
    John A. Collins, Respondent, v. George K. Collins and Others, Appellants, Impleaded with Eliza Collins, Defendant.
    
      Tenants in common —when one is chargeable by his co-tenant with use and occupation— commissions on rents collected by a tenant in common — animal rests — rule of liability where a person has been guilty of constructive, rather than actual fraud.
    
    In August, 1853, John Collins died intestate, leaving a widow, Mary A. Collins, aged forty years; George K. Collins, aged sixteen years; John A. Collins, aged eight years, and Frank Collins, aged three years, as his only heirs at law and next of kin. In the same year the widow was appointed administratrix, hut no general guardian was appointed for any of the infants. At his death John Collins owned certain real property known as the Collins block, which was incumbered by a mortgage for §2,400, and after his death the widow and sons resided in that building and together managed the property until 1862, when the mortgage was foreclosed, by the inducement of George K. Collins, one of the defendants, who purchased the property at the foreclosure sale for §210 and gave a mortgage thereon for §2,400. In the same year John A. Collins married and took up his residence in the block, and continued to reside there, paying.no rent for the rooms which he occupied, and being supported in great part from the rents and profits of the building, which were received by his mother. In 1873 Frank Collins became of full age and conveyed his interest in the premises and in the rents and profits to George K. Collins for §8,000.
    In 1887 John A. Collins, having then first learned that George K. Collins claimed to be sole owner of the premises, began an action to set aside the foreclosure and to recover his share of the rents and profits collected by George K. Collins and his mother, in which action an interlocutory judgment was entered by which it was adjudged that the foreclosure was induced by the defendant George K. Collins, and that his purchase of the premises was in fraud of the rights of his brothers, and that an accounting should be had of the rents and profits, of which the plaintiff was entitled to recover two-ninths, the widow three-ninths, and George K. Collins four-ninths.
    
