text:
    Bradt vs. Kirkpatrick and Wilson.
    Where it does not appear, from the face of the complainant’s bill itself, that the matter in controversy is beneath the jurisdiction of the court, the defendant can neither demur nor move to dismiss the bill on that account, but if he wishes to avail himself of that objection, he must bring it before the court by the pleadings on his part.
    It is sufficient in a creditor’s bill for the complainant to avef that the defendant has equitable interests, things in action, or other property of the value of $100 or more exclusive of all prior claims thereon, in the language of the 189th rule; but the more appropriate form of the averment would be to use the words of the statute, and aver that the value of the defendant’s equitable interests, &e. exceeds or is more than $100.
    The bringing of a. writ of error, and giving security for the payment of the debt and costs, after the filing of a creditor’s bill in the court of chancery, founded upon the judgment, does not necessarily stay the proceedings upon the bill; but the court of chancery in sUch a case may, upon a proper application, stay the proceedings, and dissolve the injunction so as to give-the defendant the control of his property, upon his giving security to pay the debt with interest and costs, including the costs in the suit in chancery, upon the affirmance of the judgment, or the dismissal of the writ of error.
    January 22.
    This was an application to dismiss the complainant’s bill for want of jurisdiction. A cross motion was made at the same time for the appointment of a receiver of the effects of the defendants. The bill was in the usual form of creditors’ bills; and the complainant, after setting forth the recovery of a judgment against the defendants for $145,76, the return of an execution unsatisfied,. and that the whole amount remained due, &c. averred that the defendants had equitable interests, things in action, or other property of the value of $100 or more, exclusive of all prior just claims thereon.

      J. V. N. Yates, for the defendants,
    insisted .that the bill should be dismissed, because the complainant had not averred therein that the value of the defendants’-assets was more than $100 ; the statute having directed the court of chancery to dismiss every suit concerning property where the matter in dispute did not exceed the value of $100. (2 R.S. 173, § 39.) He also read an affidavit, in opposition to the motion to appoint a recéiver, showing that since the commencement of this suit the defendants had brought a writ of error to reverse the judgment upon which the complainant’s bill was founded.

      H. C. Whelpley, for the complainant,
    insisted that as the averment in the bill was in the form prescribed by the 189th rule, the bill could not be dismissed on motion; neither was it objectionable upon demurrer. He also contended that the bringing of a writ of error, after the commencement of this suit, was no answer to the application for a receiver, as the security given upon the writ of error did not stay the proceedings here, and would not cover the costs of the complainant in this suit.
   The Chancellor.

The intention of the court in the adoption of the 189th rule, was to compel the complainant to insert an averment in his bill in such form as to show on the face of the bill itself that the amount in dispute, exclu-, sive of costs, exceeded $100. I perceive however, that by a mere inadvertence in substituting or for and, the language of the rule is not quite as broad as the statutory provision to which it was intended to conform. But as the averment in this bill is in conformity with the requirement of the rule, the defendant can neither demur nor move to dismiss the bill. According to the settled practice of the court as it existed previous to the adopting of this rule, the defendant could not demur or move to dismiss unless it appeared affirmatively upon the face of the bill that the matter in dispute was beneath the jurisdiction of the court of chancery; and not where it was left doubtful whether the value of the matter in controversy was more or less than the sum required. In ordinary bills, filed since the revised statutes, it is not usual to insert an averment as to the value of the matter in controversy; but the defendant, if he wishes to avail himself of the objection to the jurisdiction, must bring the question before the court by the pleadings on his part, w)ien the value of the property in dispute does not appear from the bill itself. Here the averment that the amount due on the judgment is considerably more than the sum required, and that the value of the defendant’s property or assets is $100 or more, leaves it doubtful, on the face of the bill, whether it may not exceed that sum ; and thus throws the burthen upon the defendants of denying that fact. The more proper form of inserting the averment in the bill, however, w'ould be to use the language of the statute, “ that the value of the defendant’s equitable interests, &c. exceeds, or is more than $100.” The application to dismiss the complainant’s bill must be denied. But as the defendant’s counsel has probably been misled by the language of the court in the casé of Smets v. Williams, (4 Paige’s Rep. 364,) which was used in a case where the averment was different and without adverting to the particular terms of the 189th rule, I shall not charge the defendants with costs of opposing the motion.

The bringing of a writ of error after the filing of a creditor’s bill here does not necessarily stay the proceedings in this court, even where the security upon the writ of error is given in such form as to make the sureties liable for the debt and costs in the court below as well as for the costs upon the writ of error. And it does not appear in this case what the form of the security given upon the writ of error was. But as the appointment of a receiver and the further prosecution of this suit will be a useless expense to both parties if the judgment should be reversed, the injunction in this case may be dissolved and further, proceedings stayed here until the decision upon the writ of error, upon the defendant’s giving a bond to the complainant in the penalty of $500, with two sufficient sureties to be approved of by the injunction master, conditioned to pay the amount of the judgment and interest, with the costs of this suit, upon the affirmance of the judgment of the supreme court, or the dismissal of such writ of error. And if such bond is not filed with the register, and notice thereof given to the complainant’s solicitor, within ten days, then a receiver is to be appointed with the usual powers ; and the defendants are to assign and deliver over their property to him on oath, under the direction of the master.


source: Caselaw Access Project

author: The Chancellor.

license: Public Domain

text:
    Vincent vs. Parker.
    Where a receiver was appointed of the rents and profits of real estate, a part of which rents and profits was not in controversy in the suit in which the receiver was appointed, but belonged to a third person, not a party to the suit, in right of his wife, and upon the application of the husband for the payment of that part of the fund to him the wife came in and claimed i(, on the ground that her husband had violated the marriage contract and that she had filed a bill against him for a divorce and for a restoration of her property acquired by the marriage; the court refused to decide the question between the husband and the wife upon that application ; but the share of the rents and profits belonging to them was directed to be paid into court, by the receiver, to the credit of the suit between the husband and wife, to abide such order or decree as should be made in that suit respecting the same.
    Although the court of chancery will not permit the possession of its receiver to be disturbed by a third person who is not a party to the suit, it will, upon the application of such third person, give such directions to the receiver relative to his trust as may be necessary to protect the rights of such third person.
    This case came before the court upon an appeal from a decision of the vice chancellor of the first circuit. The parties in this suit, or one of them, having an interest in certain premises which was in controversy, an order for a receiver was entered. Rene Halbert and his wife, in the right of the wife, were entitled to an interest for life in a part of the rents of the same premises; and a common agent had been appointed by them and the defendant to receive the rents, and to distribute the same according to their several rights. But upon the appointment of the receiver, the tenants were ordered to attorn to him; and the common agent was restrained from interfering with the collection of the rents. Halbert, in behalf of himself and wife, thereupon, presented a petition to the vice chancellor to modify the order in such a manner as to permit the common agent to collect the rents as before, or to permit the petitioners themselves to proceed in the collection thereof. The application was opposed by an affidavit on the part of the wife, showing that she had filed a bill against her husband for divorce, on the ground of his adultery, and claiming the equitable right to the whole of her share of the rents and profits of the premises, to the exclusion of her husband. The vice chancellor thereupon denied the application, and directed the receiver to proceed and collect the rents until further order. From this decision Rene Halbert appealed.

      January 22.

