text:
    In the matter of the Eagle Iron Works.
    Where there is an order of the court referring it to a master to report a proper person to be appointed a receiver of the property of a defendant, or of a corporation, or the committee of a lunatic, &c. and to approve of the sureties to be given by such receiver or committee, the appointment is not complete until it is confirmed by the special order of the court.
    But where the master is directed to appoint a receiver and take from him tiie requisite security, no order for the confirmation of the appointment is necessary; and the receiver upon filing the master’s report of his appointment, and the bond taken by such master, may immediately enter upon the duties of his office.
    Where the master appoints a receiver, if either party is dissatisfied with the appointment, the proper course is, to make a special application to the court for an order that the master review his decision. But the court will not set aside the appointment made by the master, unless the person selected by him is legally disqualified; or his situation is such as to induce a belief that the interests of the parties will not be properly attended to by him.
    Upon a voluntary dissolution of a corporation, any of its officers or stockholders may be appointed receivers, if not otherwise disqualified.
    May 19.
    This was an appeal from an order of the vice chancellor of the first circuit, confirming the master’s report of the appointment of receivers of the Eagle Iron Works, upon a voluntary dissolution of that corporation. It appeared from the petition, for the dissolution of the company, that the corporation was insolvent. Upon the reference to the master to appoint a receiver, or receivers, some of the creditors nominated N. Waterbury, the late president, and S. Leeck, the book-keeper of the company, for such receivers ; and the appellants, who claimed to be a majority of the creditors, nominated J. H. Cornell. The master, after hearing the proofs of the respective parties, approved of the two first as receivers ; and took from them the requisite security, which was filed with his report of the appointment. The creditors who had nominated Cornell, thereupon filed exceptions to the report; which exceptions were overruled by the vice chancellor, and the report of the master was confirmed. From that decision the creditors last mentioned appealed,

      G. W. Morris, for the appellants.

      Nye Hall, for the respondents.
   The Chancellor.

The solicitor for the appellants mistook the practice of the court, in supposing that it was proper to file exceptions to the master’s report of his appointment of the receivers. Where it is referred to a master to report a proper person to be appointed a receiver of the property of a defendant, or of a corporation, or the committee of an idiot or a lunatic, and to approve of sureties to be given by such receiver or committee, the appointment is not complete until it is confirmed by the special order of the court. But where the master is directed to appoint a receiver, and to take from him the requisite security, no order for the confirmation of the appointment is necessary. (Bowersbank v. Collasseau, 3 Ves. 164.) In such cases the master, after approving of the receiver and of the sureties to be given by him, takes the requisite bond and files it with his report of the appointment, stating that he has approved of the bond, and that is duly filed. And upon filing such report, the appointment of the receiver is complete, and he may immediately enter upon the duties of his office. (1 Smith’s Ch. Prac. 490. 1 Grant’s Ch. Prac. 264. 2 Brown’s Ch. Prac. 838. Edwards on Receiv. 80.) If either party is dissatisfied with the appointment made by the master, the proper course is to present a petition to the court, upon due notice to all the other parties who have appeared and who are interested in the appointment, stating the grounds of objection to the receiver, and praying that the master may review his report. (1 Smith’s Ch. Prac. 491. Edwards on Receiv. 81.) As the vice chancellor, however, appears to have affirmed the decision of the master without reference to the form in which the question was brought before him for his decision, I shall proceed to examine the case upon its merits ; for the purpose of seeing whether there was such manifest error in the appointment made by the master, as to render it proper to direct the master to review his report.

The court will not disturb the decision of the master, appointing a receiver, merely because it may think he might have made a better selection among the several candidates proposed. To induce the court to interfere, the applicants must either show that the person appointed by the master is legally disqualified, or that his situation is such as to induce a belief that the interests of the parties will not be properly attended to by him. (Wynne v. Lord Newborough, 15 Ves. 383.) In the present case, although the corporation is insolvent, the creditors are not the only persons interested in the appointment of the receiver. It appears by the petition for the dissolution, that the company was organized under the general act of March, 1811, authorizing incorporations for manufacturing purposes. The seventh section of that act makes those who were stockholders at the time of the dissolution of the company individually liable for the debts of the corporation, to the extent of their stock, if the funds of the company should not be sufficient for the payment of its debts. Those stockholders, therefore, have a deep interest in having the concerns of the company closed up in such a manner as to relieve them from individual responsibility. And as the statute relative to voluntary dissolutions has authorized the appointment of officers or stockholders of the corporation, as well as other persons, as receivers, if they are not otherwise disqualified, I see no valid objection to the appointment of the president and book keeper to be the receivers in the present case.

