Fassitt v. Seip , 249 Pa. 576 ( 1915 )

Opinion by

Mr. Justice Mestkezat,

This is a bill in equity filed May 1, 1913, by the plaintiff’s guardian for the partition of three pieces of real estate held by the plaintiff and the defendant as tenants in common, and for an accounting of the rents and profits of the property while in the occupancy of the defendant. The plaintiff became of age on Juñe 12, 1913.' A decree was entered in favor of the plaintiff January 26, 1915, from which both parties have taken an appeal. The appeals will be disposed of in oñe opinion. The' learned master made an exhaustive report in which he found the facts and stated his conclusions of law. His findings and report were confirmed by the court below. It would serve no good purpose to review at length either his findings of fact or his conclusions of law, so far as they relate to the defendant’s appeal, as we are all satisfied that it is- without merit save in the minor details hereinafter noticed.

The principal question in the defendant’s appeal is as to the validity of an alleged compromise or family settlement made by representatives of the plaintiff and the defendant by which they agreed to accept the provisions of the will and codicil of Mrs. Theresa Veile, and that the income given to the child by the codicil to the will of Theresa Yeile should be paid to her by the defendant. It is claimed on the part of the defendant that this was a family agreement which was intended to protect the defendant and also the interests of Clarissa M. Yeile, the plaintiff, by giving her the income provided in the will of her grandmother. It is contended that the agreement was a compromise of possible litigation and accepted by all the parties in interest and that it bars the plaintiff from recovering from the defendant her share of the rental value of the property which was in the defendant’s occupancy from 1894 until 1913, when it was determined by this court that the title to the premises was in the plaintiff and defendant as tenants in common. The agreement in question is a writ: ing signed by Florence R. Veile for her daughter, Clarissa M. Veile, in which is recited a codicil to the will of Theresa Veile, the grandmother of the plaintiff and the mother of defendant, who claimed the property, by which the defendant was required to pay the plaintiff forty dollars per month, during the defendant’s lifetime, and which writing acknowledged the receipt of forty dollars, being the first monthly payment under the codicil, and declared “that I accept all the provisions contained and set forth in said last will and testament and codicil thereto.” This paper is dated May 7, 1894. At this time Clarissa Veile was not quite two years of age and the Easton Trust Company was her guardian. It is strenuously contended by the defendant, in an elabor: ate argument dealing with the testimony and the law, that this was a family settlement or compromise which is binding on the plaintiff, and deprives her of the right to recover her share of the rental value and income of the property from the date of the death of the life tenant, Mrs. Theresa Veile, until it was determined in 1913 by the decision of this court that the plaintiff was the owner of the undivided one-half interest in the property. We, however, entirely agree with the court below and the learned master who found that “the acceptance by plaintiff’s mother during plaintiff’s minority of certain payments made to her by defendant pursuant to the terms of the will of Theresa Veile, and the acceptance by her (the mother) of the provisions contained in said will, which acceptance was ratified neither by the guardian nor by herself when she became of age, cannot be set up by defendant as a bar or defense to plaintiff’s claim in this proceeding.”

