
    George W. Coffin vs. Frederick A. Heath & another.
    The husband of a tenant in common of land joined his wife in an agreement with C., , the cotenant, that a building should be erected on the land, that C. should advance the money required for that purpose, and that the wife's portion of the land should be mortgaged to C. by her and her husband, to secure payment of the money to be advanced by him for the wife: C. advanced the money, and the building was erected: Before such mortgage could be executed, the wife died, leaving an infant son, her only heir, and the husband, his father, was appointed his guardian: C. filed a bill in equity against the guardian and the infant, praying the court to decree the sum, advanced as aforesaid, to be a lien on the infant's estate, that the same was a trust in the infant for C., and that the guardian might be authorized and required to mortgage the infant's portion of the land, to secure payment of the sum so advanced and expended. Held, that no lien on the infant's estate was created by the agreement under which C. advanced the money, because that agreement was not binding on the infant or his mother, by reason of her coverture. Held also, that if there was anv lien on the estate, it could not be enforced by a decree made against the infant during his minority. Held further, that the husband was not discharged from his personai liability on the agreement.
    This was a bill in equity, of which the following is an abstract • The plaintiff is executor of the last will of Peleg Coffin, which was proved and allowed in April 1805, and by which the testator devised all his real estate, and the income of his personal property, to Eunice Coffin his wife, for life, remainder to his three children, viz. Mary, now widow of Peter Easton, Elizabeth B., then single, and George W., the plaintiff, and their heirs and representatives, respectively.
    Elizabeth B. afterwards married Andrew E. Symmes, and died intestate, leaving two children, viz. Eliza C. and Mary Ann S., her only heirs. Mary Ann S. afterwards married Frederick A. Heath, one of the defendants, and died intestate, leaving a son, Elliot S. Heath, the other defendant, her sole heir, now a minor under the guardianship of his father, the said Frederick A.
    The testator died seized of a lot of land, of great value, at the corner of Water and Devonshire Streets in Boston. On this lot, the said Eunice, with the approbation of the reversioners, erected buildings, which were destroyed by fire, in October 1835. As she had not funds sufficient to erect new buildings, and as she and all the reversioners deemed it for their interest, respectively, that new buildings should be erected, an agreement was made with Charles C. Little, by which he undertook to erect a substantial ware house on said land, and to take a lease thereof, when completed, for ten years, at a yearly rent of @1120, he paying taxes. Said Eunice was to contribute @4000, and all the remaining materials of the old buildings, to the erection of the new one, and any additional sum, required for the completion of said new building, was to be advanced by the reversioners, and said Little was to pay seven per cent, thereon, by way of additional rent, and also to pay or all repairs of the premises during his said term.
    Under this agreement, the ware house was erected, and a lease was given by said Eunice to said Little, by which a yeadv rent of $2136, payable quarterly, was reserved. The said Mary Easton, Eliza C. Symmes, Mary Ann S. Heath, and Frederick A. Heath, were unable to advance their aliquot shares of the sum required to complete said ware house; and the plaintiff, at their request, advanced the whole sum, under an agreement that they would repay him, with interest at six per cent., in the following proportions, viz. Mary Easton one third ; Eliza C. Symmes one sixth; Mary Ann S. Heath one sixth; to secure payment of which, they were to mortgage to the plaintiff their respective shares in said premises. On the faith of this agreement, the plaintiff advanced $11,760, which was judiciously expended in the erection of such a ware house as has greatly enhanced the value of said estate and the interest of the reversioners therein.
    The said Eunice died on the 5th of December 1838. Mary Easton and Eliza C. Symmes executed mortgages to secure the plaintiff for his said advances made for them, pursuant to the aforesaid agreement; but before Mary Ann S. Heath could execute such mortgage, she died, leaving the aforesaid Elliot S. Heath, her only child and heir, to whom her estate descended.
    The plaintiff applied to said Frederick A. Heath, and requested him, as guardian of said Elliot S., his son, to execute a mortgage of the estate of his son in the premises, to secure the repayment of one sixth of the sum advanced as aforesaid. But said Heath, not supposing that he was authorized to execute such mortgage, declined so to do; admitting, at the same time, the justice of the plaintiff’s claim.
    The prayer of the bill was, that the court would declare the sum of money, advanced by the plaintiff, a lien on the land and ware house; that the same descended to Elliot S. Heath, charged with said lien; that the same was a trust in said Elliot S. for the plaintiff; that as said Elliot S., being an infant, is not legally competent, the said Frederick A., as his guardian, might be authorized and required to execute such trust, by mortgaging, on just and reasonable terms, the estate of said infant, to secure the repayment of the proportional part of the money advanced and expended by the plaintiff for the benefit of all concerned; and for such further relief, &c.
    
