Opinion
09-22-1893
YOUNG et al. v. YOUNG et al.
William H. Morrow and Louis H. Schenck, for complainants. Gilbert Collins and George M. Shipman, for defendants.
(Syllabus by the Court.)
Bill for specific performance of a land contract by Huldah B. Young, individually and as administratrix of the estate of Jacob Young, deceased, and Dorothea McCord, against Henry Young and others. Heard on pleadings and proofs. Conditional decree.
William H. Morrow and Louis H. Schenck, for complainants.
Gilbert Collins and George M. Shipman, for defendants.
PITNEY, V. C. This is a suit for specific performance. The allegations of the bill, as originally filed, are set out fully in the previous report of the case, found in 45 N. J. Eq. 27, 16 Atl. Rep. 921. They are, in brief, that Jacob Young, the husband of Mrs. Young and the father of Mrs. McCord, was the son of one Henry Young, and that Henry Young was the owner of a farm in Warren county, and that in 1849 he placed his son Jacob upon it, and told him that he should live upon it as long as he (the father) lived, and that he (Jacob) might make any improvements upon it he chose, and that he (Henry) would either will or deed it to him (Jacob) at his (Henry's) death; that Jacob in his lifetime, relying on this promise, made extensive and permanent improvements upon the farm at his own expense, with the knowledge and acquiescence of his father; that he died shortly before his father, and that his father failed to perform his promise, but in his lifetime, and after Jacob's death, made a voluntary conveyance of it to his two other sons,—Peter and William,—defendants herein, and also devised it to them by will. The equity of the case is that Jacob, in good faith and reliance upon his father's promise to give him the farm, expended his moneys in permanent improvements on the farm, so that it would work a fraud on the complainants, Dorothea McCord, the heir at law, and Huldah B. Young, the widow of Jacob, to permit the father and his two grantees and devisees, Peter and William Young, to refuse to perform the promise in question. After the demurrer to the bill as originally filed had been sustained, as reported, the complainants amended their bill by adding the personal representatives of Jacob Young, viz. Huldah B. Young, administratrix, as complainant, and Silas W. De Witt, administrator with her, as defendant, he declining to join as complainant. No answer was filed by De Witt. Complainants further amended by adding allegations in excuse of their laches in filing their bill, and the chancellor, after hearing counsel, held these allegations sufficient, and ordered the defendants to answer, which Peter and William Young have done, and the cause has been brought to hearing on the pleadings and proofs. The additional allegations found in the amendment are to the effect that shortly after the judgment in ejectment rendered in September, 1877, against the complainants in the Warren circuit in favor of the defendants referred to in the original bill, Mrs. Young consulted Mr. Sitgreaves, a solicitor of this court practicing at Phillipsburg, as to what further proceedings should be taken in behalf of the complainants with regard to recovering this land, and that he suggested that the parties should secure the advice and services of the late Mr. Vanatta, then practicing at Morristown; that Mrs. Young saw Mr. Vanatta, stated her case to him, and that he suggested that the facts should be got together in a proper manner by Mr. Sitgreaves, and submitted to him for further advice; that Sitgreaves undertook the work of collating the facts, but was taken sick and remained ill for some time, and died in March, 1878; that, after his death, Mrs. Young again consulted with Mr. Vanatta, and was by him advised to employ other local counsel, to wit, Mr. Dumont, of Phillipsburg, and that Mr. Dumunt was retained and relied upon; and that Mr. Vanatta died in April, 1879, and Mr. Dumont became ill and incapacitated, and did nothing. The bill further alleges that other suits and litigations arose between the parties, to wit, two suits were brought in the Warren circuit court against the defendants by Mrs. McCord,—one for false imprisonment, and the other for assault and battery,—and that these causes were subsequently tried, and verdicts rendered for the plaintiffs, and that further litigation ensued in the shape of rules to show cause and new trials, and the last of those causes was finally disposed of in April, 1884; further, that in 1881 complainants consulted other counsel as to their rights in the premises, and were advised by him that they should bring a suit at law, in the name of the administrator of Jacob Young, against the executors of Henry Young, for the value of the improvements placed on the farm, and that such suit was brought in October, 1881; that a demurrer was filed to one of the pleadings, and that it was brought to hearing and de cided in the year 1883 adversely to the plaintiffs; and the bill refers to the report of that case, viz. Young v. Young, 45 N. J. Law, 197. The bill further alleges that the complainants were advised by counsel that pending the progress of these various suits in the supreme court and in the Warren circuit court they should not press their suit for specific performance. The bill further alleges that in the year 1883 the complainants retained a certain counsel to do whatever was necessary to compel specific performance of the promise of Henry Young, and paid him for his services, and that that counsel frequently promised to commence the suit, but that in 1884 they discovered that he had neglected to do anything in the matter, and thereupon they sought the advice of other counsel, to wit, the one at present engaged for them, and finally succeeded in inducing him to proceed with the cause. Most of the allegations of the bill as amended are denied by the answer, and it sets up, in addition, that Jacob Young died insolvent, and that Henry Young was his security on a note for about $1,300 held by one Shoemaker, which Henry Young was obliged to pay; that by his will, dated April 12, 1870, made eight days after the death of Jacob, he left a legacy of $3,000 to the complainant Dorothea McCord, and that she had claimed and received payment of that legacy. The answer also sets up as a bar the sworn claim against the estate of Henry Young by Mrs. Young as administratrix for $3,276, being the cost of the various improvements put upon the farm by her husband in his lifetime, and which was the foundation of the suit in the supreme court before referred to; and it also sets up the insolvency proceedings in the settlement of the estate of Jacob Young in the Warren orphans' court, including an application to sell the lands of Jacob Young to pay his debts, with a schedule of those lands, which does not include the farm in question.
