Bradshaw v. Clark , 31 N.J. Eq. 39 ( 1879 )

The Chancellor.

The bill is filed by a tenant in common of land, against her co-tenant, for an account of rents &c. received by him from the property, and payment by him to her of her share thereof. The defendant, by his answer, admits the receipt of the rents, and gives an account of them, but alleges that the complainant’s share thereof was received and appropriated by him, under and according to an agreement between him and her by which it was to be applied to the payment of the interest of the price of a farm bought by him, at her request (she is his sister),'to provide for her and her children a place to live upon, and also for the taxes on the farm; which interest and taxes, he says, she agreed to pay as rent for the property.

The complainant insists that she is entitled to a decree for her share of the amount of the rents as admitted by the answer, on the ground that there is no proof to sustain those allegations of the answer which are not responsive to the bill. But the appropriate decree in the case as it stands is, that the account be taken. Campbell v. Campbell’s adm’r, 4 Hal. Ch. 738, 743; Hudson v. Trenton Loco. &c. Mfg. Co., 1 C. E. Gr. 475, 476.

I am not satisfied that there is nothing due to the complainant. The defendant admits that he has received the rents for which he is called to account, but at the same time alleges that they were received by him under an agreement by which he was to appropriate them to the payment of the complainant’s debt to him. There is no proof to sustain the irresponsive allegations before referred to. The defendant should be required to produce his proof. There will be a decree for an account.