Dodge v. Hogan , 19 R.I. 4 ( 1893 )

This is a bill to ascertain the amounts to be allowed the complainants for their support under an alleged charge on certain real estate and to enforce the payment of the amounts so ascertained. The case is as follows: Charlotte D. Dodge, the mother of the complainants Charlotte R. Dodge and Walter C. Dodge, died in Providence, on November 11, 1875, leaving a last will and testament, the third clause of which is as follows:

"I give and bequeath all the real estate of which I die seized and possessed and to me belonging at my decease, to and unto my said husband Christopher G. Dodge, and my children Mary E. Slocum wife of Nathaniel W. Slocum of Medford, Massachusetts, Charlotte R. Dodge, Sarah A. Dodge, Walter C. Dodge, Ida E. Burr, wife of George Burr of said city of Providence, (the whole being subject to the tenancy by the curtesy of my said husband) in the following proportions: Two thirds undivided of said real estate to my said husband and one undivided third thereof to my said children, to have and to hold said real estate subject to said tenancy by the curtesy to my said husband and my said children in the proportions and in the manner specified as aforesaid, their heirs and assigns forever: the two thirds devised to my said husband being, however, subject to the charge of providing a suitable and comfortable support for my two daughters, Charlotte R. Dodge and Sarah A. Dodge until such time as each of them shall be married, when and whereupon said charge as to them shall cease and determine: and also until such time as my son Walter C. Dodge shall engage in business, or shall learn a trade, from which business or trade he shall derive sufficient income to maintain and support himself comfortably according to his station in life, said two thirds of my real estate so given and devised to my said husband shall be charged for his support, and when my said son shall have the income aforesaid, derived in manner aforesaid then said charge on said real estate shall as to him also cease and determine."

At her decease the testatrix was seized and possessed of two parcels of real estate situated in Providence and particularly described in the bill, on which the complainants seek to enforce the charge. These two parcels are, 1, a lot of land, with the buildings and improvements thereon, between Fountain and Worcester streets on the westerly side of Union street, estimated to contain three thousand five hundred forty-five square feet, and, 2, two lots of land, with the buildings and improvements thereon, situated on the southeasterly corner of Holden and Jewett streets, numbered respectively 33 and 34 on the Plat of the Holden Estate, c., by Cushing Farnum, 1850. Lot 33 of this second parcel was subject to a mortgage for $600. Besides these two parcels, the testatrix at her decease was seized and possessed of another lot of land with the buildings and improvements thereon situated on Dodge street in Providence, which was mortgaged by the devisees named in the third clause of the will, on March 14, 1879, to Charles C. Weaver. The mortgage was foreclosed by Weaver by a sale and conveyance of the mortgaged estate, July 24, 1886, to Charles A. Cook.

Christopher G. Dodge, the husband of the testatrix and father of the complainants, died March 28, 1888. Since his decease, the respondents, John W. Hogan; John H. Coyle, George E. Tillinghast and Frank B. Hazard, have acquired by mesne conveyances from or under the several other devisees named in the third clause of the will, as such devisees and as heirs at law of said Christopher, the two parcels of land first above mentioned and are seized and possessed of the same as tenants in common in the following proportions, viz: Of the Union street estate, Hogan, twenty-three undivided sixtieths; Coyle, twenty-eight undivided sixtieths, and Tillinghast, nine undivided sixtieths. Of the estate on the corner of Holden and Jewett streets, Coyle, twenty-eight undivided sixtieths; Tillinghast, nine undivided sixtieths; Hazard, twenty-three undivided sixtieths.

Sarah A. Dodge, named in the said third clause of the will with the complainants as a beneficiary, married within a year or two after her mother's death and thereupon ceased to be entitled to the benefit of the charge.

The complainant, Charlotte, has never been married and for a number of years has been of unsound mind. Since October 1, 1892, no portion of the rents or income of the estates sought to be charged has been applied to her support by the respondents though demand on them in her behalf has been made therefor; nor have the respondents made any provision for her support out of the estates.

The complainant, Walter, has never engaged in business or learned a trade from which trade or business he has derived a comfortable support. He is mentally and physically weak and is incapable by reason thereof of obtaining and retaining steady employment. In May following his father's death he executed and delivered to one George W. Hubbard a warranty deed of his share in the real estate devised in the third clause of his mother's will for about three hundred dollars, though the share conveyed was worth in the neighborhood of three thousand dollars. After the money received from Hubbard was gone, his sister Mrs. Slocum procured employment for him at different times, but he was unable to retain his positions, partly on account of his health and partly because his services were not satisfactory to his employers. He then took up the peddling of small articles, such as writing paper, envelopes, court plaster, c., from house to house, by which means he has for several years earned small sums of money, but not enough for his support, for which to a considerable extent he has been dependent on others. He has received no portion of the rents or income of the estates sought to be charged since the respondents acquired the title thereto; and it does not appear that any demand therefor has been made on the respondents prior to his obtaining leave to intervene and become a complainant in this suit.

Both Charlotte and Walter are in a situation entitling them to the benefit of the charge if it is enforceable. The respondents contend that it is not. They base their defence in part on the assumption that the will created a strict rent charge, and that as Charlotte and Walter both joined in the mortgage to Weaver of the Dodge street estate which was one of the parcels of land subject to the charge, and this parcel was afterwards sold under the power contained in the mortgage and thereby released from the charge, the charge not being apportionable was extinguished as to all the other parcels. 2 Washburn, Real Property, 5th ed. 301.