      The answer of Elliot S. Heath, made by Frederick A. Heath, his father and guardian, admitted that the matters, in the bill alleged, were true.
    
      C. P. Curtis, for the plaintiff.
    The facts in this case show, at least, an implied trust sufficient to establish a lien. Where a part owner of real estate expends money, bond fide, for substantial improvements, the other part owners are bound in equity to contribute, and there is a lien on the estate. Jeremy Eq. Jurisd. 86. Sugd. Vend. c. 15, <§> 1. Cawdor v. Lewis, 1 Younge & Collyer, 427. Hibbert v. Cooke, 1 Sim. & Stu. 552. 2 Story on Eq. §<§> 1234 - 1236. King v. Thompson, 9 Pet. 204. Hays v. Wood, 4 Rand. 272.
    
      B. R. Curtis, for the defendants.
    The answer can have no effect on the infant defendant, and cannot even be read as evidence against him. 2 Vent. 72. 3 P. W. 237. 1 Ball & Beat. 553. And independently of the answer, no lien is shown. The cases cited for the plaintiff differ from this. In those, the party for whose benefit improvements were made, was interested in the estate at the time they were made. In this case, the infant’s father had no interest, when the ware house was erected. He might become, as he afterwards did, tenant by the curtesy. And the infant’s mother was a feme covert, and could not make a binding contract. Besides ; this is not a trust of which the court will take cognizance, if it be any trust at all. Gould v. Gould, 5 Met. 274.
    Where an infant’s inheritance is to be affected, he must have notice to show cause, and six months after he comes of age are generally allowed to him for that purpose. Harris v. Youman, 1 Hoffm. R. 178, and cases there cited.
   Wilde, J.

Two questions are raised on the bill and answer : 1st, Whether the plaintiff has any equitable lien on the estate described in the bill; and 2d, if he has, whether he is entitled to the relief prayed for, during the minority of Elliot S. Heath, one of the defendants.

By the common law, where one joint-tenant or tenant in common of a house or mill is willing to repair, and the others will not, he who is willing to repair has a right to make all necessary and useful repairs, and may have his writ de reparar tione fatienda against the other tenants, to obtain contribution. To sustain such an action, there must be a request to join in the reparation, and a refusal; and the expenditures must have been previously made. This writ, therefore, would not lie where the repairs had been made under an agreement, express or implied. 4 Kent Com. (3d ed.) 370. 2 Story on Eq. <§> 1235. But the doctrine of contribution in equity is more ample than at law, and is founded on the principle that where parties stand in cequali jure, equality of burthen becomes equity. And so if repairs be made and.paid for by one of the tenants, for the common benefit of the other tenants, they, in equity, would be held to contribute ratably for such useful expenses. And not only would they be personally liable to contribution, but their estates also would be subjected to a lien, whether the tenants agreed to repair or not, if 'by the repairs a common benefit has been conferred on the owners, so that ex cequo et bono they ought to pay for such a benefit. 1 Eq. Cas. Ab. 291. eremy Eq. Jurisd. 86. Percy v. Millaudon, 18 Martin, 616 2 Story on Eq. §. 1236.