The facts are found and clearly stated by the learned master, and it does not appear that there were any other writings bearing on the question of the alleged settlement, or that the guardian of the plaintiff signed, ratified or approved it. The guardian was not present when the paper was executed by the mother of the child, was not consulted beforehand about it, and had no knowledge of it until the mother had signed it. It is unnecessary to discuss what took place between Mr. Scott and Mr. Cope, the attorneys alleged to have represented the interests of Mrs. Seip and the minor child and her mother, or the telephonic communication with Mr. James, the president of the Easton Trust Company, as the writing executed by the mother of the minor must be relied on to establish the family agreement. It is clear that she had no authority to bind her minor child or to make any agreement which would affect the latter’s rights in the real estate in question or the income or profits arising therefrom: Senser v. Bower, 1 P. & W. 450; Heft v. McGill, 3 Pa. 256, 263; Groome v. Belt, 171 Pa. 74. It must be assumed that the eminent counsel, acting for the parties in the transaction, were fully aware, not only of the interest of the minor in the property but also of the only legal way in which it could be affected or divested. The president of the Easton Trust Company, the guardian, was also a lawyer of high professional standing and, therefore, manifestly knew that the mother’s signature to the paper in question could not bind, her infant child. The guardian did not sign the paper and thereby become á party to the alleged family settlement. It received none of the annual payments directed to be made by the will of Theresa Yeile. The annual installments were all paid to the mother and receipted for by her. In fact, Mrs. Seip and her counsel dealt entirely with the mother, to the exclusion of the guardian. Why the guardian did not act for its ward and execute the paper in question does not appear, but may be inferred from the fact that the alleged compromise was manifestly against the interests of its ward. • The guardian repudiated the alleged settlement by bringing the action of ejectment in 1912 and subsequently filing this bill for an accounting of the rents, income and profits of the property while it was in the possession and occupancy of the defendant. The learned counsel who acted for Mrs. Seip and for the child’s mother respectively and the president of the trust company knew that the guardian was the only party who could legally represent the child in effecting a settlement. There could be, therefore, no reasonable ground for the defendant’s belief that the paper in question was a valid legal family settlement which bound Clarissa Veile, the two year old child. Mrs. Seip could not have been misled as to the effect of the paper in view, of the fact that she was represented by such eminent counsel. In fact, the paper signed by the mother was not a release to Mrs. Seip, or anything but a receipt and a declaration that the mother, on behalf of her daughter, accepted all the provisions of Theresa Veile’s will and codicil. The only inference that can be drawn from the whole transaction is that Mrs. Seip was willing to deal with the mother of the child instead of the guardian, and that the latter did not intend to bind itself or its ward by the paper executed by the mother. A chancellor cannot make an agreement for parties nor enforce an agreement against one who is not a, party to it. We. think the learned master and court below were clearly right in their conelusion as to the purpose and validity of the alleged agreement.

The rental value of the property during the defendant’s occupancy and the application of the statute of limitations raised on the defendant’s appeal are fully discussed by the learned master and require no further consideration here. An examination of the evidence does not convince us that the master erred as to the rental value for which the defendant should account. As said by the learned court below, the master fixed the rental value of these properties upon testimony that commended itself to him, and his findings have the effect of a verdiet of a jury unless clearly erroneous.

We think, however, that the learned master and the court below should have allowed credits for one-half of such taxes, water rents, insurance and repairs on the brewery property as are shown by the evidence to have been paid by the defendant and for the monthly payments made by the defendant to the mother of the plaintiff during the whole period of the defendant’s occupancy, to wit: since April 7, 1894, in view of the fact that we hold, as hereinafter stated, that the statute of limitations is not a bar to an accounting for the rental value of that property since that date. With the exception of these credits, the defendant’s appeal must be dismissed. The master was right in holding that the defendant is not entitled to credit for expenditures for new buildings erected on the property, or for enlargements, reconstruction or improvements on the common property: Gregg v. Patterson, 9 W. & S. 197; Crest v. Jack, 3 Watts 238; Dech’s App., 57 Pa. 467; Kelsey’s App., 113 Pa. 119. We think there was no error in allowing interest on the rentals of the several properties as computed by the learned master.

The assignments filed by the plaintiff in her appeal raise but a single question, namely, whether, as the master and court below held, the statute of limitations is a bar to the plaintiff’s right to an accounting for the rental value or mesne profits of the brewery property beyond six years prior to tbe bringing of tbe ejectment suit. Tbe master made a distinction between the status of tbe brewery property and tbe other two parcels of property included in tbe partition proceedings, on tbe ground that tbe defendant occupied and used tbe brewery property in person and, therefore, received no rental income •as such therefrom, while tbe other two parcels were-occupied by tenants from whom tbe defendant received rent. As to tbe other two parcels be held that the statute of limitations could not be invoked to prevent an accounting for tbe whole period of tbe defendant’s occupancy of tbe property, and required her to account from tbe death of tbe life tenant in 1894. Tbe plaintiff contends that tbe defendant cannot set up tbe statute to defeat an accounting for tbe whole period because (1) she was under legal disability, being a minor; and (2) because defendant both expressly and impliedly acknowledged liability to account, promised to pay tbe amount found due, and waived tbe statute.

