
    Carey v. Kemper.
    A fund was held for the use of C., a married woman, for her life, the principal, at her death, to go to her adopted son, a minor. In a propel case a court of competent jurisdiction ordered the investment of this fund in improved city property. On the premises selected no buildings existed, but K. agreed to complete six houses thereon for a stipulated price, to he paid out of the said fund. Said sum was added to the price agreed upon for the ground alone, and the aggregate sum was placed in the deed as the consideration of the purchase, with the approval of the court. K. completed the houses, but no part of the fund was paid to him, and no part of said consideration, except the price of the ground alone, was paid to any one. Held: The balance of said purchase money, with interest, not exceeding the sum (with interest) due to K. should be paid to him out of the property so purchased; the interest of the tenant for life and the remainder man sharing the burden in proportion to their respective values.
    Error, to the District Court of Hamilton County.
    At the beginning of October, 1875, the estate disposed of by the will of James Richardson, was in charge of Joseph S. Richardson. Besides other property, it embraced some lots on Everett and Clark streets, Cincinnati, and certain lots in the sub-division of the estate of Samuel Snively, being 150 feet frontage on the Colerain pike in said city. The will gave to Jane Richai’dson, who by a second marriage became Jane Carey, a life estate in this property, and placed the remainder in fee in a trustee for the benefit of Jacob J. Richardson, a minor. Joseph S. Richardson, the father of said minor, was executor of the will, and by virtue of a lease from Jane Carey, held possession of her life estate, subject to forfeiture for non-payment of rent. Thomas L. Young was guardian of the estate of said minor. The lots on Everett and Clark streets and the Colerain pike property were unproductive. Acting in all his capacities, Joseph S. Richardson tried to benefit the entire estate by selling the lots on Everett and Clark streets, and building on the Colerain pike land. He induced Bernard Kemper to begin the buildings, promising pajunent out of the proceeds of the other lots, — Jane Carey consenting. The other lots were duly sold for $8,900, but Kemper became doubtful about pa3rment and refused to go on unless satisfied on that head. Therefore, on October 23, 1875, Jane Carey brought an action, in Hamilton common pleas, making the executor, the minor and the guardian defend ants; stating that the Colerain pike property was worth '$6,000, but was unimproved, a great burden to the estate, not likety to increase in value, and that a sale would be for the benefit of the life tenant and do no injury to the remainderman. The prayer asked for the sale, and for the reinvestment of the proceeds. In due course the court ordered a sale, of tire 150 feet on the Colerain pike, which was made December 13, 1875, for $7,125, to Herman P. Goebel, who had no interest in the affair except to lend the use of his name as grantee in one deed, and grantor in another. On December 24, 1875, the court found that a fund of $15,473.86 was in hand for reinvestment, (the proceeds of the Everett and Clark street lots and of said Cole-rain pike land), and ordered the purchase of 90 feet of the same Colerain pike land as improved property for $15,000, expressly including “the six houses thereon erected.” This price was fixed by adding to the value of the ground so much as was required to pay Kemper for completing the houses, and he was assured that, if he would build them, he would be paid out of said purchase money. The court approved the purchase, and Goebel conveyed lots 11, 12 and 5 feet off the north part of lot 10, by proper deed in fee simple, to Jacob J. Richardson, the minor, subject to the life estate of Jane Carey. No money was paid. She joined with Joseph S. Richardson in the assurances to Kemper. The guardian said nothing, but he was a party to the suit and acquiesced in the sale and reinvestment. Kemper, relying upon said arrangement, built the houses. On June 3, 1878, there was due to him $9,705.42, of which $1,457.95 Was to go to John W., Thomas G., and William L. Robinson, partners as J. W. & T. G. Robinson, and $551.19. to Henry Wagner, they being sub-contractors under him. The' work was finished in October, 1876. Kemper, finding that the other parties were, for some reason, not willing, or not able, to pay him out of said purchase money, on December 29, 1876, perfected a mechanic’s lien on said lots, and, in January, 1877, brought suit in Hamilton common pleas against the minor, his guardian, the executor, the life tenant, her lessee, and the sub-contractors; setting out the facts and praying a finding of the sum. due him, a sale of the premises and other relief, etc. Prior to said suit, Jane Care3r had, b3r another suit, procured a decree forfeiting her lessee’s rights under his lease, and the lessee having become insolvent and having riiade an assignment for the benefit of his creditors to W. G. Mayer, Kemper made. Mayer a defendant and charged that the forfeiture of said lease was a fraud upon him. Jane Carey and the minor, by his guardian, answered separately, denying any contract with Kemper and averring that he must look to Joseph S. Richardson alone for his pay. The minor answered also by guardian ad litem in the usual form. The sub-contractors filed cross petitions asserting their claims in due form of law.
    The common pleas held that the builders had no claim on the minor’s interest; that Jane Carey was estopped from denying that her interest was liable to them for said debt; dismissed the action as to the minor and his guardian, rendered a personal judgment against Joseph S. Richardson and subjected Jane Carey’s life estate in the Colerain pike land to the payment of the judgment and costs. Jane Carey, Kemper and the sub-contractors excepted to the respective .findings, etc., against them. A motion for a new trial made by Jane Carey was overruled. Proper bills of exception were duly made part of the record, and, on January 30, 1879, the case was heard in the district court. That court reversed the judgment of the common pleas, on Jane Carey’s petition in error; dismissed Kemper’s cross petition ; declared void the decree forfeiting the lease to Joseph S. Richardson as to Kemper and bis sub-contractors; held said lease subject to the payment of the cost of the buildings; appointed a receiver; directed him to take charge of the premises and rent them until a sale could be made of said lessee’s interest; ordered such sale and directed a distribution of the rents and proceeds: first, to costs (except on Kemper’s cross petition); second, taxes; third, a proportionate share of rents to Jane Carey; fourth, to the subcontractors ; and fifth, to Kemper.
    The case is in this court upon the petition in error of Jane Carey and the- cross petition in error of Kemper. Kemper alleges error (amongst other things): 1, in dismissing his cross petition ; 4, and 6, in not subjecting the interests of the minor and of Jane Carey to the extent that they had been benefitted by his improvements.
    The record contains a special finding of facts made by the court of common pleas at the request of Jane Carey. In addition to the foregoing facts, said finding showed that said buildings added materially and permanently to the value of the estate, and produced a rental exceeding $1,400 from premises theretofore unproductive.
    