      Held, that while as a general rule one tenant in common could not charge his co-tenant for use and occupation, the referee in this case properly charged the plaintiff for the rent of the rooms which he occupied, as well as for supplies furnished to the plaintiff and his family by Ms mother:
    That the plaintiff was also properly charged with two-ninths of the amount to which the mother was found to be entitled for collecting that part of the rents of the building which she had collected;
    That, under the circumstances; the accounts were properly stated without annual rests, and that the defendant George K. Collins was not chargeable with interest upon the balances in his hands;
    That George K. Collins had been guilty of constructive, rather than intended, fraud, and that the principles applicable to an accounting by a trustee, who has in his hands a definite or ascertainable fund, the income of which it is his duty to invest and pay over, were inapplicable.
    Appeal by the defendants, George K. Collins and others, from an order of the Supreme Court, made at the Oneida Special Term and entered in the office of the clerk of the county of Onondaga on the 19tli day of February, 1896, setting aside and vacating the report of a referee appointed under an interlocutory judgment, and appointing a referee to take and state the accounts between the parties.
    August 15, 1853, John Collins died intestate, leaving Mary A. Collins, widow, aged forty years (born January 31,1813), George K. Collins, aged sixteen years (born April 15, 1837), John A. Collins, aged eight years (born July 17,1845), and Frank Collins, aged three years (born in 1850), sons, his only heirs and next of kin. September 1,1853, the widow was appointed administratrix of his estate, but no general guardian was appointed for any one of the sons.
    At his death John Collins was the owner of certain real estate in . the city of Syracuse on which there was an unfinished brick building, known as the Collins Block, which was incumbered by a mortgage for $2,400. The personal estate of the intestate was not more than sufficient to pay his funeral expenses and unsecured debts. Immediately after his death his widow and his sons took up their residence in the building, and she, with their assistance, managed it until 1862, at which time George IL Collins was twenty-five years of age, John A. Collins seventeen years of age, and Frank Collins twelve years of age. On the 31st of May, 1862, this property was sold upon a statutory foreclosure of the mortgage given by the intestate, and was bid off by George K. Collins for the amount due thereon, with costs. He paid $210 and gave a mortgage thereon for $2,400.
    February 18, 1862, John A. Collins, the plaintiff, when sixteen years of age, married, and immediately thereafter took up his residence in the block, and within a few years two children were born. From that time to the present he and his family have continually resided in the block, paying no rent for the rooms occupied, and during a considerable portion of the time, they have been supported in great part out of the rents and profits of the building which were collected by and received from the mother. From the time that George K. Collins acquired the legal title to the property under the foreclosure sale the mother has continued to reside in the building; and during that period the rents were eollected sometimes by her and sometimes by George K. Collins.
    September 26, 1873, Frank Collins, having become of full age, conveyed his interest in the premises and in the rents and profits thereof to George K. Collins in consideration of $8,000, by a deed dated that day and recorded September 27,1873, in the office of the clerk of the county of Onondaga.
    In 1887 the plaintiff first learned that the defendant George K. Collins claimed to be the sole owner of the premises, and on the thirteenth of December of that year began this action to set aside the sale under the foreclosure, and to recover his share of the rents and profits collected by the defendants George 1£. Collins and Mary A. Collins. June 14, 1890, an interlocutory judgment was recovered, by which it was adjudged that the foreclosure was induced by the defendant George K. Collins; that his purchase was in fraud of the rights of his brothers; that an accounting be had between the parties to the action for the rents and profits received by them ; and that the plaintiff was entitled to recover two-ninths, Mary A. Collins, three-ninths, and George K. Collins, four-ninths of the net rents and profits of the premises. This judgment was affirmed by the General Term in February, 1891 (36 N. Y. St. Eepr. 591), and by the Court of Appeals in March, 1892 (131 N. Y. 648). After the affirmance of the judgment by the Court of Appeals, N. M. White was appointed a referee to take and state the accounts between John A. Collins, plaintiff, and George K. Collins and Mary A. Collins, two of the defendants, who were at that time the only persons interested in the property, or in the rents and profits thereof. A report was made, which the court refused to confirm, and it was referred to William S. Andrews to take and state the accounts between John A. Collins, George K. Collins and Mary A. Collins. There is no contest between George It. Collins and his mother, Mary A. Collins. The referee reported that the plaintiff was entitled to a final judgment against the defendant George It. Collins for $1,293.86. The evidence taken by the referee is annexed to his report. John A. Collins, plaintiff, and George It. Collins and Mary A. Collins, defendants, filed exceptions to the report.
    The defendants moved that the report be modified in certain respects, and as modified confirmed, but when the motion came on to be heard they withdrew their exceptions and asked that the report, as made, be confirmed. The plaintiff insisted upon his exceptions, and asked that the report be set aside and a new referee appointed to take and state the accounts, and it was so ordered, and from this order the defendants appeal.
    
      Harrison Hoyt, for the appellants.
    
      T. E. Hancock, for the respondent.
   Follett, J.:

This accounting covers a period of twenty-nine years and eleven months, from March 31,1862, to April 1,1892. The learned referee has stated the accounts as follows:

Rents collected................. $66,355 17
Rental value of rooms occupied by Mary A. Collins.. 5,370 00
Rental value of rooms occupied by plaintiff......... 3,714 00
Rental value of rooms occupied by George K. Collins. 28 00
Total rents received and rental values.......... $75,467 17

George K. Collins is charged with this sum by the referee, and is credited by the referee with the following sums:

Taxes, insurance, etc-............................ 37,111 79
$38,355 38
Of this balance Mary A. Collins, as dowress, is entitled to three-ninths............................ $12,785,127
John A. Collins (plaintiff), two-ninths............. 8,523.418
George K. Collins, four-ninths.................... 17,046.836
$38,355.38
Plaintiff’s interest in rents...................... $8,523 41

Against this the following sums are charged :

Rental value of rooms occupied by plaintiff. $3,714 00
Board of himself and family by mother. <* r-T 00
Coal furnished, by mother.............. 701 27
Wood furnished by mother............. 250 00
Milk furnished by mother.............. co cq CO 50
Ice furnished by mother............... 30 00
One-third cost of small piece of land, paid for by George K. Collins and added to property.......................... 36 66
Mary A. Collins, as agent for George K. Collins, collected $20,261.64 of the rents, all of which is charged to George K. Collins, who held the legal title of the property. The referee allows the mother five per cent for collecting $20,261.64, which amounts to $1,013.08, two-ninths of which is charged to John A. Collins........................... 225 12
- 7,229 55
Amount due John A. Collins.................. $1,293 86

