## Facts

- William Mosher died intestate owning three tracts of land.
- Title passed to his heirs at law: his adult children and two infant grandchildren.
- One adult heir filed a partition proceeding that led to a judicial partition sale.
- The adult heirs agreed that Elizabeth Van Buskirk, one of the adult heirs, would bid in the property at the partition sale, take title, and hold it for the adult heirs so they could later sell privately for a higher price.
- The adult heirs authorized Van Buskirk to sell for not less than $14,000, and the plan’s purpose was to exclude the infant grandchildren from sharing in the land’s value.
- Van Buskirk purchased the property at the partition sale for $5,000.
- Van Buskirk later entered a contract to sell two of the three tracts (about 48 acres in Livingston, Essex County) to Herbert Investment Company for $15,000.
- Herbert Investment Company later transferred or sold its contract rights for $20,000.
- Aaron H. Mosher, an adult heir, filed a bill in equity seeking to have a trust declared in favor of all heirs, including the infant grandchildren.
- Herbert Investment Company was made a defendant and filed a counterclaim seeking specific performance of its purchase contract.

## Issues

1. Whether equity will treat a partition-sale purchaser (an adult cotenant acting under a collusive plan) as holding title in trust for infant cotenants when the purchase was aimed at excluding the infants and was obtained at an inadequate price.
2. Whether a buyer may obtain specific performance of a contract to purchase land that includes infants’ interests when the contract has not been sanctioned by the Court of Chancery and the buyer has not shown the price is reasonably fair and beneficial to the infants.

## Decision

- The Court of Chancery of New Jersey held that Van Buskirk’s agreement to hold the land only for the adult heirs was ineffective and that equity raised a trust in favor of the infant grandchildren as well.
- The court denied Herbert Investment Company’s counterclaim for specific performance because a sale affecting infants’ estates required chancery approval, and the purchaser failed to prove the consideration was reasonably fair; the price was inadequate in light of the land’s value.
- Decree entered in accordance with the opinion.

## Legal Principles

- Adult cotenants in possession have a duty to protect the common title and may not use collusion and a judicial partition sale at an inadequate price to defeat the common rights of other cotenants, especially infants.
- When adult cotenants arrange for one of their number to acquire the property at a partition sale as part of a plan to exclude infant cotenants, equity will impose a constructive trust for the infants’ benefit.
- A contract to sell land that includes infants’ interests is not enforceable by specific performance unless sanctioned by the Court of Chancery; the court will not approve such a transaction unless it is to the infants’ advantage.
- The purchaser seeking specific performance bears the burden to show the consideration is reasonably fair; inadequacy of price is a basis to deny enforcement.

## Conclusion

The court refused to let adult heirs use a partition-sale scheme to cut infant heirs out of their shared ownership: it treated Van Buskirk as holding the title in trust for all heirs, including the infant grandchildren, and it rejected Herbert Investment Company’s attempt to compel conveyance because chancery approval was required to bind the infants and the purchaser did not show a fair, beneficial price for their interests.


Mosher v. Van Buskirk, 144 A. 446 (1929)