To apply these principles to the present case, it appears clearly that Frederick A. Heath is liable to contribution, by his express agreement. That was a valid agreement, and the plaintiff had a lien on his estate in the premises, which has been defeated, it is true, by the death of his wife ; but that does not discharge him from his personal liability. If Elliot S. Heath, his son, be bound to contribute, the father may have recourse to him for indemnity. And if he should receive the rents during the minority of his son, he will be entitled to retain them, by crediting them in his account of guardianship. If the son be not liable, and there be no lien on his estate, the loss must fall on his father,, rather than on the plaintiff.

But, admitting that there is a lien on the estate of Elliot S. Heath, and that to avoid circuity of action the plaintiff might enforce his claim of contribution against him or his estate; the question then is, whether the claim can be enforced during his minority; and we are of opinion that it cannot. No decree can be made against an infant, without having a day given him to show cause, after he comes of age. 2 Mad. Ch. Pract. 352 So if there be several parties to a suit in chancery, and it appears that any one of the defendants is an infant, and a decree is prayed against him, he must have a day given him to show cause, after he shall attain his age of 21 years ; and he is to be served with process for that purpose. According to the English rule, six months are allowed to show cause why the decree against him should not be made absolute. If an answer be put in by his guardian, it will not conclude him, nor can it be read against him ; but he may put in a new answer, and make a new defence; so that the previous decree is of no force against him, unless made absolute after he has failed to show cause. Sayle & Freeland’s case, 2 Vent. 350, 351. 2 Fowler’s Exch. Pract. (2d ed.) 170—172. Thomas v. Gyles, 2 Vern. 232. Harris v. Youman, 1 Hoffm. R. 178, and cases there cited. This privilege of an infant does not depend on his right to have the parol demur. That right has been abolished in England and in New York ; yet it has since been held, both in England and in New York, that the rule giving an infant a day, after his attaining his majority, to show cause, is still in force. There are many cases where the infant may be bound, and his estate may be bound or disposed of by his guardian; but these cases de pend on statutes, such as the law relating to the partition of real estate; sales by guardians, by license, &c. But there is no statute which authorizes the guardian to sell the minor’s estate, or to mortgage it for the security of the plaintiff. Nor has the court power to give him any such authority.

And besides ; if there be any lien on the minor’s estate, it is not created by the agreement under which the plaintiff made his advances. Neither he, nor his mother, was bound by that agreement, by reason of her coverture. We think, therefore, that if any bill could be now sustained, it would be for ttse purpose of restraining the minor and his guardian from taking any share .of the rents and profits, until the minor shall arrive at full age, unless they pay or secure to the plaintiff such portion of the money advanced, as ex tequo et bono the minor will be bound to contribute, on his arrival at full age. It is not stated in the bill, nor was it suggested in the argument of counsel, that the guardian has claimed any part of the rent of the store ; and if the plaintiff should receive the minor’s share of rent, he may be fully indemnified, before the minor may arrive at full age.

And furthermore; we are inclined to the :pinion, that if Elliot S. Heath were not a minor, the plaintiff would be held to look to the rents for his indemnity, as he was in no respect bound by the agreement of his parents. If his mother had been bound by that agreement, the plaintiff’s claim would rest on different principles. But the agreement, on her part, was void, and consequently could not bind her heir. It seems therefore, in equity, that the plaintiff must look to the rents of the estate for contribution and indemnity, and that the defendant will not be bound to contribute, until he shall claim his share of the rents; although, before the plaintiff shall be fully indemnified, the defendant may arrive at full age. But however this may be, we are of opinion, that during the minority of Elliot S. Heath, the plaintiff is not entitled to the relief prayed for, and that it would be useless to enter a decree against the infant, which could not be made absolute against him until after his coming of age.

Bill dismissed without prejudice.  