1. The first question is whether or not the excuse set up for the laches in bringing this suit was substantially proven at the hearing, and I come to the conclusion that it was so proven. It was shown that Mrs. Young and her daughter retained possession of the house in which the husband and father lived and was murdered, and that they attempted to get possession of the outbuildings. The result was that an action of trespass was commenced by Peter and William against them, or one of them, in the month of June, 1876, in the lifetime of Henry Young, the father. This suit was not pursued. Henry Young died in January, 1877, and shortly afterwards another action of trespass was brought by Peter and William against the complainant, and also an action of ejectment. That suit they defended onthe ground of adverse possession for more than 20 years by Jacob Young, whose estate at his death descended to the daughter, Dorothea, subject to the dower of the wife, Huldah. They failed in their defense by reason of proof offered at the trial that Jacob Young paid full rent annually to his father up to the day of his death. Shortly after that verdict was rendered they were turned out of possession; but they did not give up their claim to the farm, but looked for a new remedy. About that time they casually met Atty. (Jen. Stockton, who was attending the Warren circuit in the prosecution of the famous Freeholders' Conspiracy Cases, and he advised them that their remedy was by a bill in chancery. They then called upon Mr. Sitgreaves, as alleged in the bill, and he advised them to secure the advice and services of Mr. Vanatta, and then they came to Morristown, and saw him there, and also called upon him in New York. He advised them to continue the employment of Mr. Sitgreaves as local attorney to see the witnesses, get a statement of what they knew, and generally to get such a statement as counsel could give his opinion upon and advice about They relied upon Mr. Sitgreaves, but his illness and death, and the death of Mr. Vanatta, drove them to seek other counsel. In October, 1878, they also retained and paid Mr. Dumont, of Phillipsburg, to bring a chancery suit, but he fell ill, and did nothing. They then employed Mr. Lott, a young member of the Belvidere bar, to bring the actions in tort which were brought. They also called upon the elder Mr. Gummere at Trenton, laid their case before him, and he advised them to go to his son, who was then practicing in Newark. They went to him, and he advised an action at law, such as was brought and carried through successfully in Smith v. Smith, 28 N. J. Law, 208. Acting under his advice, the sworn claim was put in against the executors of Henry Young, and the action brought, with the result as reported in Young v. Young, 45 N. J. Law, 197. In the mean time it also appears that there was considerable litigation in the orphans' court of Warren county over a large claim presented against the estate of Jacob Young, which went to the prerogative court and is reported in Young v. Young, 32 N. J. Eq. 275. The action at law brought by the younger Mr. Gummere, which was decided at June term, 1883, was finally disposed of by a nonsuit at the pircuit at the fall term of that year. In the mean time, and prior to January, 1883, probably on the intimation by their counsel that the result in that case was doubtful, they had consulted Mr. Voorhees, of the Flemington bar, with regard to some remedy. Mr. Voorhees was their counsel in the trial of the actions of tort above referred to, and he, on the 23d of January, 1883, wrote them that he had consulted with the elder Mr Gummere, and that he advised a bill in chancery. This, be it observed, was before the decision of the suit at law. Mrs. McCord swears that on the 30th of January, 1883, she had an interview with Mr. Voorhees in which she retained him to bring that suit in chancery, and paid or secured to him on that account $250, included in a note for $400, which it is admitted she gave him on that day. She says that $150 of that was for services already rendered by Mr. Voorhees in the actions of tort before referred to, and that $250 was for the retainer in the proposed chancery suit. That note was subsequently paid by Mrs. McCord. Mr. Voorhees was called as a witness, and, by the aid of his docket and other memoranda, declared that nothing was included in that $400 note by way of retainer in the chancery suit Considerable evidence was given on one side and the other on that issue. I am satisfied, not only from my impressions at the time the evidence was given, but by a careful re-examination of it and scrutiny of all the documentary evidence on the subject, that Mrs. McCord is right, and that Mr. Voorhees was mistaken, simply. Either that, or there was a misunderstanding between them. I