Goldmann, Freund and Conford. The opinion of the court was delivered by Conford, J.A.D.
[50 NJSuper Page 160] Plaintiff brought this action for the partition of a leasehold estate held by herself and her
brother, defendant's intestate, as tenants in common of a certain dwelling in Ocean Grove and for an accounting. The leasehold was for a term of 99 years, renewable perpetually. See Brown v. Havens , 17 N.J. Super. 235 (Ch. Div. 1952). The demand for accounting is based partly upon expenditures made by plaintiff for the maintenance of the property involved and for the discharge of a mortgage lien thereon, and partly upon the asserted obligation of the decedent under an agreement claimed to have been made by the brother and sister during their mother's lifetime whereby they would contribute equally to her support and maintain her in the premises which are the subject matter of the demanded partition.
The judgment entered in the Chancery Division (a) ordered partition by sale of the premises; (b) awarded to plaintiff a lien on the proceeds of sale in the sum of $3,696.79, representing the excess of payments by the plaintiff until December 1, 1951 for maintenance and mortgage indebtedness over receipts of room rentals from the property; (c) allowed each party taxed costs and a counsel fee of $1,500, to be paid from the proceeds; (d) directed the payment of the balance in equal one-half shares to the parties; and (e) adjudicated the liability of the estate of the intestate brother to the plaintiff in the sum of $4,120.72 on the alleged agreement for maintenance of the mother. The defendant is appealing the adjudication last mentioned. The plaintiff cross-appeals the allowance of counsel fees and the disallowance by the trial court, in assessing defendant's liability in the accounting for maintenance expenses, of any contribution by defendant for the period of time subsequent to December 1, 1951, when the decedent left the common household of the parties in the premises and made his home in Washington, D.C.
Prior to 1944 the mother of the plaintiff and of the decedent brother, Herbert G. Moore, held title to the leasehold and lived in the property with her son, deriving some income from the rental of rooms in the summers. Plaintiff was a widow, with money of her own. Herbert was a young
and impecunious young man. In May 1944 Herbert went into the armed forces, and plaintiff came to live with and keep house for her mother, whose ability to care for herself had apparently begun to decline. The mother soon after executed an assignment of the leasehold to her children, as tenants in common.
Herbert was discharged from the armed forces in 1945 and returned home. Plaintiff outfitted him with clothes when he left the army and furnished him moderate sums of money from time to time. She advanced substantially all the funds needed to run the household and paid the maintenance charges on the property, being partially recompensed by the receipts from summer room rentals. In 1944 she paid off a $2,500 mortgage on the property and accrued arrears of interest.
In December 1951 Herbert voluntarily left home to live in Washington and was married there in 1952 to the defendant. The mother died in July 1954 and Herbert the following month. Defendant subsequently qualified as administratrix of his estate.
We first consider plaintiff's appeal from the determination of the trial court precluding any enforcement of contribution from the defendant for such expenses of maintaining the real estate as taxes, insurance premiums, necessary repairs, etc., to the extent that they accrued subsequent to the deceased cotenant's departure from the home on December 1, 1951. There is no dispute as to the amounts or allowability of individual items, as such, but only as to the principle of disallowance because of accrual at a time when the decedent was not in possession. This ruling was expressly rested on the statement by the court in Mastbaum v. Mastbaum , 126 N.J. Eq. 366, 373 (Ch. 1939), to the effect that: "A tenant in common who is in sole possession of the common property, is under a duty to his cotenants to preserve the property by making needful, ordinary
repairs, and paying taxes, mortgage interest and insurance premiums." Finding that plaintiff was "sole cotenant in possession" after December 1, 1951, the trial court in the present case read the quoted language in Mastbaum literally to require the result that plaintiff was obliged to assume all the maintenance charges of the property during that period without any allowance in the final partition settlement by way of ratable contribution from her cotenant. We are constrained to the view that the holding in Mastbaum does not call for this result; that it is not supported by the applicable authorities considered as a whole; and that the equities require that defendant be held accountable out of her share of the proceeds of the partition sale for intestate's ratable share of the maintenance expenses accruing after, as well as prior to, December 1, 1951.
It will be convenient first to consider the general liability of one cotenant to another for a ratable share of maintenance expenses advanced by the latter for the preservation of the common estate; and then to determine whether such accountability is affected by the possession, use or enjoyment of the property by the cotenant seeking the accounting.
While there may have been some doubt whether the early common law, as a general rule, allowed affirmative recovery in favor of a cotenant who expended more than his ratable share either for necessary repairs, taxes or other carrying charges, he was clearly not without remedy. Historically, the basis of such relief was equitable, grounded in the general equitable principle of contribution between joint obligors. See 4 Pomeroy, Equity Jurisprudence (5 th ed. 1941), § 1418, p. 1071; 2 American Law of Property (1952), § 6.17, p. 74; 4 Kent's Comm. 370, 371 (1832); Freeman, Cotenancy and Partition (1874), § 322, p. 377. According to the latter authority, it was necessary for the plaintiff to show that he had "removed a common burthen from the shoulders of himself and the defendant, and that they are each benefitted by it." Ibid. But this did not mean recovery in all cases. It depended largely on the nature of the expenditure.
In the case of removal of paramount liens and clouds on the title the disbursing tenant could not have affirmative recovery (except through the doctrine of subrogation if the defendant were personally liable on the underlying debt, Troy v. Protestant Episcopal Church , 174 Ala. 380, 56 So. 982 (Sup. Ct. 1911); 2 American Law of Property, op. cit., supra , § 617, p. 76; Annotation , 48 A.L.R. 2 d 1305, 1309 (1956)), since the lien might exceed the value of the property interest of the tenant sought to be held accountable, Freeman, op. cit., supra , § 263, pp. 320, 321. It is clear, however, that the cotenant discharging a lien obtained a lien of his own upon the property for the excess of the payment over his ratable share of the indebtedness, recoverable in an accounting for rents and profits or upon final adjustment between the parties in partition. Freeman and 2 American Law of Property , both ubi cit., supra.
As to necessary repairs or improvements, at common law there apparently was no affirmative relief by way of compensation for repairs already made, but only a writ (de reparatione facienda) to compel the other cotenant to join in the making of the repairs before they were undertaken. Woolston v. Pullen , 88 N.J. Eq. 35, 38 (Ch. 1917); Freeman, op. cit., supra , § 261, p. 317; 2 American Law of Property, op. cit., supra , § 618, p. 77 et seq. However, the cases uniformly allow claims for repairs to be set off in final accounting between the parties or in partition. Ibid. We need not consider here whether the amount allowable for improvements is to be based upon the actual sums expended or the increased value of the property, the distinction not having been argued. Compare 2 American Law of Property, op. cit., supra , § 6.18, pp. 82-84, Hall v. Piddock , 21 N.J. Eq. 311, 316 (Ch. 1871), with Ross v. Ross , 35 N.J. ...