      C. F. Grim, for the appellant.

      C. Edwards, for the respondents.
   The Chancellor.

It is sometimes necessary to put a receiver upon property, where the interests of the parties to the suit are so connected with those of third persons that the necessary possession of the officers of the court conflicts with the legal rights of such third persons. But the court never divests a previous possession of such third persons unnecessarily. Even where the receiver is in possession, although the court will not permit him to be interfered with without its consent, such third persons are permitted to come in and be heard in relation to their interests. And the court will then make such order for the protection of the rights of such third persons, either through the agency of the receiver, or otherwise, as may be just and equitable. It would therefore have been a matter of course, in this case, to have directed the share of the rents and profits belonging to Halbert in the right of his wife, to be paid over to him by the receiver, had it not been for the opposition of the wife. But if he has been guilty of adultery, as she alleges in her bill, he has forfeited his right to the rents and profits of her estate, by this violation of the marriage contract. And if she succeeds in obtaining a decree for a divorce, she will be entitled, as a matter of course, to her veal estate ; and to the rents and profits thereof from the time of filing the bill, so far as he has not actually reduced the same to his possession. Although the husband has denied on oath the adultery charged, the court cannot, upon this petition, settle their conflicting claims without the expense of a reference. The vice chancellor was therefore ■ right in directing the receiver to collect the rents until further order; and in not allowing the husband to receive the same, without the assent of the wife, until such conflicting claims could be settled. I think, however, the vice chancellor should have, directed the share of the rents and profits belonging to the petitioners to be paid into court, to the credit of the suit between Halbert and his wife; subject to such disposition as the court might make thereof, upon the application of either of the parties in that suit. If that is done, the wife, if necessary, can be allowed alimony pendente lite out of that fundor the fund itself may be paid over to the husband, by an order to be made in that suit, upon his giving security to abide the order or decree of the court in relation to the same. The order appealed from, must therefore be so modified as to direct the receiver to pay that share of the rents and profits into court accordingly—deducting therefrom the same allowance for collection as the common agent would have been entitled to if he had collected the same under the former arrangement. But as the litigation upon this appeal is in fact between the husband and the wife, the'parties tp this suit having no interest therein, the costs of both parties on this appeal should be first paid out of that part of the rents and profits in the hands of the receiver. Only one bill of costs, however, is to be allowed on the part of both of the respondents.


text:
    Mitchell vs. Oakley.
    Where the complainant has a perfect defence at law, to a suit commencedagainst him there, if the allegations in his bill are true, the court of chancery, although it has concurrent jurisdiction with the court of law in relation to the subject of the:suit, will not, grant a preliminary.jnjunction for the . mere purpose of obtaining exclusive jurisdiction of the case,
    In cases of concurrent jurisdiction, a complainant may come into chancery for relief upon the final hearing of his caulse, if he thinks proper to do so subject to the power of this court to refuse him his costs where he files his bill here unnecessarily, instead of making his defence in the suit commenced against him in the court of law. But to entitle the complainant to a preliminary injunction in such a case, to stay the proceedings in a court of law, he must show by his bill that some injustice would be done him, or that he would be deprived of some legal or equitable right if his adversary was permitted to proceed in the suit at law.
    •Whether the purchase of a negotiable note at a greater discount than legal interest, from a person who was supposed to be the legal holder and owner thereof, but who was in fact the mere agent of the drawer, rendered the note void for usury in the hands of the purchaser, or whether such purchas er was protected to the extent of the money actually paid for the note under the provisions of the former revised statutes relative to usury; queere ?

    January 22.
    This was. an appeal from a decision of the,vice chancellor of the first circuit, dissolving an injunction upon the facts appearing upon the complainant’s bill. The bill was filed in- May, 1837. It stated that the complainant made a note payable to the order of J. H. Underhill, and entrusted it to the latter for the purpose of having it discounted at a bank, for the complainant’s benefit. But instead of doing this, Underhill sold it to the defendant, as his own, at a discount of two per cent a month for the time the note had to run.

      W. Silliman, for the complainant.

      C. O’Conner, for the defendant.
   The Chancellor.

There is no doubt, from the statement in the complainant’s bill, that Underhill has practiced a most atrocious fraud upon one or both of the parties to this suit. And if he obtained the money from Oakley on. the note, under the pretence that the note was his own, and under circumstances which would render the note void for usury in the hands of the latter if that pretence was not true, he ought unquestionably to be sent to the state prison for swindling. (2 R. S. 677, § 53. The People v. Haynes, 14 Wend. 546.) Independent of the question of usury, however, the complainant has no defence whatever to the note, either in law or in equity; as it is not alleged in the bill that at the time the defendant purchased the note, he knew or had any reason to suspect that Underhill was not the bona fide owner and holder thereof. And in relation to negotiable paper, the principle is well settled that where one of two innocent persons must suffer by the fraudulent acts of a third, he who by his carelessness has enabled such third person to commit the fraud must bear the loss. • Neither is it perfectly clear, even if the facts shall turn out to be as stated in the complainant’s bill, that the purchase of the note was usurious, and that the defendant is not entitled to the protection under the provision of the revised statutes which were in force at the time of his purchase, as a bona fide receiver and holder' of this negotiable note, to the extent of the purchase money actually paid for the same, with interest on that amount. (1. R. S. 772, § 5.) If the purchase of a negotiable, note from the payee before it was due, at a discount, should however be adjudged to be usurious, under the statute then in force, where it after-wards was discovered that it was not a valid note in the hands of the vendor, still the decision of the vice chancellor was right in dissolving the injunction. For this bill having been filed before the act of the 15th of May, 1837, to prevent usury, went into operation^ the decision of this court in the case of Livingston v. Harris, (3 Paige's Rep. 528,) is directly in point to show that the complainant is not entitled to the extraordinary aid of a preliminary injunction, to transfer the jurisdiction of the case from a court of law to this court, without an offer to pay what is equitably due. It is true, the revised statutes did not require an offer to pay what was equitably due as a necessary condition to the granting relief in this court, in a proper case for coming here. But even in cases of concurrent jurisdiction, where the complainant has a perfect defence in a court of law if he chooses to avail himself of it, this court will not grant a preliminary injunction, in the first instance, for the mere purpose of obtaining the exclusive jurisdiction of the case, and thus depriving the adverse party of his common law right of trial by jury. In cases of concurrent jurisdiction, a party may come into this court for relief upon the final hearing, if he thinks proper to do so ; subject to the power of this court to refuse him his costs when he takes the case from the jurisdiction of a court of law unnecessarily. (Gridley v. Garrison, 4 Paige’s Rep. 647.) But when he asks the interposition of the extraordinary power of this court, by means of a preliminary injunction, to deprive his adversary of the right of a common law trial as to the matters of fact in dispute between them, he must show by his bill that some injustice would be done him, or that he would be deprived of some legal or equitable right, if his adversary should be permitted to proceed at law.

The order appealed from must therefore be affirmed, with costs.


text:
    Lawrence and others, Trustees of the Pacific Insurance Company, vs. Bayard and others.
    Where an act of the legislature directed the proceeds of certain bank stock to be paid to the eldest son of B. who should be living at the death of L., and at the passage of that act, in 1831, B. had two sons living, both of whom survived L., and the eldest of the two sons after the passage of the act and before the death of L. sold and assigned his interest in the proceeds of the stock to H., a bona fide purchaser'; Held, that the eldest son.of B, at the time of the sale had a vested interest in the proceeds of the stock in the nature of a vested remainder, subject to be divested by his death during the life of L., and that his whole interest in the fund passed by the sale to H.
    By the provisions of the revised statutes, a mere possibility coupled with an interest is capable of being, conveyed or assigned at law, as well as in equity, in the same manner as an estate or interest in possession.
    January 22.
    This was an appeal by Willis Hall, one of the defendants, from a decision of the vice chancellor of the first circviit, refusing to dissolve or modify the injunction in this cause, so far as it affected the appellant’s rights. The subject of controversy, so far as Hall was concerned, was the one-fourth of the proceeds of 600 shares of the stock of the Bank of the United States, mentioned in the will of John G. Leake; which fourth was, by the act to incorporate the Leake and Watts’ Orphan House, passed in March, 1831, directed to be paid, upon the death of'Margaret Leake, to the then surviving oldest son of William Bayard the elder. (See Laws of 1831, p. 62, § 4.) At the time of the passage of that act, William Bayard had two sons, William and Robert, both of whom survived Margaret Leake and were defendants in this suit; of which sons William was the eldest. In February, 1829, the Pacific Insurance Company recovered against William Bayard the younger and Robert Bayard a judgment for a large amount; upon which an execution was issued, returnable on the twenty-ninth of the same month, and was returned unsatisfied. The insurance company was afterwards dissolved by an order of the chancellor, and the complainants were appointed trustees of its property and effects. In June, 1836, Margaret Leake having died a short time before, the complainants filed their bill in this cause as judgment creditors of William and Robert Bayard, to reach, among other things, the interest of William Bayard in the one-fourth of the proceeds of the United States Bank stock; to which bill Hall, the appellant, the executors of Leake, and the New-York Life Insurance and Trust Company, were made defendants, with William and Robert Bayard. Upon the filing of the bill, an injunction was issued restraining the defendants William and Robert Bayard from intermeddling with or transferring any of their property or effects, &c.; and the executors of Leake were also restrained from paying over any part of the legacy, or proceeds of the bank stock, to William Bayard or to any other person. The bill was taken as confessed against William Bayard. The other defendants put in their answers, to which replications were filed. From the answer of Willis Hall, it appeared that on the 30th of June, 1832, he made a bona fide purchase of William Bayard’s contingent interest in the proceeds of the bank stock, to which the latter would be entitled as the eldest son if he should survive Margaret Leake, and took a regular assignment. thereof under seal; that as a consideration for such-interest he agreed to give $12,000, payable in twelve annual payments# for which, at the time of such purchase, he* gave twelve 'separate notes of $1000 each, payable to the order of William Bayard; and that such notes had been regularly paid by Hall as they became due. Hall further, stated in his answer that he purchaséd of Robert Bayard his contingent interest in the legacy, to which he would béentitled as survivor if his elder brother died before Margaret Leake; and that he paid him $450 for such interest and took an assignment thereof.