am satisfied that Mrs. McCord thought and believed that she had retained and paid Mr. Voorhees to bring the suit in chancery for her about this land. Mr. Voorhees may not have so understood it, or he may have forgotten it. It is a matter of no consequence, in this connection, how the misunderstanding or mistake arose. The only question here is whether or not Mrs. McCord was justified in relying on Mr. Voorhees bringing a chancery suit. I shall not give in detail here my reasons for coming to this conclusion, but will give them in writing separately, if counsel desire. Mr. Voorhees did not bring the suit, and, after a delay of a year or more, Mrs. McCord abandoned all hope of his doing so, and took further advice of Mr. Gummere, and looked about for somebody else to do it, and finally employed Mr. Schenck, who filed a bill as soon as he reasonably could, under the circumstances, after his retainer. I conclude, therefore, that the facts as alleged in the amendment are substantially proven, and that the laches of the complainants have been sufficiently excused; provided, of course, that the defendants have not in the mean time altered their position irretrievably, and have lost no serious advantage by the death of witnesses. Now, notwithstanding this proof, and what I must accept as the decision of the chancellor, that the allegations of the amendment were sufficient to excuse the laches, a spirited and forcible argument was addressed to me, which in effect attacked the decision of the chancellor, and denied the sufficiency of the facts to excuse the laches. This argument however, has not created a doubt in my mind as to the correctness of the chancellor'sdecision. The complainants never abandoned the idea of recovering the farm, and they never rested in their efforts in that direction. The sickness and death of Messrs. Sitgreaves, Vanatta, and Dumont caused a delay for which they were not responsible. After their death they went to Mr. Gummere, and under his advice the abortive action at law was brought, which occupied about three years; and then, again, came his advice as to a suit in chancery, and they at once acted upon it by employing counsel to bring it They seem to have been prompt to seek counsel, and equally prompt to act upon counsel's advice The case was a difficult one, the facts not easily collated and presented to counsel. The advice they received was not always the same, but, whatever it was, they acted promptly upon it They visited their counsel frequently, and furnished them with written statements of the evidence, and seem to have been urging on the suits as fast as they could. I omitted in the proper place to say that at one time they placed their case in the hands of Mr. Buchanan, of Trenton, who held it for some time, and then declined to prosecute it They are quite free of the charge of waiting to see whether the enforcement of the contract would or would not be profitable to them before bringing their suit and it is against that sort of delay that the wholesome rule of promptness is principally directed, as was shown by Chancellor Zabriskie in Merritt v. Brown, 19 N. J. Eq. 286, at page 293. They were advised by Mr. Voorhees, while he had the matter in charge, that they had 20 years in which to bring their suit, and need not hurry. That advice, though probably erroneous as applied to the particular facts of this case, was, as I suppose, founded on the notion that Mrs. McCord's position was that of a person who had paid full consideration for her purchase, so that the title was vested in equity, and had made valuable improvements upon the strength of it, and that the person in possession under the legal title was, in equity, a mere trespasser and without merit, and not entitled, in coming to this court, to invoke the rule of promptness which prevails in the ordinary suit for specific performance. However, the complainants did not act upon that advice, but urged their suit to be brought without delay. There was no allegation or proof that any considerable improvements had been put upon the farm by the defendants since the death of Henry Young, and no counter equity arises in favor of the defendants on that score. The matter of the death of witnesses I will refer to further on. My conclusion upon the question of laches is that if it be established by the proofs that Henry Young did encourage his son Jacob to make improvements upon this farm by a promise to him that he would give it to him at his death as a proper share of his estate, and Jacob did make substantial and considerable Improvements on the strength of it then the equity of his heir at law to have the benefit of that promise has not been lost by the lapse of time, and that the delay in bringing the suit is accounted for by the circumstances before mentioned.