I have not been able to find any thing in the papers before the vice chancellor showing that the insolvency of the company was occasioned by the fraud or mismanagement of either of these officers; or that either of them had assigned any of the property, under circumstances which would render it necessary or proper for the receiver to institute proceedings against these officers personally to recover back the value of the property. The judgments confessed by the attorney of the corporation being absolutely void as against the receivers, there is no difficulty in their instituting proceedings, against those creditors who have taken the property and caused it to be illegally sold, to recover hack the value of the property. The principle adopted in the case of The Attorney General v. The Bank of Columbia, (3 Paige’s Rep. 511,) might have been proper to be applied to this case if the proceedings had been instituted under the previous article of the revised statutes, as an adversary proceeding against the company and its officers. But it is not applicable to this proceeding, under the article relative to voluntary dissolutions, where the legislature has in express terms authorized the officers of the corparation to be appointed receivers.

The decision of the vice chancellor must therefore be affirmed, with costs.


source: Caselaw Access Project

author: The Chancellor.

license: Public Domain

text:
    Parker vs. Browning.
    If a receiver takes possession of goods, under the express directions of the court, or where the master has decided that the goods are in the possession and under the control of the defendant, arid has directed the defendant to deliver the possession to the receiver, the court will assume the exclusive jurisdiction of the subject, and will not suffer the receiver to be sued at law for taking such goods.
    Where a complaint is made against an officer of the court of chancery for misconduct, while acting Under color of authority merely, the court may either itself take cognizance of the complaint, and administer justice between the parties, or may allow the party aggrieved to bring his suit at law for the alleged injury.
    A receiver is under no obligation to attempt to take property from the possession of a third person, or even from the defendant himself, by force, with, out an express order of the court directing him to do so.
    The receiver or party who wishes an actual delivery of the property, should call upon the master to decide what property, legally or equitably belonging to the defendant, and to which the receiver is entitled under the order of the court, is in the possession of the defendant or under his power or control. And it is the duty of the master to direct the defendant, to deliver to the receiver the actual possession of all such property, or to allow him to take possession thereof. If the defendant is dissatisfied with such decision of the master, he must apply to the court to review the decision, or he will be compelled by process of contempt to comply with the mas. tor’s directions.
    Where the property is in the possession of a third person, who claims the right to retain it, the receiver must either proceed by suit against him, or the complainant must make him a party to his suit, and apply to have the receivership extended to the property in his hands; so that an order may be made for its delivery, and may be enforced by process of contempt.
    Where the property is legally and properly in the possession of the receiver, it is the duly of the court to protect such possession, not only against vio lenco, but also against suits at law. But if the property is in the possession of a third person, under a claim of title, the court will not protect the officer, who attempts by violence to obtain possession, any further than the law will protect him; his general authority being unquestioned.
    May 19.
    This was an appeal by W. H. Willard, the receiver appointed in this cause, from an order the of vice chancellor of the first circuit, upon the petition of Lester, Holmes & Co. authorizing them to bring an action against the receiver, and other persons acting under .him, for an alleged trespass, in forcibly entering a store which the petitioners claimed to belong to them, and to be in their possession, and taking the goods therein, and retaining the same until they paid into court in this cause the sum of $1000, to abide the further order of this court.

      R. J. Dillon, for the appellant.
    N. Dane Ellingwood, for the respondents.
   The Chancellor.

There is certainly room for doubt in this case, whether the defendant Browning had not some interest in the store of goods. And if the receiver had taken possession thereof under the express directions of the court, or if the master had decided that the goods were in the possession and under the power and control of the defendant, and had directed him to deliver the possession thereof to the receiver, this court ought to have assumed the exclusive jurisdiction over the subject of complainant, instead of suffering its officer to be harrassed in a suit at law for obeying its order. (2 Story’s Eq. 176, § 891.) But as I understand the case, the validity of the order appointing the receiver is not in controversy here, nor is his the property of the defendant Browning, as such receiver, intended to be questioned. The petitioners, on the contrary, claim that the receiver, without any direction to that effect from the court, has forcibly taken goods which belonged to them exclusively, out of their possession, under the pretence that such goods were the property of the defendant Browning. Where the authority of the court or the construction of its order is not in question, but the complaint is made against the misconduct of its officer, acting under color of authority merely, this court may, in its discretion, either take to itself the cognizance of the complaint and do justice between its officers and the parties aggrieved, or it may permit the latter to bring a suit at law for the alleged injury. (Aston v. Heron, 2 Myl. & Kean, 390.) And in cases of this description it is more in accordance with the spirit of our institutions to permit the parties complaining to proceed at law, where they may have the benefit of a jury trial, than to attempt to settle their rights by a reference to a master.