The rents collected (the first item in the account), the rental value of rooms occupied by Mary A. Collins (the second item in the account) and the rental value of rooms occupied by George K. Collins (the fourth item in the account) are conceded by the plaintiff to be correct. But he challenges the right of the referee to charge him with $3,714 for the rooms occupied by him. The value of the use of these rooms was established by competent evidence, which is hardly questioned by the plaintiff, but it is urged that one tenant in common cannot charge his co-tenant for use and occupation. This is undoubtedly the rule in cases between co-tenants; but,, if the rule should be applied in this case, the rental value of the rooms occupied by Mary A. Collins and George K. Collins would necessarily be deducted from the account, which would leave the amount of rents to be charged against George K. Collins at $66,355.17, and after deducting taxes, insurance, etc. — $37,111.79—would leave $29,243.38. to be divided among the co-tenants, two-ninths of which belongs to> the plaintiff, and equals $6,498.52, or $2,024.89 less than the sum now credited to him. It is urged that the court erred in charging-the plaintiff with the value of board, coal, wood,, milk and ice furnished to the plaintiff and his family by the mother, Mary A. Collins. The evidence shows beyond question that the items charged for were furnished by the mother to this plaintiff and his family, and were of the value charged; and that she paid for them out of the rents collected by her from the tenants of the building; and that between her and George K. Collins she had no- right to make this application of these moneys, and is accountable to George K. Collins for his share of the moneys so applied. It is also urged in behalf of the plaintiff that the referee erred in charging him with $225.12, two-nintlis of the amount found due the mother for collecting part of the rents of the building. Had the defendant, George K. Collins employed and paid a collector, the amount, if reasonable, -would have been allowable under the rule held in Loos v. Wilkinson (113 N. Y. 485). The referee finds that, as between George K. Collins and his mother, he is chargeable with a reasonable sum for the collection of these rents; and, under the circumstances of this case, we think the charge of two-ninths thereof against this plaintiff was eminently fair and equitable. It is conceded that the defendant George K. Collins mainly had the charge of this building for thirty years, made all of the expenditures and managed the business, for which he made a claim of $6,000, or at the rate of $200 per year, but nothing was allowed' for his services during all of this period. lie also insisted and gave some evidence tending to show he had expended, at least $40 a year, or $1,200 in all, for items in connection with the building not charged for in his account. This claim was also disallowed. The plaintiff further insists that the accounts should have been stated with annual rests, and that George K. Collins should have been charged with interest upon the balances in his hands. It is apparent from the way in which the members of this family lived and conducted their business, that this mode of computation would have been impossible. If this could have been done, the amount which the plaintiff received •during each year would be charged against him and deducted from the amount chargeable to the defendant, and the difference between this method of accounting and the one adopted by the referee would not be great.

It should be observed that this is not an accounting by a trustee who has a definite or ascertainable fund in his hands which it is his ■duty to invest and pay over the income, and the principles applicable to such an accounting would be inequitable in a case like the present. An examination of the evidence in this case convinces me that ample justice was done by the referee to the plaintiff on •this accounting. I am aware of the fact that the defendant George K. Collins is in form charged by the judgment as a fraudulent trustee, but it seems to me to have been a case of constructive, rather than of intended fraud. It may be that his action in acquiring the'title, which was concurred in by the mother, was for the purpose of preserving the plaintiff’s interest in this estate, who seems not always to have been a successful business man. This view is strengthened by the fact that, when the youngest brother, Frank, became of age, the defendant settled with him for 1ns share in the property upon terms, the justness of which has not been assailed. I think that the referee has done substantial justice between these litigants, and if he has erred he has erred in favor of the plaintiff.

The order should be reversed, the report confirmed, and a final judgment ordered thereon, with costs to the plaintiff up to the date when that report was filed, and with costs in favor of the defendant George K. Collins against the plaintiff subsequent to that date, including costs of this appeal, to be taxed and set off against the plaintiff’s costs.

All concurred.

Order reversed, the report confirmed and a final judgment ordered thereon, with costs to the plaintiff up to the date when that report was filed, and with costs in favor of the defendant George K. Collins, against the plaintiff subsequent to that date, including costs of this appeal, to be taxed and set off against the plaintiff’s costs.  