Tbe title to tbe property was in Xavier Veile who devised it to bis widow, and after her death to bis two children for life and then to bis grandchildren. His widow, Theresa Veile, took possession of tbe property, claiming that under her husband’s will she was entitled to tbe fee. She devised tbe property to her daughter, tbe defendant, with tbe provision that tbe devisee should pay Clarissa Veile, tbe plaintiff, forty dollars per month during the defendant’s lifetime. At tbe death of her mother- in 1894, tbe defendant took possession of tbe property, claiming to own it in fee simple, and retained possession until it was decided by this court in Fassitt v. Seip, 240 Pa. 406, that Theresa Veile bad only a.life estate with power of consumption and could not by will dispose of any estate derived under her husband’s will remaining at her death. Tbe title to tbe property was therefore in tbe plaintiff and defendant as tenants in common, tbe defendant having purchased tbe interests of her children in 1902. The adverse holding by the defendant was from the death of the life tenant in 1894 until the rights of the parties were determined by the ejectment in 1913.

We think the learned court was in error in applying the statute during the period of the minority of the plaintiff, who was about two years of age in 1894 when defendant went into possession of the premises, and had not attained her majority when this proceeding was commenced- in the court below.

' Section 5 of the Act of March 27,1713,1 Sm. Laws 76, 2 Purd. 2293,-provides, inter alia, as follows: “If any person or persons who' is or shall be entitled to any such action of trespass, detinue, trover, replevin, actions of account, debt,...... be, or at the time of any cause of such action given or accrued, fallen or come, shall be within the age of twenty-one years,......that then such person or persons shall be at liberty to bring the same actions, so as they take the same within such times as are hereby before limited, after their coming to or being of full age.” The learned court'below held that this section of the act, in favor of the minor, did not apply in the present case because she had a guardian who was appointed shortly after the defendant took possession of the premises and who could have protected her interests by an appropriate action at law or in equity. The master found that the rental value of the brewery property was $3,000 per annum during the whole time of its occupancy by the defendant. The latter is compelled by the court below, under its ruling, to account for the ' rentals for only six years prior to the institution of the action of ejectment, or from the year 1906, and not from the year 1894 when the defendant went into possession of the premises.

The section oLthe act just quoted makes no distinction between an infant with a guardian and without a guardian; It prevents the running of the statute in áll cases where 'the person entitled to sue is within the age of twenty-one years, and permits such person to bring the action after lie arrives at full age. The legal title to the property was in the infant and not in her guardian and, therefore, the right of action was in the infant and not in the guardian. We can see no reason for the distinction made by the learned master and the court below be- - tween an infant without a guardian and one having a guardian. It is true, that a guardian may bring an action to protect his ward’s interest, but if he fail to do so the infant may institute an appropriate action for enforcing his rights after he becomes of age. If the legal title was in a trustee or in a guardian it would be different, and in such case if the action was not brought within the statutory period it would be barred as to the person under disability during the period of limitation. Here, however, the legal title was in the infant and not in the guardian or in a trustee, and hence that rule cannot be invoked to deprive the beneficiary of her right of action after she has attained her majority.

In Wood on Limitation of Actions (3d Ed.), Sec. 238, the rule is announced as follows: “Persons who have not attained the age of majority are infants, and in those states where infancy is within the saving clause of the statute, the statute does not begin to run against him or her, even though he or she has a guardian who might sue the claim in question; nor even though other persons are jointly interested in the claim, who are of full age, until he or she attains the age of majority. The fact that a guardian or the infant himself brings a suit before the disability is removed does not operate as a waiver of the saving clause in favor of the disability.” In 25 Cyc. 1260, 1261, citing many authorities to sustain the text, it is said: “In many jurisdictions, by express statutory enactment, or by judicial construction, where the statute excepts persons laboring under disabilities from its operation, without mentioning infants specifically, infants are within the saving clause of the statute, and the statute does not run against them during such disability, even where such infant has a guardian who might maintain the action in his or her name, provided the title or right of action is in the infant.” The rule announced in the text hooks is supported by numerous decisions: Fink v. Campbell, 70 Fed. 664; Snare & Triest Co. v. Friedman, 40 L. R. A. (N. S.) 367; Henley v. Robb, 86 Tenn. 474; Frost v. Eastern R. R. Co., 64 N. H. 220; Keating v. Mich. Cent. R. R. Co., 94 Mich. 219; Monroe v. Simmons, 86 Ga. 344, 346; North v. James, 61 Miss. 761. The distinction, suggested above, that the rule does not apply when the right of action is in a trustee who is vested with the legal estate and is competent to sue is adverted to and the cases sustaining it are cited in these authorities.

