Appeal of Wistar , 125 Pa. 526 ( 1889 )

Opinion,

Mr. Justice Sterrett:

Little, if anything, can be profitably added to what has been so well said by the learned judge of the Orphans’ Court in support of its decree.

In view of all the circumstances, the allowance to the trustee for his services in conducting the sale, etc., measured as it was by one per centum of the amount realized, cannot be regarded as unreasonable. It is conceded on all hands that the services were efficient and valuable. If the trustee had been required to furnish security, the ordinary allowance would have been at least twice as much, and thus the expenses of sale would have boon increased. The fact that the parties interested in the fund to the extent of two thirds are not dissatisfied with the allowance, is strongly persuasive of its reasonableness.

The offer to interject claims for contribution for taxes paid by two of the six tenants in common, during a period extending back to 1866, and for other claims against the land alleged to have been paid by them, was properly rejected. Ordinarily the only claims that, of right, can be made upon a fund raised by the sale of land, under proceedings in partition, are the expenses, including costs, and liens on the land at the time it is sold. The latter by reason of the conversion of the land into money retain their grasp on the fund, and must, of course, be paid out of it. The former are charges on the fund in the nature of a lien for cost of producing it, and are always deducted before distribution. But claims for contribution, such as were presented in this case, if allowable at all, must rest on an equitable basis.

In this case the appellants had no equity which, under the circumstances disclosed by the record, the court was bound to recognize. For many years they were in exclusive possession and enjoyment of the land, all the while ignoring the title of their co-owners and excluding them from any participation in its management or control. During that time, they paid in their own right and for their own benefit, as they supposed, the. sums of money for which they now claim contribution from the appellees, who represent two thirds of the fund realized from the sale in partition. It also appears that the owners of an undivided moiety of the land, in May, 1887, sold their interest to Messrs. Elkins and Widener. They, as vendees of that interest, now rightly claim one half the net proceeds sale, less costs. Upon what principle, legal or equitable, can they be called upon to contribute to claims, none of which were liens on the land when they purchased, and of which it does not even appear that they had any notice ?

The remaining specifications are also without merit. There is nothing in either of them that calls for a reversal or modification of the decree.

Decree affirmed, and appeal dismissed at the costs of appellants.