      D. Graham, jun. for the appellant.
    The interest of William Bayard was assignable. Admitting it td be a mere possibility, the revised statutes 'expressly make it alienable. The provision in regard to real estate, by which expectant estates are descendible, devisable and alienable' in the same manner as estates in possession, (1 R. S. 725, § 35,) is adopted in regard to personal property. (1 R. S. 773, § 2.) If this be so, then there is an end to the question, for the estate had passed before the lien of the complainants was acquired, which was by the filing of the bill. (Beck v. Burdett, 1 Paige, 305, 309.) But if the estate of William Bayard was not alienable under these provisions, then it was at common law assignable in equity. (1 Preston on Est. 89.) And upon the principle that equity will regard as done what it would compel to be done, it will be considered as assigned immediately on the vesting of the estate ; and in such case, there being no lien upon it, the assignment was free from incumbrance and absolutely vested the property. But even if the complainants had acquired a lien, the equity of Hall being prior to theirs would be protected,' at least in a court of equity. The rule of this court on the subject is, that judgment creditors have no preference over prior equitable clainis against the estate of the debtor. (In the matter of Howe. 1 Paige. 125. Keirsted v. Avery. 4 Idem. 9, 15.) Upon the same principle, therefore, and upon much stronger reason, where the lien of a party is merely equitable, will it be postponed to a prior equitable lien upon or conveyance of the premises upon which it is sought to make it operate.

      R. Sedgwick, for the respondents.
    The purchase of Hall was a clear fraud upon the complainants and all the other creditors of William Bayard. The judgment of the complainants for $10,594 09 was recovered in 1829. On the 30th June, 1832, Hall took an assignment for the nominal consideration of $12,000 of all the interest of William Bayard in 600 shares of stock of the Bank of the United States, it being worth $20,000. And the $12,000 consisted of twelve notes of $1000 each, payable in twelve successive years to William Bayard or order. This arrangement was intended on the part of Bayard to hinder and delay creditors, by taking for an interest, which was soon to come to his possession or to that of his assignee of the value of $20,000, the promissory notes of Hall without security, made payable at such distant periods that they would be worth very little to W. Bayard’s creditors. The assignment to Hall conveyed nothing but an interest under the will, A reference to the act of the legislature in relation to the will will show that no property could pass thereby. W. Bayard’s interest, such as it was, existed under the act. His interest was an interest limited to the survivor of his father’s two sons, and was therefore a naked possibility, and could not pass by assignment. (See Pelletreau v. Jackson, 11 Wend. 120; 13 id. 178, J. Tracy’s opinion.) There-vised statutes, 1 R. S. 725, § 35, & 773, § 2, do not alter the case. The first section cited refers to real estate; the second to the duration, not the quantity or transferribility of the estate. There was no covenant of any sort in the assignment by W. Bayard. This was necessary to transfer a future contingent interest. (1 Vesey, 413. 4 Wendell, 619.)
   The Chancellor.

It does not appear upon what ground the vice chancellor denied the appellant’s application ; but 1 i i * * presume it must have been upon the ground that the defendant Hall had not distinctly and explicitly denied the charge of fraud as contained in the bill. It appears to me, however, that the complainants did not intend to swear to the charge of fraud in so direct and positive a manner as to entitle them to a preliminary injunction, interfering with the rights of Hall, on that ground ; although it may be a sufficient averment in pleading to put the fact in issue, so as to authorize them to introduce proof on the subject, if the fraud should not be admitted by the defendants. There is no fact charged in the bill, or admitted in the answer, from which it is possible forme to form any opinion whether the $12,000 was either more or less than the value of Wm. Bayard’s contingent interest in the reversion of this stock. That value must depend upon the probability which existed in 1832 of a renewal of the charter of the Bank of the United States; without which it could not well be presumed that W. Bayard’s interest in the stock, even if he survived Mrs. Leake, would be any thing more than the par value thereof. And to form any opinion of the value of this contingent remainder, depending on the chances of survivorship, it is necessary to know what were the ages and the state of health of the several parties; .so as to be able to calculate not only the chances of survivorship but also what then was the probable period of the continuance of the life estate of Mrs. Leake. A knowledge of the actual death of Mrs. Leake in 1836, and of the value of the stock at that time, when such value had been greatly increased by the result of a popular election in Pennsylvania, do not aid us in the least in determining the value of W. Bayard’s contingent interest four years previous. The amount paid for Robert Bayard’s contingent interest, and whether the payment was in money or otherwise, are matters of no consequence here, except so far as the amount paid by Hall shows what he supposed Robert’s chance of being the survivor at the death of Mrs. Leake really was. Upon the face of this bill, therefore, I cannot see that the . right of Hall to the one-fourth of the 600 shares of bank stock was so impeached as to entitle the complainants to an injunction to prevent the executors of Leake from paying over the same to him or to his mortgagees. The bill, so far as his rights under the assignment are concerned, appears to be a mere fishing bill. And upon the coming in of his answer, showing that he had fairly purchased W. Bayard’s interest in the stock long before the complainants had obtained any legal or equitable lien thereon, I think the injunction should have been dissolved.

There is no foundation for the objection that the interest of W. Bayard was of such a nature that it could not pass by sale or assignment before the death of Mrs. Leake. It was not a'mere naked possibility, or even a mere possibility coupled with an interest; but it was a vested remainder in one-fourth of the 600 shares of the bank stock, according to the statutory definition of vested remainders. For W. Bayard was the person in being and ascertained who would, at the time of the assignment in 1832, have had an immediate right to the possession- of such bank stock if the life estate of Mrs. Leake therein had then ceased. (See 1 R. S. 723, § 13.) He was the oldest son; to whom this remainder in fee was limited, subject only to be divested by his death during the continuance of the particular estate or interest of Mrs. Leake and in the lifetime of his brother Robert. The limitation of the remainder in fee to W. Bayard was therefore vested in interest. But I admit the substituted remainder to Robert necessarily remained contingent so long as his elder brother was living. Nothing could defeat W. Bayard’s right to the bank stock or its proceeds as an interest in possession, if he continued to live until the life interest of Mrs. Leake terminated. And it is the present capacity of the individual to take the remainder in possession, if the particular estate should immediately determine, which vests his remainder in interest; and not the absolute certainty that such remáinder will ever in fact become vested in possession in him. (Per Nelson, C. J. 16 Wend. Rep. 137. Watk. Law of Conv. 123, 8th Lond. ed. 5 Paige’s Rep. 466.) And nobody ever doubted that a remainder which was vested in interest could be transferred, both at law and in equity.

. . , , . Again; the revised statutes, which were m operation wben this sale was made, have declared in express terms, that expectant estates are descendible, devisable and alienable, in the same manner as estates in possession. (1 R. SL 725, § 35.) And by an examination of the several provisions of the revised statutes it will be seen that by the term “ expectant estates” the legislature intended to include every present right or interest, either vested or contingent, which may by possibility vest in possession at a future day. The mooted question, whether a mere possibility coupled with an interest is capable of being conveyed or assigned at law, is therefore forever put at rest in this state.

Besides; there never was a doubt that any interest whatever in personal property, or a mere possibility coupled with an interest in real estate, was assignable in equity. (Whitfield v. Fausset, 1 Ves. sen. 391. Wright v. Wright, Idem. 411.) And if the contingent interest in this stocky passed even in equity to Hall, under the assignment of 1832, his prior equity must prevail; as the complainants could not acquire any equitable lien upon property of this description until the filing of their bill here, in 1836. (Beck v. Burdett, 1 Paige’s Rep. 305. Edgell v. Haywood, 3 Atk. 857.)