2. The next question is whether the promise was made, in effect, as alleged by the bill. The evidence of Mrs. Young is to the effect that shortly after her marriage with Jacob, when Henry and Jacob were negotiating about Jacob's occupancy of this farm, Henry told her and her husband that he had bought this farm for them; that they should move on to it, and fix it up, and they should always have a good home there; and that when they were moving onto the premises the condition of the house was spoken or, and it was said that the roof leaked, and that Jacob remarked that it would have to have a new roof, and that Henry said, "Your wife has got money, and you take that and use it here, and fix it to suit yourself, for I will leave it to you, by will or deed, as your own." And she says, further, that as years went on, and Jacob did make improvements and additions to the farm, she thought he ought to have a deed at once, and found fault that he did not, and that she spoke to Mr. Henry Young about it in her husband's presence, and Mr. Henry Young said, "You needn't be troubled about that, for the farm I am going to give to Jacob, and you have the benefit of that," (meaning the improvements;) and she says she often spoke in that strain to him, and he always replied the same; and that she rested satisfied because he said he would give them the property, and would will it to them or deed it to them. Further, she says that she understood, some years before her husband's death, that his father had made a will giving her husband this farm; that Mr. Henry Young so told them. Mrs. McCord swears that, when she was a girl, living at home, she on several occasions had conversations with her grandfather, and heard conversations, in which he said that her mother, Huldah, was finding fault that her father, Jacob, was putting his money into the farm, and he stated that the farm was for her father and mother, and all they put on it was for their benefit She says, as a matter of fact, her mother was frequently scolding her father for using so much money in making repairs upon the farm and buildings, and that they had no deed for it; that her grandfather thought that her mother ought not to scold about using the money, or to express any dissatisfaction, using this language: "Your mother seems to be always finding fault at what your father is doing in putting his money into the farm. That farm is for your father and mother, and all they put on it is for your benefit." She also heard her grandfather say that he bought the farm for her father and mother. And on another occaslon,about two years before her father's death, and after her marriage, she was riding with her grandfather to Easton, and the matter was mentioned that, in repairing the house, the doorstep had been so left that the water, in a storm, ran into the house, and that her grandfather said, if that doorstep belonged to him, he would have the carpenter take it out, so that the water couldn't go into the house. Several witnesses swear to declarations by Henry Young that he intended the farm occupied by Jacob for him. Benjamin Hoff swears that he lived in the neighborhood of the parties, and had been one of several heirs of a farm in that neighborhood which had been divided among them, and that on one occasion, shortly before the death of Jacob, he had a conversation with Henry Young, in which Mr. Young asked him how the Hoff heirs had divided their land, and, after being told by Mr. Hoff, he (Young) remarkel: "This farm here [alluding to Jacob's farm] I intend Jacob to have, but not until after I am done with it, and all the improvements they are putting on to it they are putting on for themselves." This witness impressed me as reliable. Reuben Glass swears that he was at one time working, making some repairs for Jacob on the buildings on the place, and that Henry Young came there while he was doing it, and said, "Jacob is doing a good deal of work here. Are you getting any pay?" and the witness said "Yes." He said, "Who pays you?" He said, "Jacob," and Henry said, "You must look to him for all you do. I don't pay any bills here. It belongs to Jake." Jacob Petty swears that after the death of Jacob he had a conversation with Henry Young in which he spoke of Jacob's putting improvements on the farm,—addition to the house, planting an orchard, and so forth,—and Henry said that he told Jacob to put on the farm whatever he wanted to, for he supposed that it would be his some day. William A. Howell, a neighbor of the parties, whose appearance and manner lead me to rely upon his evidence, testified that somewhere along in '54 or '55, about five years after Jacob moved on to the place, he (the witness) had been at Jacob's house, and was going home in a carriage, when he met Henry Young in the road near Jacob's, stopped, and fell into a conversation with him, and that the witness remarked, "Jacob is making considerable improvements down there," (referring to the farm.) "Yes," Henry said, "I told him and his wife they might use their own money, and fix it up to suit themselves, for it is to be theirs after my death." The witness said there had been considerable repairs made on the inside and outside of the house, and those repairs were the occasion of this remark. The same witness further stated that the old gentleman said that the upper farm, where he lived, was intended for William and Peter, and the lower farm, where Jacob lived, was intended for him. Mrs. Anna Jones, a deceased witness, was sworn in the ejectment suit, and there testified as follows: That she was visiting Henry Young, who was her uncle; that he showed her the homestead farm, where he lived with his sons William and Peter, and then said, "Now we will walk down to where Jacob lives," and also said, "Huldah, Jacob's wife, found fault with their money being spent here, but I told her I have given the farm to Jacob; that it is all safe, and right, and they are getting the good of it,"—or words to that effect There are several other witnesses who testified to declarations by Henry Young that he had given the farm to Jacob, but those declarations were unaccompanied by any reference to the improvements put upon it by Jacob. Then we have the well-established fact that Henry Young, on the 6th of February, 1873, made a will by which he devised the farm where he lived, containing about 175 acres, and being double in value that in question here, to his sons Peter and William, and the farm here in question to Jacob, and gave to his daughter—his fourth child—certain securities which he held against her, which represented the price of a farm which he had previously purchased and given to her. That this was an equitable division of his property abundantly appeared from the evidence, and was not disputed.
