Zapp v. . Miller

Peckham, J. This action was brought to set aside four several deeds executed by the plaintiff to defendant, conveying lands in Hew York, on the alleged ground of fraud and undue influence on the part of the defendant. The trial resulted in a finding by the court, before whom it was tried without a jury, in favor of the plaintiff; and in the written decision of the court, after a statement of the facts found, there is contained a statement of the conclusions of law, the second conclusion being in the following language : “ Second. That plaintiff is entitled to judgment; that the defendant account for all his dealings with and transactions in regard to the property of this plaintiff, and that he be adjudged to pay to this plaintiff what, if anything, shall, upon the taking of said accounts, appear to be due her, said plaintiff. Let judgment be entered accordingly, with costs to the plaintiff.” This decision was signed by the justice trying the case. Judgment was entered upon it which contained a provision referring it to a referee therein named to take the account and report to the court thereon. This judgment was also signed by the trial judge. Pursuant to its provisions the reference was had, and upon appealing before the referee the counsel for defendant objected to the proceeding, as the case states, because all that part of the interlocutory judgment not specified in or going beyond the judgment directed to be entered by the decision of the judge who tried the cause was unauthorized and void. The objection was overruled and defendant excepted. The reference proceeded and upon the report of the referee a final judgment was entered which was modified in one particular by the General Term, and, as modified, affirmed. The defendant then appealed from the judgment of the General Term to this court, and in the notice of appeal his attorney stated that he also *56 appealed from the intermediate order of the General Term affirming an order of the Special Term denying defendants motion to set aside and vacate the interlocutory judgment above mentioned. This is the only evidence before this court that any motion was ever made to set aside the interlocutory judgment, as there is not contained in the record before us any order of the Special Term denying the motion or any order of the General Term affirming such denial, nor are there any papers upon which such motion was made. We could not review an order which does not appear in the record and in regard to which no papers are found therein, although the notice of appeal to this court assumes their existence. But we think that the interlocutory judgment was a mere amplification or carrying out of the decision of the trial judge who held therein that the defendant must account for his dealings and pay the sum that should appear upon the taking of the accounts to be due the plaintiff; and the appointment of a referee by the court who tried the cause, was a natural consequence of his decision, and being contained, as it was, in the interlocutory judgment, also signed by him, was a perfect authority to the referee and was authorized by the decision of the judge. The case cited by the learned counsel for defendant of Clapp v. Hawley (97 N. Y. 610), is scarcely so broad as claimed by him. In that ease the defendant made a motion at Special Term to compel plaintiff to accept a notice of appeal from a judgment. It was denied by the Special Term, and,jupón appeal, that order was reversed by the General Term, and the plaintiff appealed here. The judgment was a final one, and, as entered, had been signed by the judge who rendered the decision. A copy of the judgment, but without the signature of the judge, was served on the defendant and the question arose whether there had been a regular service of a copy of the judgment, for if there had the appeal was too date. This court held that the signature of the judge to the. final judgment was no part thereof, and that it needed no signature, and that the decision was the only authority for the judgment, which must conform to the *57 decision. But here there was an interlocutory judgment to be entered by virtue of the decision of the judge trying the cause, for the decision contemplated an accounting, and the referee to take and state the accounts and report to the court could have been named in the decision, or, as we think, by the court in the interlocutory judgment to be entered upon it. The trial judge did not lose his power to order the reference and to name the referee by omitting to do it in the decision, so long, at least, as the decision clearly and evidently contemplated the stating of an account between the parties, which is almost universally taken by a referee, and the judgment appointing him was strictly carrying out the decision which was made. We have no doubt of the regularity of the proceedings so far as this point is concerned. The next point made by the defendant’s counsel is, that the courts below erred in charging the defendant with the rent of the rooms occupied by him after the execution and delivery of the deeds to defendant by the plaintiff, because, as he says, assuming the deeds were void, the parties were then tenants in common of the real estate, and there being no agreement to pay rent he was not liable to his co-tenant for his mere use of the common property. The counsel cites a number of cases holding that the mere occupation by one of several tenants in common of an estate does not make the occupant hable to his co-tenant for the rent of the premises. Such are the cases of Woolever v. Knapp (18 Barb. 265); Dresser v. Dresser (40 id. 300); Roseboom v. Roseboom (15 Hun, 309). These cases refer to the leading one of Henderson v. Eason (9 Eng. L. and Eq. 337), where such a proposition was decided, and there is no doubt of its correctness. But that case, and all the others resting upon it, contains the qualification that the other tenants shall not be excluded or ousted from the possession of the premises or their title denied, in which event the other tenants may maintain ejectment to recover possession and then an action to recover the mesne *58 profits. (1 Co. Litt. 784; 4 Bac. Abr., title Joint Tenants L. 518.) And in order to prove an ouster it is not necessary to prove a violent ejectment, or as one of the cases has it, it is not necessary to prove the party was set out by the shoulders. It may be inferred from circumstances. (Doe ex dem. Fishar v. Prosser, 1 Cowp. 217; Hornblower v. Reed, 1 East, 568; Goodtitle v. Tombs, 3 Wils. 118, cited in 1 Coke, 906; 4 Kent m. p. 370, note a.) Obtaining title to the whole property held in common, by virtue of fraud and undue influence practiced on the co-tenant, who thereupon leaves the premises is, as we think, an ouster of such co-tenant and would enable him to bring ejectment. ■ There is no' question raised here as to the form of the action, and under our liberal system of pleadings and the abolition of forms of actions, there was enough shown to render it proper and right in this action to charge the defendant with the rent under the modified judgment of the General Term. The remaining question as to the taxes paid by the defendant during the lifetime of the tenant for life, was properly decided. The proof is undisputed, and it is sufficient to show that he paid such taxes as an accommodation and loan to the life tenant who was the defendant’s mother, and who, of course, was hable to pay and keep down the ordinary taxes levied upon the property. Failing to recover from her the amount he advanced to her, or on her account, he cannot charge any portion of that amount so paid by him to the plaintiff herein. The judgment should, therefore, be affirmed, with costs. All concur. Judgment affirmed.