The question whether the complainants can reach the amount due upon the several notes which remained unpaid at the time of the commencement of this suit, is not now before the court on this appeal. If they belonged to W. Bayard at that time, Hall certainly could not safely pay them to him after he had notice of the equitable lien which the complainants had acquired by the filing of their bill. But as the notes were negotiable, if they had been transferred to a bona fide holder before that time, or if he is obliged to pay them to a bona fide holder to whom they have been since assigned by Bayard in violation of the injunction, Hall cannot be compelled to pay them the second time. Even if the notes are still under the control of W. Bayard, or in the hands of a receiver appointed in this cause, that cannot affect Hall’s right to the bank stock, before the notes have become payable, and when there is no pretence m the bill that he is irresponsible.

The order of the vice chancellor must therefore be reversed with costs; and the injunction must be so modified as to permit the executors of Leake to transfer the bank stock, or the proceeds thereof, to the appellant, or to his assignees or mortgagees.


text:
    The Reformed Protestant Dutch Church in Garden-Street vs. Mott and others.
    The statute of Elizabeth relative to charitable uses was never in force in the state of New-York. But independent of that statute the court of chancery-had an original jurisdiction to enforce and compel the performance of trusts for pious and charitable uses, when the devise or conveyance in trust was made to a trustee capable of taking the legal estate.
    The conveyance to certain individuals, of the site of the Dutch Church in Garden-street, in the city of New-York, in 1691, in trust for the use of the ministers, elders and deacons of such church and their successors, and to have a house of public worship erected thereon and for no other use whatever, was a valid conveyance at the common law to a charitable and pious use ; and the court of chancery has original jurisdiction to enforce the performance of the trust. No violation of the trust upon which the property was conveyed, therefore, can have the effect to revest either the legal or equitable title to the property in the heirs of the original grantor.
    Where real estate is conveyed to trustees in trust for the use of a church or congregation, as a place of worship, which church or congregation is after-wards incorporated, the court, after a great lapse of time, will presume a conveyance from the original trustees, or their heirs, to the corporation.
    An act of the legislature by which the legal title of a mere naked trustee is declared to be transferred to and vested in the cestui que trust, who previously had the power to compel such transfer by an application to the proper tribunal, is constitutional and valid. Where therefore, real estate was held by individuals in trust for a Dutch church, which was incorporated previous to the passage of the act of March, 1801, relative to religious corporations, the effect of that act was, to transfer the legal title to such estate from the trustees directly to the corporation.
    The act relative to religious corporations gives to such corporations an unlimited power to convey real estate which is held in trust for the corporators; provided the consent of the court of chancery to the alienation is given, as authorized by that act.
    A bill for a specific performance is not to be dismissed upon the mere ground that the complainant’s title was not perfect at the time of filing such bill; although the defendant may be entitled to costs, where he has made no unreasonable objections to the title. A specific performance may be decreed if it appears by the report of the master that the complainant is then in a situation to give a perfect title, except in cases where the purchasers have been materially injured by the delay.
    January 22.
    The bill in this cause was filed, to compel the specific performance of a contract of sale to the defendants of a lot in the city of New-York, a part of the site of the Low Dutch Church in Garden Street, destroyed by the great fire in 1835. The only question in controversy between the parties was as to the power of the complainants to give to the defendants, as purchasers, a perfect and unincumbered title to the premises, The cause was brought to a hearing upon bill and answer, and upon certain documentary evidence referred to in the bill and admitted in the answer; and was argued in June 1837, by

      Geo. Wood, for the complainants, and

      Henry R. Storrs, for the defendants.
   The Chancellor.

To understand the various questions raised on the hearing, and which were so fully and ably discussed in this case, it is necessary to advert to the early history of the title under which the complainants claim the right to sell and convey the premises in question, for the benefit of their church and congregation, under the order of this court authorizing a sale. It appears that on the 18th of February, 1691, the corporation of New-York conveyed to Samuel Bayard a lot on the north side of Garden Street, now Exchange Place, being 180 feet in front on the street, and including the premises in question in this cause. And that a few days thereafter, S. Bayard conveyed the same premises to S. Van Cortlandt, N. Bayard and J, Kipp in fee ; for the purpose of having a church or suitable building erected thereon, for the common use of the Ministers, Elders and Deacons of the Low Dutch Church, which then were or at any time thereafter should be within the city of New-York, professing the canons of the national synod of Dort; as well for the public and solemn worship of God, as the exhortation and instruction of the people of that church in and to true religion and virtue. The conveyance was declared to be in trust, that the grantees and their heirs and assigns should keep, enjoy, possess and hold the lot and premises thereby conveyed, to and for the general use of the ministers, elders and deacons of such Low Dutch Church and their successors, and to no other use or uses whatever. This was unquestionably a valid conveyance to a charitable or pious use, at the common law ; and vested the legal title to the premises in the trustees, absolutely and irrevocably, to and for the secondary uses therein declared. And this court, independent of the statute of Elizabeth relative to charitable uses, which was never acted upon in this state, had an original jurisdiction to enforce and compel the performance of the trust. As the statute of Elizabeth had a retro-active effect, and as we have very few reports in chancery previous to that time, it is difficult to find adjudged cases on this subject which are not in some way dependent upon the provisions of that statute. This fact had led some judges to suppose the court of chancery had no jurisdiction on the subject previous to that time. The general jurisdiction of this court, however, to compel the grantee of the legal estate to apply it to the use of the individuals for whom it was intended by the grantor, v?as well established long before that time. It is also a matter of history, that during the protracted struggle between the different princes of the red and of the white rose for the national sovereignty, much of the landed property in England was held under conveyances which could only be made available to its real owners by the exercise of such a jurisdiction. And as devises, donations and bequests to pious and charitable uses, which were well known to the civil law, were common in England, long before the statute of Henry the eighth had turned ordinary uses into legal estates, it would indeed be strange if the court of chancery had not at that time assumed the same jurisdiction over conveyances and bequests to charitable and pious uses, as it had over conveyances to the use of particular individuals. There is one case that I have been able to find, decided in 1581, nearly twenty years before the passing of the statute of charitable uses, which shows clearly that the court of chancery was in the habit of sustaming defective conveyances to charitable uses, as a part its ordinary jurisdiction, previous to the statute 43d Elizabeth. I refer to the case of the charitable use under the will of Symons, the Winchester alderman; where Lord Chancellor Bromley compelled the heir to execute a conveyance of real estate devised to a charitable use, in conformity to the intention of the testator; the deed of bargain and sale which the testator himself had executed to the trustee, being void for want of enrolment. (Duke on Char. Uses, 163.) The case of The Mayor & Burgesses of Reading v. Lane, (Toth. 32,) decided the same year the statute was passed, was also most probably a case depending upon the general jurisdiction of the court as it existed before the statute; as it is hardly possible that a case could have gotten before the court upon an appeal from a decision of commissioners appointed under the statute, at so early a day.

In 1696, the persons for whose use this conveyance in trust was made, were duly incorporated by a royal charter, by the name of The Ministers, Elders 8? Deacons of the Reformed Protestant Dutch Churchin the City of New-York; for the avowed purpose, among other things, of enabling them to hold this property for the uses to which it had been conveyed to the trustees. And this and other property was in and by that charter confirmed to them by the representatives of the crown. Although this confirmation was not necessary to to give the church and congregation the use of the property vested in their trustees, it probably was considered necessary to enable the corporation to take and hold the legal title ; as the annual value of other property which the corporation might thereafter purchase or acquire was limited by the charter. And such confirmation certainly is evidence from which a presumption may arise, after a lapse of 140 years, that the trustees actually conveyed the legal title to such corporation. The case of the corporation of Reading v. Lane, above referred to from Tothill, and which is likewise reported by Duke, is also a case in point to show that where there was an appropriate corporation, whose general duty it was to administer the charitable use, and which was legally authorized to hold the legal title and to receive and apply the rents and profits accordingly, this court had the power to compel a conveyance of the trust property to such corporation. Although the defendants therefore have no knowledge of the execution of a conveyance by the trustees to the corporation which was subsequently lost, and do not admit the same, yet as the corporation has always possessed and enjoyed the property, and as there was no reason whatever for keeping the legal title in the original trustees, or their heirs, after the confirmation thereof to the cestue que trusts as a corporation by the charter of 1696, the legal presumption is that such a conveyance was executed by the trustees, as alleged by the complainants.