The evidence, then, may be summed up in the fact that he stated to several persons, during the course of Jacob's occupancy of this farm, that he intended to give it to Jacob, or had given it to Jacob; that he stated to two or three persons, other than the parties hereto, that the improvements which Jacob was putting on at his own expense would inure to his (Jacob's) own benefit, because he (Henry) intended to give him the farm, and had so told him; and then we have the testimony of the two complainants, corroborated by the other witnesses, that he told Jacob that he might with safety make whatever improvements he chose upon the farm, because he should have it after his death. With regard to the reliability of this evidence, the manner of the witnesses on the stand led me to credit them, and I credit the two complainants the more readily because the temptation to falsify was great, and the ease with which they could have sworn to more specific and numerous declarations by Henry Young, without fear of contradiction, was apparent, so that I feel constrained to believe that they were swearing only to what they actually remembered. Then we have the long-continued occupation of the farm by Jacob, and the fact, to be referred to further on, that he did, in point of fact, make improvements on the farm to a considerable extent, such as an ordinary tenant would not make. I come, then, to the conclusion that the deceased did say, in effect, to his son Jacob, that he would be safe in making any improvements on thefarm which he saw fit to make, for he
(Henry) would give the property to him at his death; that he saw and knew of the improvements which Jacob made as hereinafter stated, and must have known that they were made on the strength of his promise. This promise, so proven, was criticised by defendants' counsel as not sufficiently precise, and as wanting in consideration. There is no uncertainty in the promise itself. It is to give the title, either by will or deed; and the connection in which the word "deed" was used shows that by its use was meant a conveyance in the nature of a testamentary disposition, and hence the promise was to secure the title of the farm to the son at the death of the father. With regard to the consideration, it is not necessary, in my judgment, in this class of cases, to show the precise consideration agreed upon. The learning upon that subject applies to the ordinary contracts of bargain and sale, where a present consideration moves from one party to the other, but has no application to the class of cases of which the present is an example. The consideration, however, as plainly expressed, or certainly implied from the circumstances, was that the son was to live on the farm, and farm it as the tenant of the father, paying him rent. The amount of the rent was apparently not mentioned, and so we may infer that it was such as the landlord should demand. As that part of the arrangement was fully performed by the son to the satisfaction of the father, it cannot now be impugned for uncertainty. It has been so far executed, and the execution accepted by the party, that the party accepting it cannot now say it was not sufficient. But the real consideration upon which the son's equity rests was the improvements put upon the property by him, with his father's permission and knowledge. The latter said: "Go on and spend your money on this farm, and improve it to suit yourself." Here it is manifest that the character and extent of the improvements were not intended to be fixed, and equally manifest that it was not essential to the validity of the contract that they 'should be fixed. All that matter was loft to the pleasure and fancy of the son. The consideration required by the law is found in the actual expenditure by the son of moneys on the strength of the father's promise, and the detriment which the son will suffer if the promise is not performed.
3. The next question is whether the improvements were made, and to such an extent and of such a character as would render it inequitable for the promisor to recede from his promise. The evidence on this subject consists of the testimony of Mrs. Young and of divers witnesses, principally mechanics who did work upon the place and material men who furnished materials, and of receipted bills for materials and work. That improvements to a large extent were actually put upon the farm is an undisputed fact The house was raised from one and a half stories to two stories in height, in about 1854; a new barn was built, at considerable expense, in 1858; a new wagon house and corncrib combined; a summer or out kitchen was built outright and a considerable addition put to a small tenant house that stood on the premises; a house was built over the spring, and over the tub-power or machine room; the houses and buildings were painted from time to time; a new garden dooryard fence built; two new piazzas put to the house; new doors cut in it; new windows; new roofs put on some of the buildings; and a new separate corncrib built. The materials used were stone, brick, cement, slate, tin, roofing leaders, and lumber. The bills produced cover items for these different materials. The house was papered, and painted inside and out, and a new outside cellar way built with cover over it and the covering, proving to be not durable, was rebuilt These improvements extended over a period of more than twenty years, a considerable portion of them being made within three years before the death of Jacob, and after the making of the will of 1873. The first work done was painting the woodwork of the house and papering the rooms, and building the machine house over the tub-power. The cost of the latter was about $40. About 1852 the outside cellar door was moved from where it was to the kitchen part of the house, and a back stoop, 12 by 15 feet, was built over it, with a pantry in it. A cellar area way, with doors over it, was built. This was done by Jacob Carhart. A covering over the cellar way was afterwards rebuilt by Jacob Reed, shortly before the death of Jacob Young. A new apple orchard was set out about 1850. A