      Samuel T. Crawford, for plaintiff in error.
    
      Q-asser Spangenberg, for defendant in error — Kemper.
    
      Sayler Sayler, for Robinson.
    
      Z>. Wulsin, James U. Perkins, and Frank O. Suire, for Wagner.
   Granger, C. J.

The solution of the problem presented by these facts is easy. Although the court may lack power to render a personal judgment against a minor, or a married woman, upon a contract for the purchase of real estate, it has full power to apply the realty so purchased to pay for itself. When the common pleas on December 24, 1875, ordered the purchase as improved property for $15,000 of nine-fifteenths of the realty that, only eleven days before, it had caused to be sold for $7,125 as unimproved property, it well knew that no rubbing of Aladdin’s lamp had in that brief time placed houses thereon. It is very plain that both court and parties treated the arrangement with Kemper as a sufficient substitute for the houses themselves, and solely because of that arrangement ordered the purchase as a proper investment of the fund. It was competent for the parties to purchase suitable property covered by a lien, and to agree to pay the debt secured by the lien, as a part of the purchase money. In substance that is precisely what was done in this case. The completion of the houses was an essential part of the purchase. Kemper consented to complete them on the faith of the assurances made to him that he would be paid out of the fund ordered to be invested in the purchase. The fact that Young, the guardian, said nothing is immaterial. He was a party to the suit, and thereby a party to the purchase made under the order of the court. He cannot hold for his ward the benefit secured by that purchase and escape its burden. The finding of facts made by the common pleas, fairly considered, satisfies the mind, that the transaction with Kemper, from the outset, was intended for the benefit of the whole estate, and of all parties interested in it; that no one purposed that Joseph Richardson should pay for the houses; and that the action brought by Mrs. Carej7, in October, 1875, was, by common consent, used as a means for legally paying for the houses out of the estate. It could have had no other purpose. That court sanctioned the plan. Kemper in good faith fulfilled his part. It would work a fraud, were we now to permit any party to that suit to defeat the full enforcement of the decree therein made. As the price of the ground alone was $4,275, the remainder of the sum ordered by the court to be invested amounts to $10,725— enough (with its interest) to pay Kemper in full. It seems probable that Mrs. Carey has, never paid anything for the 60 feet deeded to her. She will not suffer if the rents collected by the receiver shall be promptly paid to those who built the houses that produced the rents, provided we reserve to her full right to interplead with J. J. Richardson and his guardian, so that the burden may be shared in the ratio of the values of their estates. It follows that the judgments of the district court and common pleas must be reversed, (without disturbing the report of the master, or the appointment of the receiver and his power to rent and collect the rents), and a decree for the plaintiff for $9,705.42 and interest from June 8, 1878. As between Mrs. Carey and J. J. Richardson the costs and the balance due for the buildings should be paid in the proportion of their interests. Her share should be fixed by the aid of annuity tables treating the total cost and expense at the date of the completion of the buildings as the principal of a fund in which she held a life interest and the minor the remainder. The net rents collected by the receiver may be applied first, to pay the costs of this suit including the receiver’s proper fee; next, to the sub-contractors pro rata up to the sums found due them by the master with interest from June 3, 1878; next, to Kemper, until he shall have been paid the sum found due to him by the master with like interest, and any balance to Jane Carey. If any balance shall then remain due to the sub-contractors, or to Kemper, unless it shall be paid within thirty days from the decree, with the interest, the premises conveyed to J. J. Richardson by Goebel under the order of December 24, 1875, should be sold by the sheriff as upon execution, and the proceeds applied to pay the remaining costs, taxes, interest and debt. The case should remain pending in the common pleas for adjustment between Jane Carey and J. J. Richardson of their respective shares of the liability imposed by this decree.

Decree accordingly.  