Roosevelt v. Post

The Vice-Chahcelloe. The master has taken an account of the wharfage received from the bulkhead by[¡the several defendants for the whole period of possession prior to the filing of the complainant’s bill, that is to say, from the year one thousand eight hundred and eighteen to November one thousand eight hundred and twenty-nine; with the amounts received by the defendants respectively; and what would be the complainants proportion thereof and the sums which would be due from the defendants to make up such proportion. Upon the supposition, however, of the complainant’s not being entitled to an account of the same for this length of time, but only for six years prior to the filing of the bill, the master has stated what would be the complainant’s proportion of wharfage received during the latter period and the sums payable by the defendants to satisfy the same. The master has also supposed [581] the question was left open for him to determine upon evidence to be produced, whether the complainant was entitled to any of the wharfage received anterior to the filing of the bill; and having arrived at the conclusion of his being entitled to an account only from the filing of such bill, he reports that nothing is due from the defendants to the complainant. No exception is taken to the report, so far as it ascertains the customary mode of apportioning wharfage or gives the rule by which it is to be apportioned in this case. But the complainant objects to it, because, as it stands, the same goes to deprive him of all benefit of the wharfage received antecedent to the commencement of the suit. He claims his share and an account from the year one thousand eight hundred and eighteen, when his right first accrued. The principal question, therefore, which I have to determine is, as to the period from which the account ought to commence ? This point was not passed upon at the time the decretal order was made. Indeed, the cause, as then submitted, did not distinctly present any other question than the general one as to the right of the complainant to participate in common with the defendants in tile wharfage of the bulkhead. From the evidence produced before the master, he reports these facts : that the wharfage was collected by a wharfinger, the common agent of the parties, and paid over-by him to the defendants in certain proportions as suggested or directed by Mr, Garret B. Abeel, to the exclusion of the complainant and without any measures being taken by him to prevent it; and that the latter did not assert any right during the Whole period or mention his claiming wharfage, except on one or two occasions, when he intimated to the agent that he considered himself entitled to a proportion of it. And by his loches in not filing a bill sooner, the master decided the complainant had waived his right to an account for the antecedent time. I think it is the fair inference, from the facts stated by the master, that for the period of about twelve years, the defen [582] dants received the wharfage (being in the nature of an incorporeal hereditament) by virtue of their several ownerships of v x the contiguous lots of land, without any idea of accountability t0 the complainant; and this too, with the knowledge of the latter : and he asserting no right Nor was there any fraud or attempt to conceal from him a knowledge of his rights. And there is no circumstance to show7, that any portion of-thc wharfage was received in trust for the complainant or deemed to be so received either by him or any of the defendants. The defendants must be looked upon as enjoying this income or revenue among themselves adversely to any rights of the complainant; and tacitly" by his consent and acquiescence. And in such cases, the rule appears to be well established in equity, that the party shall have no account beyond the filing of his bill: Dormer v. Fortescue, 3. Atk. 124; Pulleney v. Warren, 6. Ves. 72. and Pettiward v. Prescott, 7. Ib. 541. It has been followed in later cases: Edwards v. Morgan, 1. Mc Clel. 541. and 13. Price’s 782. N. S. on appeal í. Bligh’s N. S. 401 ; Bowes v. East London Water Works, 3. Mad. R. 375. This rule applies whenever there has been a mere adverse possession and the delay in asserting the right and calling for an account is attributable to a plaintiff’s own negligence or loches. If, however, there has been any fraud or wilful acts of the defendant or party in possession by wdiich the plaintiff has been prevented from calling for an account or from taking measures to establish his right, or if the person in possession is, confessedly, a trustee, guardian, bailiff or agent or (in the contemplation of this court) is to bo so regarded, then the rule just stated does not apply: because it would work injustice. In the last mentioned cases, it is the duty of the party receiving the rents or income to render accounts to his cestui que trust, ward or principal, as the case may be ; and he will be held to account from the period when the plaintiff’s title accrued, unless he can avail himself of the statute of limitations for his protection as to a portion of the time : Pearce v. Newlyn, 3. Mad. R. 186 Attorney General v. Corporation off Stafford, 1. Russ. 547. [583] The present case clearly falls within the principle of those which, without reference to the statute of limitations, restricts the right of the party to an account for the period of time subsequent to the filing of his bill. These defendants may have received money to which they were not legally or equitably entitled: but they have been suffered to take it upon the supposition of the same belonging to them; and this supposition was induced by the long acquiescence or remissness of the party, who now, for the first time, asserts a claim. The money may have been expended in a manner which it would not have been, had the defendants not supposed it to be their own; and there may be more hardship and injustice, from a variety of considerations, in compelling them to account and refund, than in leaving the negligent party to the consequences of his own remissness. I think the master decided correctly *, and his account must stand. I ani also inclined to say, that the complainant cannot have costs. Each party must bear their own costs of the suit.