paling fence was built around the garden and yard, and painted. The proofs seem to be clear that all this was done at the expense of Jacob. A new summer or out kitchen was built in 1860, with a chimney, a bake oven, and a cistern under it. In 1875 this out kitchen was repaired and improved, and a slate roof put on the wagon house and on the spring house. A piazza with a tin roof was built on the east side of the house in '56 or '57, at a cost of over $50; also, a sash door built and hung that cost over $10. A new door was cut through the south side of the house, and a porch was built over it; the tenant house was raised, an addition put upon it, and a hew foundation under it, about the year 1874 or 1875. The labor alone of doing this came to over $50; the lumber, material, and slating for the roof amounted to considerable more. The sills of the buildings were cut in the woods and hewn; the principal part of the lumber was bought from the lumber yard and sawmill. The building of a pig house was another item of expense. The proofs satisfy me that all of this work, except the raising of the house and building of the barn, wagon house, and corncrib, were paid for by Jacob Young. As to those itemsthe evidence is conflicting. Mrs. Young swears, in effect, that Jacob borrowed money of his father to do that work, and that he afterwards paid it back to him; and she swears to some declarations made by the father to the son, which are relied upon as proof that the father admitted that the son had repaid him these moneys. On the other hand, the evidence of Peter and William Young, and some of the mechanics who worked upon these two large jobs, prove that the work was done on the order of Henry, and paid for by him. This evidence is particularly strong as to the barn. And, on the other hand, there are bills and receipts for lumber paid by Jacob at the time the barn was built, which indicate that a part, at least, of the lumber was paid for by him. The general result of the evidence tends to raise a suspicion that the father built the barn for the benefit of the son and the farm, but that he limited the amount of money which he was putting in it to a certain sum, and that the balance was made up by the sou. At any rate, I am satisfied that the son did contribute considerable towards the expense of the barn. With regard to the vertical addition to the house, the evidence leaves my mind in considerable doubt. There are bills to a considerable amount made out to and paid for by the son for materials which were bought about the time the house was altered, but Mrs. Young swears that Mr. Young did furnish considerable part of the money that was used to pay for that alteration. Giving the defendants the benefit of the supposition that the evidence which may have been lost between the death of Jacob and the commencement of this suit would have been in favor of their contention, I shall treat the alterations now in question, viz. the vertical addition to the house, the new barn, combined wagon house and corn-crib, as having been made substantially by the father, with some contribution by the son. This leaves this part of the complainants' case to rest upon the other improvements and additions made, viz. the addition to the tenant house, the out kitchen, oven, and water cistern, the new outside cellar way, doors, porches, pantries, the separate corncrib, smoke house, machine house, garden fence, pig house, and the painting of the buildings from time to time. The bills and receipts for materials and labor produced, running from 1849 to 1875, amount to $844.73, and, in addition to this, there was proof of a large amount of payments for which no vouchers were taken. Several answers were made to this array of proof. In the first place, it was said that some of it was for fencing timber,—ordinary field fencing timber—and the defendants swear that Jacob was allowed for that in his annual settlements of rent to his father. But this would account for but a small portion of the bills. In the next place, it was alleged that, a year or two before he died, he undertook to help a neighbor build a house, and that he bought some of this lumber for that purpose. I think the proofs fail to show that it went in that direction. On the contrary, the evidence is that about that time he was milking some considerable additions to and improvements of his own dwelling house, tenant house and out kitchen. The defendants also swore, in a general way, that he used to bring in the bills for these repairs against his rent; but I am not willing to give much weight to their evidence in this direction. Their manner on the witness stand was not satisfactory, and what evidence was given on this point was of the most general and uncircumstantial character, and it is inconsistent with the declarations of Henry, proven by several disinterested witnesses whose evidence I feel constrained to believe, that Jacob was making improvements on his own account on the premises. Then, again, the character of the improvements winch Jacob made—the porches, etc., built to the house, and the out kitchen and the tenant house—were not of such a character as a landlord would be likely to allow his tenant. Another suggestion by defendants' counsel was that they were merely such repairs as a tenant would make for his own convenience. I am unable to adopt that view. They were much more expensive than any mere tenant of a farm of that size and value would be willing to make on his own account; but, on the contrary, they indicate that the person making them was, or expected to be, the owner of the premises. They could not have been made as a sort of compensation by an occupant not paying rent, as in Ackerman v. Ackerman, 24 N. J. Eq. 315, at page 317, for the proof was clear that Jacob paid full rent for the premises, either in cash or kind, up to the day of his death. I conclude, then, that Jacob did make additions and improvements on this property under the promise of his father, to a considerable extent, probably not less than $1,500, without including either the vertical addition to the house or the new barn.