Independent of such legal presumption, however, the 4th section of the act of March 1801, to provide for the incorporation of religious societies, (1 R. L. of 1801, p. 339,) was sufficiently comprehensive in its terms to transfer the legal title of this property from the heirs of the original trustees to the corporation, if it had not before been conveyed. The second section of that statute declared that the ministers, elders and deacons of every reformed dutch church or congregation then existing, or thereafter established, should be the trustees thereof $ and it authorized such congregations as were not then incorporated, to incorporate themselves in the manner therein prescribed. The 4th section then provided that the trustees of any church, congregation or society previously mentioned in the statute, which of course included this church or congregation incorporated in 1696 and recognized in the same section as an existing corporation, might take into their possession and custody all the temporalties, and might recover, hold and enjoy all the debts and real and personal estate belonging to the church, congregation or society, in whatsoever manner the same might have been acquired, or in whose name soever the same was held, as fully and amply as if the right or title thereto had been originally vested in such trustees. The necessary effect of this statute therefore was to transfer td this corporation the legal title to all property which was then held in the name of bthérá Upon a mere naked trust for the use of the church or congregation, or of the corporators. That the legislature had the power to transfer the legal title from the mere naked trustees to the cestui que trusts, after the latter were incorporated, in a case where the trustees might themselves be compelled to make such a transfer under a decree of this court, there cannot be any room for doubt. (See 1 R. S. 727, § 47; Morgan & others v. Leslie, Wright's Ohio Rep. 144.) There is no doubt therefore in the present case, that previous to the separation of the complainants from thé collegiate churches, in 1812, the legal as well as the equitable title to the premises in Garden street was absolutely vestéd in the corporation of such collegiate churches, for the use of its corporators. And no subsequent violation of the trust upon which the property was held, can ever revest either the legal or equitable title in the heirs of Samuel Bayard, or in the heirs of the original trustees ; although a palpable breach of trust might form a proper ground for an application to the court of chancery, on the part of the corporators, or by the attorney general, to compel the due éxecution of the trust. This therefore disposes of the first objection to the complainants’ title.

The complainants having become incorporated as a separate and distinct church or society, in 1812, under an agreement with the remaining branch of the original church or society, the corporation of the collegiate churches, in 1813, gave to them a lease of the church and premises in Garden street for the term of 999 years, upon a peper-corn rent, to hold the premises as a site for a church and as a place of interment; subject to various restrictions and conditions for the purpose of rendering the use of the premises, and the doctrines and discipline of the church which should worship there, conformable, as far as might be, to the original trusts upon which the property was held. But after the destruction of the church by the great fire, the corporation of the collegiate churches conveyed to the complainants the absohite title to the premises, for a full consideration of #100,000. It is not necessary therefore to enquire here whether the severance of the church property and the lease of this part of it to the complainants, was such a violation of the trust upon which the property was held as to have authorized any of the corporators of the collegiate churches to interfere. I am inclined to think it was ; as no application was made to this court to sanction such a transfer of the property, without consideration, and upon trusts different from those upon which the property was held by the terms of the original charter and of the act of 1801 before referred to. There is no doubt, however, that the legal title to the premises passed to the new corporation for the 999 years by virtue of that lease. There was no law in force at that time to prevent a corporation, or any other trustee, from conveying the legal title to property held in trust, in such manner as to vest it in the grantee, subject to the equitable right of the cestue que trust to reach and control the same at any time afterwards by the power of this court, if the land had not passed into the hands of a bona fide purchaser discharged of the trust. The complainants’ title to the property does not depend upon the validity of the lease of 1813, but upon the conveyance of 1836. For that reason also it is perfectly immaterial whether the yearly value of the property in 1813, was more or less than the sum of #3000; that being a much less sum than the amount to which the complainants were restricted when the deed of 1836 was executed.

I apprehend that the complainants’ counsel has entirely misunderstood the intent and meaning of the act of March 1806, authorizing religious corporations to convey their corporate property under the sanction of the chancellor. (Laws of 1806, ch. 43, § 4.) At the common law every corporation aggregate had an unlimited power over its property, and might alienate the same in fee, or grant any lesser estates therein, without limitation or restriction. (Coke Litt. 44 a, 300 l; Smith v. Barrett, 1 Siderf. 161; Per. L. Mansfield, 1 Bur. Rep. 221.) And the same general power as to corporations, is recognized in the recent revision of the laws of this state. (1 R. S. 599, § 1, sub. 4.) Certain statutory provisions had, however, been enacted in England, at a very early day, to restrain the alien-f cration of church property, which tact was sufficient to render it doubtful whether they were not applicable to church property here. But the principal difficulty which existed, was the general power which this court had, to control the application of property given or devised to corporations and others for charitable uses, so as to render the legal estate in the hands of a purchaser, with notice of the trust, chargeable with the charitable use to which it was originally devoted. And as the law of patronage had never been extended to this state and was inconsistent with the spirit of our institutions, it became necessary to vest in some tribunal the power of sanctioning alienations of church property, for the benefit of those who were the real owners of the-same, and to direct a new investment of the proceeds, without the expense and. delay of an application to the legislature in every particular case. I have no doubt therefore that the intention of the act of March, 1806, was to give to every religious corporation an unlimited power to convey any real property held by them in trust for the corporators; provided the previous consent of this court to such alienation of the church property, and a direction for the proper application of the proceeds thereof for the benefit of the corporators was obtained, in the summary mode which is there prescribed.

If such a sanction of the sale of the premises in question to the complainants, and a proper direction for the investment and application of the purchase money had been given in this case, previous to the conveyance of May 1836,1 should have compelled the defendants to take this title notwithstanding the other objections thereto. But as the statute had prescribed the mode in which the sanction of this court to a conveyance of property by a religious corporation should be obtained, I have great doubts whether the subsequent ratification of the sale was sufficient to give a perfect title, discharged in equity of the charitable trust or use. At all events it would be unreasonable to compel a purchaser to take such a title, when there can be but little doubt that the title can be made perfect at a trifling expense, in the usual mode. From the statement in the bill, and the admission in the answer, it is evident that the annual value of the Garden Street property, in its present state, does not exceed the amount prescribed for the complainants’ corporation in the act of 1819.

It is not a matter of course, however, to dismiss a bill for specific performance merely because the title was not perfect at the commencement of the suit; although that may be a sufficient reason for giving costs to the defendant, if he has not made any unreasonable objection to the title. A specific performance may be decreed, if it appears by the report of a master that a perfect title can be made to the purchaser at the time of malting such report, unless the purchaser has been materially injured by the delay.

It must therefore be referred to Master Codwise to inquire and report whether the complainants are now able to make a perfect title to the defendants of the lot in controversy, And upon the coming in of the master’s report, if it appears that a perfect title can then be made, there must be a decree for a specific performance, upon payment of costs to the defendants. But if such conveyance of a good and unincumbered title cannnot be made, the bill must be dismissed with costs.

       See the case of Morden College, C. P. Cooper’s Rep. 36.


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    Bates vs. Lyons.
    A creditor’s bill may be filed, upon a judgment at law, after the return of an execution unsatisfied, although the complainant has brought a suit upon such judgment and recovered a new judgment thereof.
    This was a creditor’s bill in the usual form, founded upon a judgment recovered in the superior court of the city of New-York. The defendant pleaded in bar of the suit, that after the return of the execution issued out of that court unsatisfied, the complainant brought a suit against him upon the judgment in the second judicial circuit of the state of Indiana, and recovered a new judgment thereon in the last mentioned court for debt and costs; by means of which recovery, the defendant insisted that the original judgment in the superior court of New-York was annulled or rendered . . inoperative.

      March 6.

      J. Rhoades, for the complainant.

      K. Miller, for the defendant.
   The Chancellor.

When the case of Mitchell v. Bunce was before this court, upon an application to discharge a ne exeat, (2 Paige's Rep. 606,) an opinion was intimated that a subsequent recovery of a new judgment in a foreign court, in an action of debt founded upon the judgment here, would have the effect to merge the original judgment in the last recovery. Upon subsequent examination and reflection, however, I am satisfied that intimation was wrong; and that the recovery of a second judgment, which is in its nature no higher security than the first, does not absolutely extinguish the prior judgment. The supreme court of this state has frequently decided that an execution might be issued upon the original judgment, for the purpose of obtaining satisfaction thereof, notwithstanding the subsequent recovery ; although but one satisfaction could be obtained for the debt. (11 John. Rep. 513. 1 Cowen's Rep. 178. 5 Wend. Rep. 129. 9 id. 53.) As the courts of law consider the original judgment in full force, until sufficient property has been levied on or money raised to satisfy the same, it must be considered and treated asa subsisting judgment here, for the purpose of giving the judgment creditor relief in this court in aid of his execution at law.

