remainder-men out of their estate”; or, as was said in Van Bibber v. Williamson, 37 Fed. 759, ‘ ‘Improvements made by the life tenant, or those holding or claiming by, through, or under him prior to his death, could not upon well settled principles be charged against the remainder-men, who were minors, and in no position to interfere or complain. ” See also Elam v. Parkhill, 60 Texas, 582, and Miller v. Shields, 55 Ind. 71. The cost of the improvement in raising the stone buildings was about three thousand dollars. This expenditure was entirely, as we have seen, from the funds of the defendant, but it was by her own volition, with knowledge at the time oí the exact relationship which she sustained to the owners of the remainder; so that this expenditure cannot be allowed at the expense of the inheritance upon any ground that we are now enabled to discover.^*

3. The expenditure for the improvement of the street should, however, be allowed the defendant. This improvement constituted a betterment, and inured to the benefit of the inheritance, as well as to the life estate, and the cost thereof should be treated as an encumbrance on the whole estate: Plympton v. Boston Dispensary, 106 Mass. 547; Cairns v. Chabert, 3 Edw. Ch. 312. In view of the fact that the defendant bought in the outstanding mission title in good faith, believing it to be necessary for the protection of the whole estate, the amount expended therefor should also be treated as an encumbrance. The amount expended for improving the street was one hundred dollars, which, being added to the consideration for the mission title, makes five hundred and twenty dollars. The defendant, by paying this sum out of her own funds, became a creditor of the estate to that extent, deducting the interest she would have to pay as life tenant during her life. It is the duty of the defendant to keep down the interest upon this sum during her life, and of the remainder-men to pay the principal at her death; 4 Kent’s Commentaries, 74-75; Rayburn v. Wallace, 93 Mo. 326 (3 S. W. 482). The rule is well settled by which may be ascertained the relative proportion of the encumbrance to be borne respectively by the life tenant and the owners of the remainder if paid at once or at any given time before the death of the life tenant. The life tenant must pay the present worth of an annuity equal to the annual interest running during the number of years which constitute the expectancy of life, the balance after subtracting the sum thus ascertained from the encumbrance should be borne by those in remainder: 8 Pomeroy’s Equity, § 1223, and note 2 at page 213.

There is evidence in the case tending to show that the Missionary Society has agreed to refund to the defendant the four hundred and twenty dollars paid for the mission title, and that a percentage of that amount has been tentered and is now ready to be paid her. When she collects this fund it ought to go toward the discharge of the encumbrance. Plaintiffs seek to have the four hundred dollars which defendant received for the iron doors offset against any claim she may have for expenditures, but this is in the nature of waste, and no claim is made there for under the pleadings, nor was there any evidence offered during the trial showing that she was guilty of committing waste in this respect. She may or may not have committed waste .in selling the iron doors, but the evidence is insufficient to determine that question, none apparently having been offered with that end in view. Hence this claim cannot be allowed. The decree will be that the defendant convey to the other devisees of Jonas Whitney the premises in the proportion they would bake under the will, reserving to herself the rents, issues, and profits thereof during her natural life, and that the five hundred and twenty dollars be declared an encumbrance thereon, to be discharged by the life-tenant and other devisees, the proportion for each to pay to be ascertained under the rule herein determined. The decree of the court below will therefore be modified in accordance with this opinion. Modified.

* With the case of Allen, v. De Groodt, 14 Am. St. Rep. 626, (98 Mo. 159,) is an extended note on the subject of the Rights and Remedies of Reversioners and Remainder-men.— Reporter.

* A valuable collection of authorities on the kindred question of the liabUity of cotenants for improvements and repairs is printed with the West Virginia case of Ward v. Ward, 29 L. R. A. 449. — Reporter.