4. The next question is whether any conduct on the part of the complainants, or either of them, in respect to any of the matters set up in defense, has the effect to bar the complainants' rights. The action of Mrs. Huldah B. Young in putting in the sworn claim, as administratrix, for all these improvements against the estate of Henry; the bringing suit thereon; the omission of this farm from the list of the lands of which Jacob died seised, on the application to the orphans' court for leave to sell lands to pay debts,—relied upon by the defendants,— cannot operate as a bar to the equity of Mrs. McCord, who is the heir at law; and I doubt if they can at all affect Mrs. Young's right. It seems to me that the fact that they were defeated in their attempt to recover compensation for the improvements put upon this farm, not on the merits, but by the interpositionof the statute of limitations, strengthens, rather than weakens, their equitable standing in their present attempt. It shows that they have no remedy at law, and that the expense of the improvements put upon the farm by Jacob Young must be forever lost to his heir at law unless a remedy in this court is found for her; and the fact that they were so defeated is due entirely to the plea interposed by the defendants therein, as executors of their father's estate. It was in their power to permit the question of the amount of the value of these improvements to be ascertained by judicial proceeding, and then to pay it, Instead of that they set up the technical defense of the statute of limitations, which enabled them at law to retain the premises without paying for the improvements. With regard to the rights of the creditors of Jacob Young, it is certain that the complainants sought, by defending the title in the action of ejectment, to have the property established as the property of Jacob Young, and, if they had succeeded, of course his creditors would have taken it The creditors had, presumably, notice of that suit, and were at liberty to watch it, and to learn all the facts which were developed thereby, and they were at liberty themselves to institute proceedings, as they might be advised, to have that farm declared to be the property of Jacob Young. No act done or omitted on the part of Dorothea McCord has obstructed them in their rights in that behalf. Besides, it does not concern the defendants whether the creditors' rights have been ignored or not. The demand and receipt by Dorothea of her legacy for $3,000 was, however, an explicit determination by her to take under the will of her grandfather, and, if she did that, she could not, at the same time, claim this farm, because thereby she disturbed the provisions of the will; and the serious question is whether that determination by her is to be treated as a final election by her between her claim to the farm under her father's equitable title and her claim to the legacy under her grandfather's will, so that she shall not be permitted to retract it, return the money with interest, and take the farm instead. The authorities seem to concur in holding that in order to make the enforcement of one demand which is inconsistent with another a final and binding election to take that, and not the other, the party must either be shown to have acted advisedly, with a proper knowledge of all the circumstances, and with a consciousness of the effect of the act relied upon, or the party adversely interested must have so changed his position in reliance upon such action that it would be inequitable to permit the party who has the choice to recede from his former action. Chancellor Vroom, in English v. English, 3 N. J. Eq. at page 509, uses this language: "What acts of acceptance or acquiescence are sufficient to constitute an election cannot be designated with sufficient precision to justify a general rule. Each case, as it occurs, must be governed by its own peculiar circumstances. The general questions are whether the parties acting or acquiescing were cognizant of their rights, whether they intended to make an election, whether they can restore the individuals affected by their claim to the same situation as if the acts had never been performed, or whether these inquiries are precluded by lapse of time." In the same direction is what was said by Chancellor Rtmyon in Macknet v. Macknet, 29 N. J. Eq. 57, 58. He there cites with approbation the case of Wake v. Wake, 1 Ves. Jr. 335, in which he states as follows: "A widow, after having received a legacy, and for three years an annuity, between which legacy and annuity and her dower she was bound to elect, filed her bill for her dower. It was held by Buller, J., sitting for the lord chancellor, that the receipt of the annuity for three years, and the legacy, did not prevent her right of election, she being presumed not to have acted with full knowledge which would bind her. 'The point is,' said he, 'whether she had full knowledge of the circumstances of the testator and of her own rights. If she had acted with full knowledge, she should not afterwards deny it, but after three years, only, 1 cannot say she is not entitled.'" In Anderson's Appeal, 36 Pa. St. 476, a widow had accepted several payments on account of interest on a fund left to her by her husband's will, and was allowed, notwithstanding that, to recede, and claim her dower, upon a return of the money she had received. At page 496, Judge Read says: "An election by matter in pais can only be determined by plain and unequivocal acts, under a full knowledge of all the circumstances and of the party's rights." And see 2 Jarm. Wills, p. 40, and note 19 of Mr. Randolph. In looking at the cases it must be borne in mind that elections by widows between dower and benefits under a will are in this and most other states regulated by statute. Another consideration is that the doctrine of election is one resulting not in forfeiture, but compensation, so that a party claiming under a will shall not claim against that will except upon condition of compensation for whatever he may have claimed under the will. In other words, he is permitted, after having claimed under a will, to claim against the will, if, out of the claim against the will, he will make compensation for what he has claimed under the will. This seems now to be the established doctrine. 