There is no pretence in this case that any part of either judgment has been paid, or that the complainant by reason of his recovery in the state of Indiana has obtained a lien upon property there sufficient to satisfy the original judgment in the superior court of New-York. The plea must therefore be overruled with costs; and the defendant must pay such costs and put in his answer within 30 days.


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    Bank of Orange County and another vs. Fink and others.
    Where F. being in embarrassed circumstances and suits being pending against him, conveyed his real estate to T., in trust to sell the same, and out of the .proceeds to retain a large debt due himself, and to apply the residue in payment of other creditors; and T. permitted F. to retain the possession 4 or 5 years under a nominal lease to his son, without exacting the payment of any rent, and until after several judgments had been recovered against F. for debts contracted previous to the conveyance; it was held that the conveyance was fraudulent and void as against the creditors of F.
    It seems that on an appeal from a final decree made in a suit before a vice chancellor, the merits of ail interlocutory decree made in such suit cannot be inquired into; especially where the time for appealing from the interlocutory decree has expired.
    In August, 1823, the defendant P. Fink, being in embarrassed circumstances, and a large judgment being about to be entered up against him, conveyed his real estate to the defendant Townsend in trust to sell the same, and out of the proceeds to retain a large debt alleged to be dub to himself, and to apply the residue of the proceeds to other creditors. The assignee, instead of selling the property, permitted Frink to retain the possession four or five years, uhder a nominal lease to his son A. H. Fink for most of thé time, and until after the complainants severally had recovered judgments against P. Fink, for debts contracted previous to such conveyance. Townsend having then advertised the property for sale, and the complainants having taken out executions upon their judgments, claiming a lien upon the land on the ground that the conveyánce was fraudulent and void as against creditors, an arrangement was entered into between the parties, in writing, by which it was agreed that the property should be sold discharged of the lien of the judgments; and that a portion of the proceeds of the sale, or of the bonds and mortgages taken for the purchase money, should be deposited with the cashier of the Orange County Bank, as a substitute for the land itself, to abide the event of a suit in equity, to be brought by the complainants, to test the validity of their liens by virtue of their several judgments. The land was sold and the securities deposited accordingly; and the bill in this case was then filed in pursuance of the agreement. To which bill P. Fink and Townsend, together with A. H. Frink the son, were made parties defendants. The cause was afterwards heard upon pleadings and proofs before J. Emott, the late vice chancellor of the second circuit; who in June, 1830, made an interlocutory decree in favor of the complainants ; in which he declared and decreed that they were entitled to the payment of the amount due on their respective judgments against P. Fink, out of the land conveyed to Townsend ; and therefore, that under the agreement recited in the decree, they were entitled to have their judgments paid and satisfied out of the proceeds of the bonds and mortgages constituting the special fund provided for that purpose by the agreement of the parties. And it was referred to a master to compute and ascertain the amount due to the complainants for the principal and interest of their respective judgments ; and all further directions were reserved until the coming in and confirmation of the master’s report. No appeal was taken from this decree ; and after the report of the master came in, the cause was heard upon such report, and for the purpose of obtaining a final decree upon the equity reserved. In October, 1830, the vice chancellor made a final decree, confirming the report of the master, and directing the amounts due upon the judgments of the complainants respectively, together with their costs, to be paid out of the proceeds of the bonds and mortgages substituted in the place of the land by the agreement of the parties. And he directed the residue of such proceeds to be paid to the defendant Townsend. In April, 1831, more than nine months after the entering of the interlocutory decree settling the rights of the complainants to the payment of their judgments out of this special fund, the defendants Townsend and Philip Fink, appealed from the final decree of the vice chancellor confirming the master’s report and directing such payment in conformity to the rights of the parties as established by the previous decree.

      March 6.

      S. J. Wilkin & H. G. Wisner, for the appellants.
    J. W. Brown & I. R. Van Duzer, for the respondents.
   The Chancellor.

From the conclusion at which I have arrived on the main question in this cause, I do not deem it necessary to give any definitive opinion upon the question, whether the merits of the interlocutory decree can be inquired into upon this appeal. The statute, for reasons which are perfectly obvious, has limited the right of appeal from interlocutory orders and decrees to fifteen days. It is evident, however, that this statutory limitation is a mere nullity, if an appeal from the final decree in the cause necessarily brings up for review before the appellate court every interlocutory order, made' in the course of a long litigation, which has had any effect whatever in producing the final result. It is a general ride, that upon an appeal from any order or decree of the inferior tribunal, the appellate court is to make such a decree as the court below ought to have made when the decree or order appealed from was entered. Where the court below therefore, upon the papers before it at the final hearing, is authorized to go back and correct an erroneous proceeding connected with the matter then under consideration, the appellate court may itself go back and correct such error; if the court below was called on by the appellant to make the correction but neglected to do so. But if the situation of the cause was such at the final hearing, that the court below could not, upon the papers then before it and according to the settled course of proceeding, go back for the purpose of looking into the matter of the alleged error in a previous order or decree, it would be a violation of all principle for the appellate court to reverse the final decree, because the court below at the time of making such decree had not done what it had then no power to do. In other words, the final decree cannot be erroneous, so as to justify a reversal of it, upon an appeal from that decree alone, if at the time it was made the court below had no legal right to make any other, consistently with the justice and equity of the case as then presented for consideration and decision. And any attempt of the chancellor to convert a nominal appeal from the final decree of a vice chancellor, in such a case, into an actual appeal from an interlocutory order or decree which had been previously made in the cause, after the time for appealing from such interlocutory decree had expired, would be a virtual repeal of the statute limiting the right of appeal from interlocutory orders and decrees to fifteen days. It is true, the chancellor is expressly authorized upon the héaring of an appeal, to annul, áfñrm, modify or alter the order or decree appealed from, or to make any other order in the cause, as justice may require. (2 R. S. 178, § 68.) But certainly this provision of the revised statutes could not have been intended to give to the chancellor an original jurisdiction, to make an order or decree upon the appeal which the vice chancellor was not authorized to make at the time the cause was heard before him ; unless something had occurred, subsequent to the hearing of the cause in the court below to change the rights of the parties from what they weré at that time. The court for the correction of errors, in the recent case of Mitchell v. Lenox & others, (14 Wend. Rep. 662,) by a formal resolution, which is not mentioned in the report of the case, decided that the jurisdiction of the chancellor upon an appeal from a decree of the vice chancellor was strictly appellate, and that the question as to the affirmance or reversal of the decree must be decided under the same evidence and papers on which the vice chancellor’s decision was founded. From this determination of the court of dernier resort, it is clearly inferrible, that if the final decree of the vice chancellor was right upon the papers before him upon the final hearing, and was the only decree which it was proper for him to make upon the case as then presented for his decision, the chancellor has no right to reverse such final decree on the ground that some previous order or decree in the cause, which was not appealed from within the time allowed by law for that purpose, may have been erroneous. ,

1 he decision ot the court for the correction of errors in the case of Le Guen v. Gouverneur & Kemble, (1 John. Ca. 498,) is perfectly consistent with these principles. In that case, a question of fraud was raised by the pleadings, and an issue was directed to try the question. By a subsequent agreement of the parties, this order for a feigned issue was virtually waived for the purpose of submitting to the court a question which had not been raised when the issue was directed; to wit, whether the complainants were estopped from raising the question of fraud, by the result of a previous decision in a court of law. This was a virtual rehearing of the cause upon the merits; and the chancellor decided against the defendant upon the question of estopple, and reaffirmed his decision directing an issue to try the question of fraud. And as the appellate court were of opinion that the decision of the court below was wrong, both as to the question of estoppel and as to the propriety of awarding a feigned issue upon the evidence adduced upon the hearing, they made such a decree as the chancellor ought to have made upon the last hearing before him, and dismissed the bill with costs to the defendants upon the proceedings in the court below.

