
    James F. Ryder, Appellant, v. Nancy P. Coburn and Others, Appellants, Impleaded with Patrick Wall, Respondent.
    
      Lien for improvements made by a contract vendee, to property contracted to be sold by one tenant in common who conceals his. want of authority to act for one of his cotenants-—effect of the vendee’s ability to acquire the title of such cotenant at the contract price. *
    A tenant in common of an undivided eighth of certain premises, who had ' power to sell the interest of other cotenants owning six-eighths of the property, entered into a cpntract to sell the entire property, concealing from the proposed vendee the fact that he did not control the remaining oñe-eighth interest: The proposed vendee thereafter, while still ignorant of that fact, expended moneys in repairing and improving the premises, hut when the time for the performance of the contract arrived his vendor was unable to give a good title and the conveyance was not made. ’ .
    Subsequently an action for the partition of the premises was instituted, in which the proposed vendee, who was made a party defendant, claimed a lien for the repairs and improvements made by him.
    
      Held, that in the absence of proof that the cotenants who had authorized the sale of their interests participated in the. fraud, if any, of the cotenant who executed the contract of sale, the relief of the proposed vendee as to them was limited to the amount which the property realized on the sale in excess of that which it would have realized had the repairs and improvements not been. made.
    
      Semble, that as it appeared that the proposed purchaser could have secured a conveyance of the outstanding interest and thus have obtained a complete title without expending more than the consideration named in the contract, and that he actually did procure a sale of such interest to be made to a third party, he was not entitled to relief in equity, but would be remitted to such remedy as he might have in an action at law.
    Appeal by the plaintiff, James F. Ryder, and by the defendants, Raney P. Coburn and others, from so much of a final judgment of the Supreme Court, entered in the office of the clerk of the county of Tompkins on the 11th day of .August, 1899, upon the decision of the court rendered after a trial at the Tompkins Special Term, and upon the report of a referee, as directs that there he paid to the defendant Patrick Wall .the sum of $306.84, expended by him for repairs and improvements upon the property described in the complaint in the action, with' interest thereon from the entry of judgment.
    This action was commenced on the 14th day of January, 1899, and was brought for the partition of certain- real estate, consisting of a house and lot in the village of Ithaca. The plaintiff, as one of the heirs at law of John Ryder, deceased, was the owner of an undivided one-eighth interest, and the defendants, except the defendant Wall, were the owners of the balance of the title. In the complaint it was alleged that the defendant Wall claimed to be in possession, but without right or authority as against any of the -other parties. Rone of the defendants answered except Wall. He -served an answer claiming an equitable lien on the property to the amount - of $305.94 for repairs and improvements made by him after obtaining from one of the heirs, the defendant Phillip S. Ryder, on September 2, 1898, a contract to purchase the property. It was alleged that fraudulent representations were made as to the title. ' ■
    The case came to trial at Special Term in May, 1899, and after hearing the proofs of the parties the court directed an interlocutory judgment of sale, reserving until the coming in of the report of sale the'determination of the question whether the defendant Wall had a lien as claimed by him. A sale was accordingly made on July 1, 1899, and the premises were sold for the sum of $1,535. After-wards a further hearing was had upon the claim of Wall, and a decision made, upon which the final judgment, appealed from, was -entered. The court decided that Wall was entitled to be paid from the proceeds of the sale the sum of $42 advanced by- him. on the-purchase price and also the sum of $306.84 disbursed by him for repairs and improvements on the property.
    
      Newman, Blood & Banks and Willard M. Kent, for the appellants.
    
      Simeon Smith, for the respondent.
   Merwin, J.:

' The appellants claim that the court erred in directing the payment to Wall, from the proceeds of the sale, of the sum of $306.84 for repairs and improvements.

