Brady v. Brady ( 1912 )

The main question presented by this appeal is whether the defendant was entitled to be credited, in the accounting, with one half the cost of about $7,000, paid by him in the construction of the building upon the land owned by himself and his wife in common.

This case was before us at the October term, 1909, upon the plaintiff's appeal from the interlocutory judgment of accounting, the ground of the appeal being that "no foundation was laid in the pleading" for an order that the cost of the store should be considered in making up the account.

In sustaining the interlocutory judgment, we said that the due proportion of the rents received by the defendant which he was entitled to retain, could not be determined without considering all the equities between the parties arising out of their dealings respecting the land in question; that under the conditions then before us there was no presumption of law of an intention to make a gift to the plaintiff; that the defendantmight have a right to charge the plaintiff with half the cost of the store, and that he "was entitled to be heard upon the question whether what he had paid out for the store should be allowed, in whole or in part, as an item of credit in any accounting which might be ordered." Brady v. Brady, 82 Conn. 424,426, 74 A. 684.

It is quite evident from this language, and from the record of the former appeal, that we did not then, nor did the Superior Court in rendering the interlocutory judgment that there be an accounting, assume to decide the question of whether the defendant was entitled to the claimed credit.

The finding of facts in that appeal did not state nor assume to state all the equities bearing upon that question. There was wanting in that case, among other facts, the important ones affecting the equities between the parties, of their intention and understanding as to the repayment to the defendant of the cost incurred by him in the construction of the building, as to who was to receive the income from it, and the benefit of the building, and the fact that though receiving all the rents of the building since November, 1905, when the parties separated, the defendant has failed to contribute to the support of his wife since that date.

After the committee had made its report, the Superior Court, from whose action the present appeal is taken, had before it the material facts necessary to enable it to determine, had it been asked to do so, whether the account as made up by the committee was settled upon an equitable basis, and to correct it, if it was not, at least to the extent of deciding that the claimed credit of half the cost of the building, or a certain part thereof, should be allowed, without rejecting the entire report, or recommitting it for another trial, as the defendant requested.Patterson v. Kellogg, 53 Conn. 38, 40, 22 A. 1096.

But assuming that the action of the Superior Court in overruling the defendant's remonstrance and motion, and in rendering the final judgment, was based upon its conclusion that the account as made up by the committee was as a matter of law just and equitable, do the facts found show that such conclusion was erroneous?

The plaintiff has, ever since 1893, held the legal title to an undivided one-half interest in the land, and since 1894 has held the same title to the building which was then erected upon the land, and became a part of it. When the defendant erected the building upon the land owned by himself and his wife in common he must be presumed to have intended, in the absence of evidence to the contrary, that she should have the legal title to a one-half interest in the building which was a part of that land.

Again, there was no agreement or understanding that defendant should receive all the rents from the building until he should be reimbursed for the cost of construction, or that his wife should in any manner pay to him one half of such cost. On the contrary, it is found, "that both intended that said building should be for the joint benefit of both," and that "the defendant had no intention of charging the plaintiff with the expenditures made by him." Under this understanding standing the defendant, for a period of more than ten years, made no claim that his wife should pay any part of the cost of constructing the building, and no part was paid by her. To permit the defendant to collect the entire rent of the building and appropriate it until the cost of construction was fully paid, without contributing to her support in the meantime, would not accord with the understanding and action of the parties.

But the defendant argues that such original intention and understanding should no longer be considered, because the husband and wife have lived apart since November 12th, 1905. But the plaintiff is still the defendants wife. It does not appear that the separation was caused by her fault, or that she is not in need of support from this property, or that he is not still as liable for her support as before the separation.

We discover in the record no sufficient reason for holding that the account as made up by the committee was unjust or inequitable, or that the judgment of the Superior Court was erroneous.

We have no occasion to discuss the rulings made by the committee during the trial, as the defendant's objections to them were not pursued in the remonstrance or elsewhere.

There is no error.

In this opinion the other judges concurred.