In the present case, I think no one who is conversant with chancery proceedings would seriously contend that the vice chancellor upon the hearing of the cause upon the equity reserved, which was a mere question of costs and a direction to pay the amounts as ascertained by the master, was authorized to reverse the decision and decree which he had previously made, settling the right of the complainants to be paid out of the fund in question. And if the vice chancellor had no power to reverse such interlocutory decree upon the final hearing, when no such question was presented for his consideration, I do not perceive upon what principle the chancellor is authorized upon this appeal from the final decree to reverse that decree as erroneous. Indeed I should have had no doubt whatever on the question, had it not been for the decision of the court for the correction of errors, in the case of Jaques v. The Methodist Church, (17 John. Rep. 548.) The court in that case appears to have arrived at the conclusion, that as the chancellor had the power upon a proper application to rehear and modify any interlocutory order or decree previous to the making of the final decree in the cause, the appellate court, upon an appeal from such final decree, had in certain cases a right to do the same thing; even where no application had been made to the chancellor on the final hearing to alter or modify such interlocutory order or decree. But even in that case, C. J. Spencer admits there are some interlocutory orders which must be appealed from within the fifteen days limited for that purpose by the statute. If it was ever permitted to this court to question the correctness of any decision of the court of dernier resort, I might be allowed to say, that the learned chief justice in that case had followed the practice of the house of lords in England, without adverting to the change which has been necessarily made in this state by our statute, limiting the right of an appeal from an interlocutory order or decree to fifteen days. In England, there was no statutory limitation whatever for an appeal, either from an interlocutory or a final decree. But by a standing order of the house of lords, no appeal from any decree was to be received after five years from the signing and enrolling of such decree. (Sydney on Appeals, Append. 13.) As there was no limitation of the right to appeal from an interlocutory decree which was not capable of enrolment, until after five years from the time of making the final decree which was enrolled, the common practice in England was, upon an appeal from the final decree, to complain also in the petition of appeal of any previous proceedings in the cause connected therewith, so as to bring the whole up for review before the appellate court. The time for appealing to the house of lords being regulated by rule merely, and not by any positive statutory provision, it was also competent for that court to dispense with its own rule, and to go back and open any interlocutory proceedings in the case as justice might require, although such proceedings were not in terms embraced in the appeal from the final decree. In this state, however, the time for appealing, both from interlocutory and final decrees, is limited by the legislative power, which no court is at liberty to disregard. The statute, in express terms, declares that all appeals other than appeals from final decrees, shall be made within fifteen days. (2 R. S. C05, § 78, 79.) As this statute prevents a party from appealing, in terms, from an interlocutory decree after the fifteen days, it would be a mere evasion of the statute to permit him to do indirectly what he is not allowed to do directly ; that is, to appeal in fact from an interlocutory decree which settles the merits of the cause, under pretence of appealing from the final decree which, in itself, is not errroneous as to any matter which was before the court for decision when such final decree was made. In relation to the decision in the case of Jaques v. The Methodist Church, it is also proper to observe it was seriously questioned in a subsequent case in the same court, by Mr. Justice Sutherland, although he finally placed his decision in the case then before the court upon another ground. (Kane v. Whittick, 8 Wend. Rep. 233.) As I have no doubt as to the correctness of the vice chancellor’s decision upon the merits of the case at the time he made the interlocutory decree, so that the final decree was correct even if it was competent for the court at that time to reverse the decision which had previously been made and acquiesced in, I shall leave the construction of the statutory provisions limiting the right of appeal to be finally settled by the court of dernier resort, should that court differ with me upon the merits of this case.

I think there cannot be a doubt, that the object of Fink, in executing the deed to Townsend, was to delay and hinder some of his creditors from enforcing a sale of his property and to keep possession thereof for a longer time than the fifteen months allowed for redemption from such a sale. The story as to the verbal agreement to pay nearly #7000 moré than was mentioned in the writings upon the conveyance of the farm, provided the payments were not made on the precise days specified, although not impossible is highly improbable. Even if this story is true, the parties improperly inserted a larger sum in the deed of trust than was actually due to Townsend at the date thereof; as the interest should have been deducted on the payments secured by the mortgage which were not on interest, and which would not become due for some two or three years thereafter. Again; the suffering the grantor to retain the possession of the farm three or four years was presumptive evidence of fraud; and no good reason is shown to prevent its being considered as conclusive evidence of fraud. The execution of nominal leases to the son, at a rent of two or three per cent upon the actual value of the property, the payment of which rent was never enforced, and when the father continued in possession as the ostensible owner and manager of the property, was too shallow a device to deceive any one as to the real intent of the parties. And the attempt to cover up Ihe transaction by the execution of these secret leases to the son, and without enforcing payment even of the small rent reserved thereon, is of itself a strong evidence that Townsend the grantee was an intentional participator in the fraudulent designs of Philip Fink to delay his creditors. On the whole, there are too many circumstances of fraud and suspicion in this case, to induce me for a moment to suppose that the deed of Fink can be sustained as an honest assignment for the sole benefit of his creditors. The vice chancellor was therefore right in deciding as he did, that the judgments were liens upon the farm, and ought to be paid out of the fund provided for that purpose by the agreement of the parties.

The decree of the vice chancellor must therefore be affirmed with costs, to be paid by the appellants.


text:
    Jesup vs. Hill and others.
    Where L. had been arrested on a ne exeat and had given the usual bail to the sheriff upon such arrest, and afterwards, by an agreement between him and the complainant, the ne exeat was discharged upon his executing the usual bond to answer the bill and abide the decree; it was held, that as L. had not in his agreement reserved his right of questioning the propriety of issuing the ne exeat, he was precluded from moving that the bond be given up and cancelled upon the ground that the ne exeat was improvr dently issued.
    The giving the usual security to the sheriff upon a ne exeat does not preclude the defendant from applying upon the bill only, or upon the coming in of the answer, to have the writ discharged and the bond to the sheriff given up and cancelled.
    But where the defendant, for his own convenience, applies to the court and gives the usual bond, without asking to reserve the right of applying to cancel the bond, the right to raise the question as to the propriety of holding him to bail originally will be deemed to be waived.
    Tins was an application on the part S. Lounsberry, one of the defendants, to have a bond given by him and his sureties for the performance of the decree in this cause given up and cancelled. Lounsberry had been arrested upon a ne exeat and had given bail to the sheriff. Afterwards, by agreement of the parties, the ne exeat was discharged, upon his executing the usual bond, to answer the complainant’s bill and to abide the decree which should be made in the cause.
    March 6.

      L. H. Palmer, for the complainant.

      S. Glover for the defendant Lounsberry.
   The Chancellor.

As all the lands to which the controversy in this cause relates are within the jurisdiction of the court, the complainant, upon a bill properly framed, would probably be able to obtain the relief to which he is entitled, without the aid of a ne exeat, if he could obtain a discovery and enforce obedience to the injunction which he has obtained. It is not necessary, however, for the court to pass upon the question as to the propriety of issuing the writ originally; as I think the defendant has precluded himself from raising that question here, by his agreement with the adverse party. If he wished to reserve to himself that right, he should have made it a part of the agreement that the bond should be delivered up, provided the court, upon an application for that purpose, should be of opinion that the writ of ne exeat was improvidently issued.

The giving of the usual security to the sheriff, upon a ne exeat, does not preclude the defendant from applying to the court, upon the bill only, or upon the coming in of the answer, to discharge the writ and to have the bond to the sheriff given up and cancelled. But where the defendant for his own convenience has applied to the court and given the usual bond, to answer the bill and to render himself amenable to its process during the progress of the cause, and to abide the final decree, without asking to reserve the right of a future application to cancel that bond, the right to examine the question as to the propriety of holding him to bail originally must be considered as abandoned. The execution of this bond under a voluntary agreement with the adverse party to discharge the writ of ne exeat upon the giving of such a bond, must, for the same reason, be considered as having the like effect. Where the defendant is in custody, and wishes to be discharged upon giving the usual bond before he has an opportunity to move to discharge the ne exeat upon the merits, he should state the facts in his application to the court, and ask permission to give such bond, to relieve himself from imprisonment, without prejudice to his lights.