- The contract of September 2, 1898, from which the claim of Wall originates, is between “ Rhillip S. Ryder of Syracuse, N. Y.r for the estate of liis-:father, deceased, owner, of the first part,” and Patrick Wall of the second part. The party of the first part, in (consideration of $1,600 to him duly paid, agreed to sell to the-party of the second part the house and lot in question, and upon receiving payment of such sum on or before November 10, 1898, lie-agreed at his own cost and expense to execute and deliver tó the party of the second part or his assigns a good and sufficient warranty deed. The contract is signed “ Phillip S. Ryder per Geo. L. Price, agent.” The sale was made through Price, a real estate agent, and Phillip S. Ryder was not present. He had previously said to Price, as Price testifies, that he had the control of the whole Ryder property now so he could close it up and sell it,” and then Price.undertook to sell it. Price also testifies that he “ did not tell Mr. Wall anything about any complications to - this title. I simply told him they wanted to sell it and wanted to close it out and give a good title.” Wall made no investigation.as to the title. All of the owners were non-residents except Phillip. • Florence Hyman was. by devise from John H.' Ryder, deceased, the owner of oneeiglith. There had been litigation between her and the other heirs- or owners as to the property, but terms of settlement had been, as Phillip was informed, agreed upon so that he supposed ' that he could control the title. The -contract did not in terms give .Wall possession, but he took possession by permission of Price. Wall .testifies that, soon after the contract was made and before he commenced the repairs, Phillip was there on the premises and said to him, I am the owner of the place with my brothel’s and sisters and I am the owner of those parts, and I have got Miss Hyman’s interest now ; ” that he then went on, made the repairs and improvements, .disbursing therefor the sum of $306.84. Phillip denies saying to Wall that he had the Hyman interest. The settlement with Miss Hyman was not accomplished, so that on Hovember tenth, when the contract was to be performed, Phillip could not give a good title. Efforts were made by him to obtain the interest of Miss Hyman up to about the time this suit was commenced, but without success. After the commencement of the suit and on February 6,1899, Miss Hyman conveyed her interest to Wm. M. Smith for the consideration of $150. This sale was procured by Wall, and as it may be inferred he could have obtained title of this interest to himself, had he so desired. From about December first he seems to have declined to accept performance of the contract. The grantee Smith was afterwards brought in as party defendant.

The trial court found that the real relations existing between the Ryders and Miss Hyman were concealed, although not willfully, from Wall by the Ryders; that Wall was ignorant of the same at the time he made the contract and the repairs and improvements, and that he made the expenditure in good faith expecting to get title as agreed by the contract; that Phillip S. Ryder and the other tenants in common acting with him were guilty of a legal fraud towards Mr. Wall.' Upon this basis apparently the judgment was given.

The only 'authority that Phillip had to act for his brothers and. sisters owning six-eighths of the property, was to sell their interests.. He had no authority from them to undertake to sell the whole.. That was his individual undertaking. So that, if he committed any fraud upon Wall by reason of any representation of his ownership of the Hyman interest, there is not in the record before us any sufficient ground for charging it upon the other six. As against them, in the absence of fraud or bad faith, the equitable rélief, if any, awarded to Wall must be, I think, on the basis that the repairs and improvements increased the value of- the property to such an extent that, the owners were able'upon a sale'to obtain a price greater than they would havé otherwise obtained; and the-award to Wall should not exceed the amount of such increase. If one tenant in common of property, expecting to be able upon a sale to cqntrol the whole title, expends money in making repairs of improvements not necessary for the preservation of the property, the other owners, who do not consent to the same, should not, by the operation of an equitable lien, be deprived of what they would have obtained had no such expense been made. (Cosgriff v. Foss, 152 N. Y. 104,110.) The repairs here were not to protect or presérve the property, but for the purpose of obtaining an increased rental. It was rented at, the time the contract was made. The position of Wall would not be any better than that of Phillip, the tenant in common, with whom he dealt.

From the evidence in this case I am not satisfied that the prop-. erty at the sale brought any more than it would have brought had the repairs in question not been made. It is not found that there was any increase, and the evidence does, not warrant such a finding. The property was in market for sale and its value upon a sale should be the test. -

It follows that no sufficient basis appears for making the claim of Wall a lien on the interests of six of the owners, being all of the appellants except Phillip S. Ryder.

There is, however, another view of the situation which is, I think, fatal to the claim of the respondent for equitable relief.' It is quite clear from the evidence that the respondent, at the time he procured a purchaser for the interest of Miss Hyman anda conveyance was made by her to the defendant Smith, could, if he had so desired, have obtained performance of the contract and acquired full title, without expense beyond the amount of consideration named in the contract. He did not choose to do this, and legally he was not, as we may assume, bound to do so. He, however, retained possession and afterwards put in his answer claiming a lien. Ashe repudiated the contract when it might have been carried out and the rights of all parties protected without loss, he is not now in a position to claim an equitable lien on the proceeds of the sale for damages that he might have prevented. The right to relief in cases of this kind “is carefully limited to those eases where special circumstances give rise to strong equitable rights'.” (Cosgriff v. Foss, 152 N. Y. 104, 109.)' Wall should be remitted to such remedy as lie may have in. an action at law..

T{he judgment, so far as appealed from, should be reversed, with costs to appellants to abide the event, and a new trial granted.

All concurred.

Judgment, so far as appealed from reversed, and. a new trial granted, costs to the appellants to abide the event.  