
    Julia V. Pape, as Administratrix, etc., Resp’t, v. Joseph L. Schofield et al., App'lts.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed April IS, 1894.)
    
    1. Estoppel—Enjoyment of benefits.
    A party, who has accepted the conditions of an order and obtained the benefits which it grants to him, is bound by it.
    2. Same—In pais.
    Where a tenant in common was induced to execute a conveyance of the premises by agreement, on the part of his co-tenants, that his claim for his share of the rents should be retained out of the proceeds, and the amount actually due him ascertained and paid, they cani.ot object, in an action against them therefor, that his claim was personal against the co-tenant who had collected the rents, and can be enforced only against him personally.
    Appeal from a judgment in favor of plaintiff;
    
      F. L. Moissen, for app’lts; John Delahunly, for resp’t.
   Parker, J.

Prior to the 22d day of December, 1883, Joseph L., Simon R, and Helen Schofield, Mary Rich, and Catharine R Pape were tenants in common of certain premises situated in this city. On that day Catherine R Pape died leaving, her surviving, her husband, Ernest D. Pape, who thereupon became vested with a tenancy by the curtesy in an undivided one-fifth share of such premises. About the 1st of August, 1888, the owners of the fee had presented to them an opportunity to sell the real estate at what seemed a favorable price, and their agent and attorney, Thomas J. McKee, thereupon undertook to induce Pape to join in the conveyance. This he at first refused to do, unless he should be paid a proportiqn of the rents due him as 'tenant by the curtesy, together with the unpaid rents which were due to his wife at the time of her death, and the value of his interest as such tenant, to be computed according to the method provided by law. Pape prepared and presented an itemized statement of his claim, aggregating $7,775. The correctness of the claim was not admitted, and, the time for the completion of the sale being near at hand, it was agreed between the agent for the owners of the fee and Dr. Pape that a sum of money equal to the amount claimed by him should be retained out of the purchase money, for the purpose of paying whatever amount it should afterwards be agreed of right belonged- to, the claimant. Accordingly the sale took place, the money was retained by the" agent, McKee, as stipulated, but, the parties being unable to agree upon the amount due, Pape instituted this suit, in which he demanded an accounting for the rents to which be made claim individually, as well as those alleged to be due him as administrator of his wife’s estate, and for the gross value of his tenancy at the time of the conveyance. Two of the defendants answered, the others suffered default, and, the case being at issue, t'he special term sent the matter to a referee', to take and state 'the accounts, and report; the interlocutory decree further adjudging that upon the coming in of the report of the referee, and the confirmation of the same, plaintiff have judgment that the defendant pay to the plaintiff out of the moneys in his hands, mentioned in the complaint, the sum which may be found due him as tenant by the curtesy in said premises, and as administrator of Catharine E. Pape, deceased. The referee reported that there was due to the plaintiff the sum of $6,341.23, the report being dated and filed December 13,1889. Two days later the plaintiff, Pape, died. Shortly afterwards his executrix was substituted in liis place as plaintiff, and on November 29, 1890, final judgment was entered, confirming the referee’s report, and directing payment to the plaintiff, by McKee, out of the funds in his hands, the sum reported due, with costs. Thereafter Simon E. and Helen Schofield and Mary Eich, who had not appeared in the action, made application to the court that the default be opened. The motion was granted, the order providing that they be allowed “ to come in and litigate the question as to the amount that should be paid Dr. Ernest D. Pape’s estate from the funds in the hands of Thomas J. McKee (one of said defendants), and for that purpose interposes answers to the amended complaint in said action, and said motion to that extent is hereby granted, upon condition—First, that said defendants will not and do not take or interpose any technical objection to the right of the said plaintiff to continue the action as it is now framed; second, that said action be sent back to the referee appointed by the interlocutory judgment therein for trial upon the issues made by the answers to be interposed to said complaint by said defendants, respectively, such answer or answers to be served within ten days after the entry of this order, and the reference to proceed thereafter upon two days’ notice.” The proceedings thereafter had resulted in a report by the referee that there was due the plamtiff the aggregate sum of $6,309.54, which report was confirmed at special term, and judgment accordingly entered. Under this state of facts, it seems a little remarkable that the defendants who were allowed to come in by the court, after judgment had been rendered, for the purpose only of litigating the sum due, should contend with apparent seriousness—First, that however substantial the claim of Dr. Pape may have been for moneys accrued to him by reason of his tenancy by the curtesy, it abated on his death; second, that the plaintiffs failed to prove any personal liability on the part of the co-tenants other than Joseph L. Schofield, who collected rents; third, that the agreement did not provide that the sum set apart to secure Dr. Pape, or any part of it should be applied in the payment of rents due him, either individually or as administrator.

In the light of the facts disclosed by this record, to the principal features of which we have briefly alluded, it is apparent that the points referred to ought not to have been insisted upon here; but, as they have been unsuccessfully presented, there will result no practical difference. Touching, the first point, it is unnecessary for us to determine what would have been the effect upon the claim which Dr. Pape made had he died before the granting of the interlocutory judgment, and the making and filing of the report of the referee in pursuance thereof. That judgment was valid and final as to the rights of the parties until reversed on appeal, and, as no appeal has ever been taken from it, it is not before this co«t for review. The merits of the controversy being thus adjusted as between the parties, three of the defendants asked that their default might be qpened, and they allowed to come in- and defend.. Apparently for the purpose of depriving the petitioners seeking relief from their default from making such use of the-benefit which they sought as would work injustice to the estate of the deceased, Dr. Pape, the court established the limits of the answer, and inserted as a condition for the opening of the default that defendants should not interpose afny technical objections to the rights of the plaintiff to continue the action in its present form. Now, having accepted the conditions bf the order, and obtained the benefits which it granted to them, defendants are bound by it.

The point next made is that liability for rent collected by one tenant in common for his co-tenant is a personal one, and on only be enforced against him personally. The applicability of that proposition to the situation which the facts of this case present is sought to be founded on the fact that the"rents for a number of years, for which the plaintiff has recovered, were collected by Joseph L. Schofield, one of the co-tenants. The contention is not well grounded, however, because the situation is changed by the stipulation and agreement of the parties. The owners of the fee, being anxious to sell the property, attempted to induce Dr. Pape to unite with them in a conveyance, but he refused on the ground that he had not received the proportion of the rent due to him individually and as administrator of Mrs. Pape’s estate. This refusal standing in the way of the consummation of their agreement to sell, they attempted to provide a method which should secure to him whatever should be found to be actually due. Thus, the several defendants did not sign the agreement, but McKee, their agent and attorney signed it for them, as he was authorized to do, and some,’if not all, of them knew what the arrangement was prior to the execution of the conveyance. The whole transaction, therefore, amounted, in effect, to an agreement between the parties that the whole or such part of the claim of Dr. Pape as should turn out to be well founded, which claim was then before them in the form of an itemized statement, should be paid opt of the fund to be retained from the proceeds of the, sale by the agent, McKee.

For the reason presented in the discussion of the first and second points, the third cannot avail the defendants.

It is further insisted that the referee erred "in finding Dr. Pape to have been of the age of 63 years on the 1st day of August, 1888. jAn attentive reading of the evidence leads us to the conclusion that the referee’s finding has such support therein as denies to this court the right to interfere with it.

The judgment should be affirmed, with costs.

All concur.  