Allen v. Gates ( 1902 )

Start, J.

When this case was before this court, as reported in 73 Vt. 222, 50 Atl. 1092, it was. held that there was due the defendants, November 4, 1897, f°'r the building in question, the sum of five hundred and two. dollars and nineteen cents, and that the defendants are entitled to the rents and profits of the premises as they accrue and are collected, to be ap>plied toward the payment therefor. Thereupon, the cause was remanded to the Court of Chancery, with mandate, among other things, that the cause be referred to a master for an accounting upon the sum due in equity to the defendants. An accounting has been had pursuant to the mandate, and the only questions now properly before us for consideration are those arising upon the master’s report.

Upon the accounting, there was allowed to the defendants the sum of five dollars, and interest thereon, for rent paid by the ■defendants for the use of a strip of land situate on the east side of the premises in- question. The sum due to the defendants for the building in question is in no- way chargeable upon this strip of land, nor upon the rents and profits of the same; therefore, in determining what sum remains a charge upon the rents and profits of the building and the land upon which it stands, this item should be excluded. Also the item of seventeen dollars and thirty-one cents paid by the defendants for taxes, and interest on the same, should be excluded. The master finds that the tax was assessed on the list of 1898 to Whitney, on account of the building, because the defendants did not file their deed for record until the grand list had been made up for that year; and the master submits to' the court the question whether this item should be credited to' the defendants in the accounting. The defendants were not in the possession or control of the premises at the time they paid the tax, and sufficient facts are not found to show that the orator was under a legal duty to pay the same, nor that it was a charge upon the premises. Therefore, it cannot be considered in determining what sum remains a charge upon the rents and profits of the premises.

The master finds that the defendants expended the sum of one hundred and seventeen dollars and thirty-five cents for general and needed repairs upon the building, and that these repairs were made in good faith and benefited the building to the extent of their cost. The case shows that the defendants purchased the building of Whitney, paid three hundred dollars therefor, and claimed to own it at the time the repairs were made. See 73 Vt. 222, 50 Atl. 1092. Under these circumstances, the defendants might well believe that they were the owners of the building; and, it being found that they acted in good faith and that the building is benefited to the extent of the expenditure, this sum should be credited to them in an accounting, for the purpose of finding what sum they should account for as rents and profits. Rutland Railroad Co. v. Chaffee, 72 Vt. 404, 48 Atl. 700.

The defendants took possession of the building on the 4th day of November, 1897, and continued in the possession and occupancy of the same, without hindrance from any source, until the 2 xst day of May, 1898, when, by the procurement of the orator, they were enjoined from removing the building, and from otherwise interfering with it, until the further order of the court. The master finds the rental value of the building during the period the same was so occupied by the defendants,was one hundred and twenty-nine dollars and twenty-eight cents. This item, with interest, was properly charged to the defendants in the accounting. They saw fit to occupy the building themselves, instead of renting it, and the fact that their occupancy and use of it was not profitable to them does not exempt them from liability for the rental value.

In May, 1898, the defendants undertook to remove the building from the orator’s land. They employed a careful and skillful workman to superintend the moving of the same, and the building was placed on rollers ready for removal, when they were enjoined from removing or interfering with it, as is before stated. The master finds that at the time the injunction was served upon the defendants, the building could have been put in as good shape as it was before the attempted removal for fifty dollars. This sum, with interest, was properly chargeable to the defendants in the accounting. It was damage that accrued to the orator in connection with the property, by reason of the wrongful act of the defendants in attempting to remove the building, and should be adjusted in an equitable accounting respecting the same.

The defendants are not liable for damage to the building that was caused by neglect, trespasses, and the ravages of time, after the injunction order was served upon them; nor are they liable for the rental value of the same during the same period. The injunction prohibited them from interfering with the building; and, upon the service of the same, the orator’s agent entered the building, changed the combination on the lock, fastened it up so as to prevent others from' going therein, and lowered the building upon the foundation, where it has since ■remained, and the defendants ceased to occupy, control or interfere with the same. The injunction admits of the construction thus given to it by the defendants, and it was procured and kept in force by the orator. Under these circumstances, the defendants were under no duty to care for, occupy, rent or control the building. Tire duty of looking after and controlling the same, after the defendants were enjoined from interfering with it and excluded from its possession and- control by the acts, of the orator, rested upon the orator; and, if any loss has come-to -hirp, it is due to his neglect and inattention, and the same is. not equitably chargeable to the defendants.

Decree reversed and cause remanded, with mandate.