If, as. suggested above, the legal title is in a guardian or trustee for a minor or other person under disability, the statute will run and the action must be brought within the statutory period or it will be a bar both as to the trustee and the beneficiary. This is the doctrine of the authorities cited and relied on by the learned master. In such cases the party entitled to sue has the legal title and labors under no disability and hence the action must be brought within the statutory period. The distinction between such cases and those where the legal title is in an infant or other person within the saving clause of the statute is pointed out in the text books referred to above and the numerous decisions on the subject.

In the case in hand, the title to the undivided one-half of the real estate was in the plaintiff from the date of her father’s death, subject only to the life estate of her grandmother. The rentals claimed were due on this real estate and hence the right of action was in the plaintiff. The saving clause of the statute, therefore,, protected her against the running of the statute until she became of age.. It is true, that this suit was brought by her guardian, but, as will be observed under the authorities cited above, the bringing of such suit does not waive the exception to the statute of limitations. The statute was, therefore, not a bar to the plaintiff’s right to recover her share of the rentals of the brewery property from the date of the death of the life tenant in April, 1894. There is nothing in the Act of June 24, 1895, P. L. 237, which prevents a recovery thereunder of the rental value for the occupation of property held in common before the passage of the act.

We are also of the opinion that the defendant waived the benefit of the statute by the agreement of January 9,1914. This agreement refers to the brewery property, and the fourth paragraph provides inter alia, that the master shall proceed to determine “the total amount of the net rental value of the premises for the period during which they have been in the use and occupancy of the defendant, to wit: from April 7, 1894, to the date hereof, in the same manner and to the same extent as if this agreement had not been made; and the plaintiff’s share of such rental value, as thus found and determined, shall be added to her other interest in said premises as determined by the valuation herein agreed upon, to wit: one-half of $30,000, and deducted from the defendant’s share or interest therein; the whole amount, to wit: the sum of $15,000 and the sum of one-half the net rental value of said premises, as thus found and determined, to be paid in cash by the defendant to the plaintiff.” In paragraph 9 of the agreement reference is made to “the plaintiff’s share of the net rental value, whatever the amount thereof may be.” The only purpose and effect of the tenth paragraph, as disclosed by its language, was to preserve the right to claim credits for improvements, etc., made for the benefit of the property. If this right was reserved, why was not the right to plead the statute of limitations also reserved if it was so intended? This action was brought prior to the date of the agreement and the statute of limitations had not then been pleaded. We think the defendant by this agreement waived the benefit of the statute and agreed to pay the plaintiff one-half of the net rental value of the brewery property from April 7,1894, the date of the death of the life tenant.

The agreement of 1914 provides that there shall be deducted from the plaintiff’s share of the net rental value of the brewery property the amounts of cash paid from time to time by the defendant to the plaintiff or to her guardian and mother since April 7, 1894. The master, however, only allowed as credits on the rentals, the amounts paid within the six years, instead of allowing the total amount paid since April 7,1894. The intention of the agreement, as disclosed by its language and as we have held, was that the master should determine the net rental value of the premises from the death of the life tenant in 1894 and award to the plaintiff her share thereof, less the total amount of cash paid to her during the same time. As suggested above in discussing the defendant’s appeal, a credit should be allowed for the taxes, etc., paid by defendant on the brewery property during the same period.

Both appeals must be sustained and the decree modified to the extent indicated. The record will be remitted to the court below for the purpose of modifying its decree in accordance with the views expressed in this opinion. As thus modified, the decree of the court below is affirmed.