A rent is defined as the right to the periodical receipt of money, or money's worth, in respect of land held in possession, reversion or remainder by him from whom the payment is due. 2 Washburn, Real Property, 5th ed. 284. This definition implies a fixed sum, or property amounting to a fixed sum, to be paid at stated times. A rent is regarded as an interest or estate in land which may be the subject of a grant and which may be created in fee, for life, or for years; if it be in fee or fee tail, it is subject to the incidents of curtesy and dower. 2 Washburn, Real Property, 5th ed. 287, 288. A moment's consideration will suffice to show that the charge for the support of the complainants has nothing in common with a rent, except that it is charged on real estate. In the first place, it is not a fixed amount nor is it required to be paid periodically. In the second place, it is not an estate which can be granted to another. It is rather an equitable charge or lien which appertains to the beneficiary personally and to him alone. Tiedeman, Real Property, § 647; Clapp v. Clapp,6 R.I. 129; Jordan v. Donahue, 12 R.I. 199; Willett v. Carroll,13 Md. 459; Luckett v. White, 10 Gill J. 480; GardenvillePermanent Loan Association v. Walker, 52 Md. 452; Ripple v.Ripple, 1 Rawle, 386; Rhodes v. Rhodes, 88 Ill. 139.

The respondents further contend that the bill ought not to be maintained because it seeks to charge only the Union street estate and the Holden and Jewett street estate and does not include the Dodge street estate which was originally included in the charge, but which was mortgaged as already stated, Charlotte and Walter joining in the mortgage, and sold under the power contained in the mortgage. This objection to the maintenance of the bill cannot avail. The mortgage referred to conveyed, not merely the right, title and interest of the mortgagors, but the estate itself. It contained the usual covenants for quiet enjoyment and of warranty which extended to the entire estate. By the covenant for quiet enjoyment, the mortgagors agreed that the mortgagee, his heirs and assigns, should, and might from time to time, and at all times forever thereafter, lawfully, peaceably and quietly have, use, occupy, possess and enjoy the demised and bargained premises, that is the mortgaged estate, with the appurtenances, free and clear and freely and clearly acquitted, exonerated and discharged of and from all and all manner of former and other gifts, grants, bargains, sales, leases, mortgages, wills, entails, jointures, dowries, judgments, executions and encumbrances of what name or nature soever, that might in any measure or degree obstruct or make void the mortgage deed. By the covenant of warranty, they engaged the demised premises, the mortgaged estate, to the mortgagee, his heirs and assigns, against the lawful claims and demands of any person or persons whatsoever forever to warrant, secure and defend. These covenants were covenants running with the land and would therefore be available, in case of a breach, not only to the mortgagee, but to the purchaser under the mortgage or his grantees. If the complainants were permitted to enforce the charge against the Dodge street estate they would thereby render themselves liable to suit on their covenants above recited by the owner of the estate to make good the damage sustained from the enforcement of the charge. The prevention of this circuity of action is the foundation of the principle of estoppel, which precludes a person from asserting any claim or title in derogation of his covenants. Jackson v.Bradford, 4 Wend. 619, 622; Jones v. King, 25 Ill. 383;Kerngood v. Davis, 21 S.C. 183, 209. Bigelow on Estoppel, 2d ed. 289, 301. Tiedeman, Real Property, § 728. If therefore, the complainants were to attempt to establish their lien under the charge on the Dodge street estate they would be held to be estopped from so doing, and, consequently, the effect of the mortgage containing the covenants recited was to release that estate from the lien of the charge and to leave the charge to rest on the two remaining parcels.

The respondents take the further point that inasmuch as the complainants took by descent from their father an undivided five sixtieths each of the two thirds of the real estate which remained at his death, subject to the charge, the charge is not enforceable because it was merged in their absolute ownership of the fee. The point is untenable. The charge in favor of the complainants cannot extend beyond their lives at the longest, while the estates taken by them by descent were in fee. The charge and the estate acquired by descent are, therefore, not coextensive and commensurate. When such is the case, though a merger takes place at law, it is not the necessary result in equity. Equity will not permit a merger except in accordance with the intention of the acquirer of the two interests or estates, and if he has expressed no intention will look to the circumstances of the transaction to ascertain what is for his advantage and will presume his intention to be in accordance therewith. 2 Pomeroy, Eq. Jur. §§ 787-791. Knowles v.Carpenter, 8 R.I. 548, 553; Duffy v. McGuinness, 13 R.I. 595; McGale v.McGale, 18 R.I. 675. It was clearly for the advantage of the complainants that the charge should be kept alive and, hence, the merger suggested did not take place.

It is conceded that the respondents purchased the estates with notice of the charge.

We are of the opinion that the charge is enforceable, and after due consideration of the circumstances we have fixed the sum to be allowed to Charlotte at five hundred dollars a year, to begin from the time when demand in her behalf was made on the respondents; and the sum to be allowed in favor of Walter at four hundred dollars a year. As, however, Walter, by his deed dated May 18, 1888, conveyed to Hubbard as before stated his nine sixtieths of the two parcels of land, and as his deed contained covenants for quiet enjoyment and of warranty in the same form as those which were contained in the mortgage of the Dodge street property, he is estopped thereby from claiming from the respondents holding these nine sixtieths that proportion of the four hundred dollars, to wit, sixty dollars, so that the amount to be paid under the allowance is reduced to three hundred forty dollars a year to be paid by the respondents other than the holders of said nine sixtieths. No demand on the respondents having been made by Walter or in his behalf, the payment on his account will begin from the date of the filing of his petition to intervene in the suit.

The ownership of the two parcels of land charged not being in the same respondents, the sums allowed must be apportioned between the two parcels. The data before the court is insufficient to enable us to make the apportionment. If the respondents are unable to agree, we will hear them on the question.