Motion denied with costs;.


text:
    James Adams and others, vs. Robert M. Winne and others.
    Where W. by his will devised to his two sons certain portions of his real estate, and charged them with the payment of his debts, and also devised ceitain other portions of his real estate to his two daughters, and then gave all the rest of his property to his lour children to be equally divided between them, and after the making of his will, he sold and conveyed one of the lots devised to his daughters, for $3300, and received on the sale one sixth of the purchase money and a bond and a mortgage on the lot sold for the residue, and W. the testator died leaving the bond and mortgage uncollected ; Held, that the sale of the lot and taking back the bond and mortgage for the purchase money was a revocation of the devise of the lot to the two daughters, and that the bond and mortgage passed to the four children under 1 ho residuary clause in the will.
    The provisions of the revised statutes relative to implied revocations of wills of real estate, do not extend to the case of an actual conversion into personal property of the real estate devised, subsequent to the making of the will, by selling and conveying the testator’s whole interest in the land and taking back a bond and mortgage for the purchase money, or a part thereof-
    The bill in this cause was filed by the two daughters of Moses Winne deceased, together with their husbands, claiming the whole beneficial interest in a bond and mortgage given to the decedent in his lifetime, and asking for an injunction to restrain the collection thereof for the benefit of his residuary legatees, under the following circumstances: In October 1834, the testator made his will in due form, and thereby devised to his two sons certain portions of his real estate, and charged them with the payment of his debts; and certain other portions of his real estate he devised to his two daughters the complainants. After making .a provision for his wife who afterwards died before the testator, he devised and bequeathed all the rest of his properly real and personal of which he should die seized or possessed, to his four children, to be equally divided between them. In March I83G, after the death of his wife, the testator sold and conveyed to the defendant Dagget one of the lots so devised to the two daughters, for the consideration or price of $3000. Of this sum the purchaser paid down one sixth, and gave his bond and mortgage to the testator upon the same premises for the residue, $2,500; of which sum $1000 was to be paid on the first of May then next, and the residue on tj,e first 0f August thereafter, with interest after the first of May. The testator died in June 1836, leaving the whole amount of the bond and mortgage uncollected. After the death of the testator, the complainants claiming the whole benefit of the bond and mortgage, under the devise of the lot for the purchase money of which the bond and mortgage had been afterwards taken, gave notice to the mortgagor not to pay this debt to the executors; upon which he declined paying the same. But the executors being advised by counsel that the bond and mortgage were personal estate, and as such belonged to the residuary legatees of the testator, commenced a suit at law upon the bond, to recover the amount thereof, for the purpose of disposing of the money in that way when collected. Upon which the bill in this cause was filed, and the complainants applied for an injunction to restrain such proceeding at law.

      March 6.

      H. Z. Hayner, for the complainants.
    A. Taber, for Dagget, the mortgagor.

      S. Stevens, for the other defendants.
   The Chancellor.

In the decision of this case I lay entirely out of question what is stated in the answers of the two sons of the testator, as to the distribution of the money received upon the sale of this lot equally by the testator between the sons and daughters ; also what is therein stated as to the donation to the daughters, before the sale of this lot, of the personal property bequeathed as a specific legacy to their mother. As to the debt due to C. Vanderheyden, and the testator’s supposed intention to have that debt paid out of the money secured by this bond and mortgage, that two sons do not claim that there was such a specific appropriation of this fund for the purpose, by the testator in his lifetime, as to exempt them from the payment of that debt, which is charged upon them as devisees of a part of the real estate. And if they did, such a claim could not bé sustained.

If the conversion of real estate into personal property, by an actual conveyance of the same and the taking back a bond and mortgage for the purchase money, is not of itself a presumptive revocation of a devise of such real estate, the devisees cannot be deprived of their right to the same, under the will, by the introduction of parol evidence of an intention of the testator to revoke. But under the provisions of the revised statutes, evidence is admissible to show the situation of the testator’s property at the time of making his will, and the changes which took place therein after-wards, for the purpose of enabling the court to determine, as a question of law, whether a devise of real estate was revoked, or a specific legacy was adeemed, either wholly or in part, by a partial or total destruction or change of the subject matter of the devise or bequest. Parol evidence of an actual intent to revoke a devise or bequest, which revocation could not be implied by the court from a mere knowledge of the different situations of the testator’s family and property at the time of making his will and afterwards, is however wholly inadmissible. In other words, extrinsic evidence must be admitted to prove the material facts upon which the legal question of revocation depends. But if the court, after being placed in the situation of the testator by a knowledge of all those material facts, is not authorized as a question of legal construction to declare that the devise or bequest was revoked or adeemed, other evidence to show the actual intention of the testator cannot be received. On the other hand I believe the revised statutes have settled the principle, which before had been left in doubt by the conflicting decisions of courts, that where the law presumes a revocation from a change in the testator’s family or property after the making of his will, parol evidence of actual intention to the contrary is not admissible to rebut that presumption. (See 2 R. S. 64, § 43, and Revisers’ note.)

The only question in this case therefore is a mere question of law, as to the effect of a subsequent sale of real estate and the taking back a bond and mortgage for the purchase money, upon the rights of those to whom the estate was devised by a will previously made. On the part of the executors and of the two sons who are interested as residuary legatees, it is insisted that by the sale and conveyance, after the making of the will, the devise of this lot was absolutely revoked, and that the proceeds of the bond and mortgage must be distributed as a part of the testator’s residuary estate. The complainants on the contrary contend, that by the taking back of the mortgage on the same premises for a part of the purchase money, simultaneously with the execution of the conveyance to the purchaser, the testator’s estate or interest in the property previously devised was merely altered, but not w'holly divested ; that under the 47th section of the article of the revised statutes, which contains certain general provisions applicable to wills of real and personal property, (2 li. S. G5,) the devise to the two daughters of this particular lot was only revoked as to that pan of the purchase money which was received by the testator in his lifetime ; and that they arc therefore entitled to the amount which remained due upon the bond and mortgage at his death.

Previous to the revised statutes, a devise of real estate, whether general or specific, was in the nature of an appointment of the specific estate which the testator had at the time of making his will; but to take effect only at his death, and giving to the testator the absolute control over the same in the meantime. It was therefore, like a bequest of a specific legacy of personal estate, liable to be revoked or adeemed by a total destruction or an entire change of the estate or property which was the subject matter of the bequest or devise. It necessarily followed from the adoption of this principle, that when the testator entirely changed the nature of the property devised, or parted with all his interest in the same subsequently to the making of his will, there was an implied revocation of the devise ; even though he might afterwards have acquired a similar interest in the same property by a new purchase thereof, or otherwise. But where the subsequent disposition was of a partial interest in the subject matter of the devise merely, but leaving the residue of the estate devised still in himself, it was only a partial revocation or ademption, to the extent to which the estate was disposed of or changed, and the devise remained good as to the residue. And as there was a marked difference between real and personal estate in many respects, it also followed - from the principle before mentioned, that when the testator had converted real estate, which he had devised as such, into personalty, or had converted the subject of a specific bequest of personal property into real estate, there was a revocation of the will or an ademption of the bequest so far as the nature of the property was changed. To this extent I apprehend the legislature intended to leave the law unchanged by the section of the revised statutes above referred to ; except in the case of a mere equitable conversion of the subject of the devise, by a covenant or contract to sell the same, which case is provided for by the 45th section, (2 R. S. G4.)

There was another class of cases, however, in which the courts of England, by departing from the true principle of implying the revocation of a devise only in- case of an actual instead of a mere constructive ademption of the subject matter of the testator’s bounty, and by the adoption of arbitrary rules not founded upon any correct principles of construction, had almost uniformly defeated the actual intentions of the testator. Some of these cases were referred to by Chief Justice Eyre, in the very able and satisfactory opinion delivered by him in the case of Cave v. Halford, (3 Ves. Jun. 662.) Although he differed with his associates as to the application of one of those arbitrary rules to a part of the case then under consideration, he was nevertheless constrained to admit that some of those rules, which evidently defeated the probable intent of the testator, had become settled rules of property which the legislative power alone had a right to change. The result of a departure from the true principle upon which the implied revocation by ademption was originally based, and of an adherence to these arbitrary rules and subtle refinements, in defeating the intention of the testator by a constructive revocation of his will, is very clearly and forcibly pointed out by the revisei’s, in their note to the 47th, 48th and 49th sections of the revised statutes as finally adopted. I have no doubt therefore that this class of cases alone was intended to be reached by the adoption of the two first of these sections ; the 49th being only applicable to an unsettled question of implied revocation of an entirely different character.

Before the passing of the revised statutes it was well settled that an actual conversion of real property into personalty, as by the sale of land and taking a bond and mortgage thereon for the purchase money, was such an ademption or destruction of the specific property devised as to revoke a previous will of such property as real estate. And even an equitable conversion of the real estate devised, by the making of a valid agreement to sell the same but without parting with the legal title, was deemed a revocation in equity. Both of the cases came within the general principle upon which the implied revocation of a devise, by ademption of the subject matter thereof, was originally based. And as the legislature has altered the law as to the last only, I feel bound to declare that the will of the testator was absolutely revoked as to the lot sold by him, and upon which this bond and mortgage were taken, for a part of the purchase money agreed to be paid upon the sale of such lot. The bond and mortgage are therefore a part of the testator’s residuary personal estate; and the proceeds thereof, when collected, must be distributed as such by the executors.

The application on the part of the complainants for an injunction must be dismissed with costs.