2 Jarm. Wills, p. 1; Noys v. Mordaunt 1 White & T. Lead. Cas. Eq. (4th Ed.) 543. That principle, applied here, would permit Mrs. McCord to claim this land, notwithstanding having received the legacy, provided she will return the legacy, with interest The evidence shows that Mrs. McCord acted at all times under the advice of counsel, that she had a great many different counsel, and that theyadvised her diversely; and it does not appear that the question was ever presented to her mind that she was electing between the legacy and the demand for the farm. On the contrary, it appears that before the last payment was made upon the legacy she was advising with counsel from time to time about recovering the farm by filing a bill in equity; and it does not appear that any counsel called her attention to the effect of collecting the legacy, or that she was aware of it As before remarked, it does not appear that the defendants have made any improvements on the farm, or in any wise altered their position except in the payment of the legacy. Upon the whole I am satisfied the complainant Mrs. McCord never did elect to take the legacy instead of the farm, and therefore I hold the receipt of the legacy not a bar. But of course Mrs. McCord cannot have the farm without repaying the legacy, with interest So with regard to the surety money of about $1,300, paid by Henry Young, for his son Jacob, to Mrs. Shoemaker. That was not set up as a bar in the answer, and in fact was added by way of amendment, and cannot affect the complainant's right to recover, but only the terms upon which she shall be permitted to recover. I conclude, then, that the complainants are not barred.
5. The next question relates to the terms upon which the complainants are entitled to relief, and here we come to the difficult part of the case. A part of it, however, as before remarked, is very clear. Complainants can only have the farm upon the terms of repaying to the personal representatives of Henry Young, who are the defendants herein, the amount he paid to Mrs. Shoemaker as surety for Jacob Young, with interest from the time of payment, less the dividends received from the estate of Jacob. Next, they must repay to the defendants the amount of the legacy of $3,000, with interest upon the several payments from the time they were made. This brings me to the question of rents and profits. The complainants demand rents and profits substantially from the time of the death of Henry, because, although they bad possession of the house for eighteen months afterwards, Henry Young had possession of the farm from the time of the death of Jacob, which was April, 1876, and Henry died January, 1877, and the defendants had possession from that time on. I think that the complainants, by their conduct, have barred themselves from any demand for rents and profits up to the time of the filing of this bill. Up to that time their attitude was that of demanding the legacy, for it was inconsistent with the possession of the farm, and part of the time Mrs. Young was suing for the value of these improvements in a court of law. It was suggested by complainants' counsel that the difficulty in taking an account at this late day of the rents and profits during that period could be got over by fixing a rental value. But that might do injustice to the defendants. Believing, and having every reason to believe, that the farm was theirs absolutely, they may not have used it in the same way they would have done under other circumstances. They may not have derived any pecuniary profit from it whatever, and to fix a rental value and charge them with that might do them great injustice. Since the filing of the bill, however, I think there should be an account of the rents and profits. The delay that has occurred in the progress of this suit has been mainly due to the demurrer filed by the defendants, which was without any intrinsic merit. The benefit of the laches could have been set up by the answer, the case might have been tried long ago, and decision had; and, further, they had notice by the bill that they were liable to be called upon for rents and profits. There is an item of the value of certain wood and timber cut and sold from the premises by the defendants, and also an item of money received by them for a right of way across the land. The complainants are entitled to an account of those. In coming to this conclusion I am aware that the result may be a substantial defeat for the complainants, for the reason that it is not probable the farm is worth taking upon these terms; but I cannot allow that circumstance to influence me. If the complainants shall elect to redeem upon the terms above stated, and shall finally do so, they will be entitled to costs. If, however, they shall elect not to redeem, or shall not finally redeem, the bill shall be dismissed, with costs. I cannot dismiss this case without an expression of regret at the long and varied litigation which has arisen between the parties. The complainant Mrs. Young, after having lived for 27 years on the premises, and treated it as her home and as her husband's property, and the daughter, Mrs. McCord, after having been born and bred there, naturally felt chagrined at being ejected from it, and clung with unfailing tenacity to the idea of recovering it, and the granddaughter was treated with great harshness, apparently, by her uncles, so much so that two juries of the county gave large damages in her favor against them. This treatment engendered not only bitter feelings, but a desire for litigation, which has resulted in great pecuniary loss to both parties.