Roarty v. McDermott

O’BRIEN, J.

This action was for partition, and under the decree the property involved was sold, and, before the time when the purchaser was to complete had expired, final judgment ivas entered, confirming the sale, and directing distribution of the proceeds. The purchaser refusing to complete, plaintiff moved to compel him to do so, and succeeded at special term, only to be reversed at the general term, and then again to be finally successful in the court of appeals. J.t is shown that the proceedings to compel the purchaser to take were with the knowledge and approval of the parties to the action, although it is not claimed that there was any agreement, or that they undertook, to reimburse plaintiff for any expenses he might be put to in such proceedings. It is not disputed that the attorneys’ services and disbursements rendered and incurred subsequent to the final ■judgment were reasonably worth the amount claimed, $597.47, but the motion to have this sum deducted from the proceeds of the sale was denied at the special term on the ground of want of power. In this we think the special term was right. After final judgment, and after the rights of the parties are fixed, there is no express authority for the granting of any additional amounts out of the fund. Recognizing the force of this, the plaintiff contends that, as the expenses of the sale were directed to be paid, these services may be regarded as coming within that category. What are to be included in the expenses of a sale are so well understood as not to require enumeration; it being sufficient to say that they do not include the expense of a proceeding such as was here brought, to compel a purchaser to complete. In common with the others, plaintiff claimed to have an interest in this property, and by the final judgment his interest was fixed and defined; and it was his privilege, upon the purchaser’s refusing the title, to take such proceedings as he thought proper to compel him to complete, and thus obtain the fund out of which the amount of his interest could be paid. If he was unwilling to undertake this burden and expense alone, he could have arranged with the •other parties by agreement for the payment of their proportion. In the absence of such an agreement, we do not think the court would be warranted in compelling the parties to contribute their proportions, or, against their objection, allow the amount to be deducted from the proceeds of sale.

That this is the correct view, we think, becomes clearer if we consider what would be the situation had the plaintiff failed, instead of succeeding, as he did, in the proceedings. Plaintiff’s theory is that, for expenses incurred for the common benefit of all, he should be reimbursed. If this principle is sound, there is no reason why they should not be paid him whether successful or unsuccessful, assuming that the proceeding is taken in good faith. Upon the refusal of a purchaser to complete, it might very well happen, in a given case, that the objections to the title would be regarded as valid by some of the parties, though seeming untenable to the one who concluded to conduct the proceeding to compel the purchaser to take title. In' such a case, if the proceedings were unsuccessful, it would be unjust to the one who concluded that the objections made were valid to compel him unwillingly to contribute to the expenses. Yet, if the plaintiff is right, no good reason can be suggested why in one case one should not be required to pay his proportion more than in the other. The underlying principle is that though one, in endeavoring to enforce his own right, may thereby confer a benefit on others, he cannot, in the absence of some express statute or agreement, compel the latter to share with him the expense. Our conclusion, therefore, is that, as the plaintiff could have no lien on the fund for such claim, and as there was no agreement between the parties, and we have been referred to no statute which would justify it, as stated, we concur in the view of the special term, that the court was without power to order the referee to pay the amount out of the proceeds of sale. The order, therefore, is affirmed, with $10 costs and disbursements. ■ All concur.