It is not necessary in any case for the receiver to put himself in a situation where he is not entitled to the full protection of this court j as he is under no obligation to attempt to take property out of the possession of a third person, or even out of the possession of the defendant himself, by force, and without an express order of the court directing him to do so. The proper course, as this court has repeatedly decided, where the defendant is directed to deliver over his property to the receiver under the direction of a master, is for the receiver, or the party, who wishes for an actual delivery of the property in addition to the legal assignment thereof, to call upon the master to decide, upon the examination of the defendant, and on the evidence before him, what property legally or equitably belonging to the defendant, and to which the receiver is entitled under the order of the court, is in the possession of the defendant or under his power and control. And it is the duty of the master to direct the defendant to deliver over to the receiver the actual possession of all such property, in such manner and within such time as the master may think reasonable. Where such a direction is given, the defendant, if he is dissatisfied with the decision of the master, must apply to the court to review the same, or he will be compelled by process of contempt to comply with that decision. And if the property is in the possession of a third person who claims the right to retain it, the receiver must either proceed by suit, in the ordinary way, to try his right to it, or the complainant should make such third person a party to the suit, and apply to have the receivership extended to the property in his hands; so that an order for the delivery of the property may be made which will be binding upon him, and which may be enforced by process of contempt, if it is not obeyed. Where the property is legally and properly in the possession of the receiver, it is the duty of the court to protect that possession, not only against acts of violence, but also against suits at law ; so that a third person, claiming the same, may be compelled to come in and ask to be examined prointeresse suo, if he wishes to test the justice of such claim. But where the property is in the possession of a third person, under a claim of title, the court will not protect the officer who attempts by violence to obtain possession, any farther than the law will protect him ; his right to take possession of property of which he has been appointed receiver, being unquestioned.

The only difficulty in the order of the vice chancellor, in the present case, therefore, arises from the fact that the $1000 had been paid into this court to abide its decision ; and that the order permits the suit at law to be brought generally, for the whole alleged injury, without making any provision for the disposition of that money, in the event of a decision one way or the other. The order should have directed that, in the event of a recovery against the receiver, the money paid into court, under the agreement, should be- applied in part payment of the damages recovered for the alleged injury in taking forcible possession of the property of the petitioners and retaining it until that sum was paid into court. The petitioners should also have been required to stipulate to abide the result of their suit at law against the receiver ; and that if they failed to recover, on the ground that the transfer of the property to them was fraudulent as against the creditors of Browning, the fund in court should be delivered over to the receiver, as the property of the defendant Browning, for the purposes of the suit in this court.

With this modification the order must be affirmed, without costs to either party on the appeal; and the proceedings are to be remitted to the vice chancellor.


author: Whittelsey, V. C.

text:
    Beebe and others vs. Coleman and Allen.
    Where B. purchased a lot of land from W. and took a deed therefor which was recorded shortly afterwards, and a few days previous to the purchase, W. gave a written lease of the premises to C. for two years, at a rent of $800, for which notes were given to W. and the lease gave the lessee the privilege of cutting and carrying away all the wood and timber on the lot, and B. purchased without notice of this lease, but the lessee was in actual possession of the lot when B. purchased ; Held that the lease being for a term not exceeding three years, and the right to take off the timber^ being limited to its continuance, it was not within the provision of the revised statutes requiring conveyances of lands to be recorded, to render them valid as against subsequent bona fide purchasers; also Held, that as the right to distrain for the rent was given in the lease, the title tothe notes given for the rent, as well as the title to the land, passsed to B. by the deed of W, and that C. might be compelled to pay the notes to B. as a part of the rent reserved, unless the notes had passed into the hands of bona fide purchasers; and that if W. had subsequently parted with th notes to bona fide holders, he would be personally liable to B. for the amount, whether he did or did not convey with warranty to B.
    This was an appeal from an order of the vice chancellor of the eighth circuit, dissolving an injunction. Beebe, one of the complainants, was the owner of a lot of land in the town of Gates, the principal value of which, consisted in the wood and timber standing and growing thereon ; and the other two complainants were the assignees of a mortgage which Beebe had given upon the same lot to secure the payment of a debt. The bill was filed to restrain the defendants, who were in possession of the premises, from committing waste by cutting down and carrying off the wood and timber. Beebe purchased the premises from A. Wentworth, on the 9th of November, 1839, and took a deed, which was recorded shortly after-wards ; and on the same day he gave the bond and mortgage which was afterwards assigned to the other complainants. A few days previous to the conveyance to Beebe, Wentworth, the then owner of the lot, gave a written lease thereof to the defendants, for the term of two years and five months, at a rent of $800, and interest thereon from the date of the lease, for which notes were given, payable nt the time specified in the lease. This lease stated that the lot was covered with standing timber, except about four acres which had been chopped over, and that the lessees were to have the privilege of cutting and of taking away, during the term, all the wood and timber on the premises, except that which was already cut. The complainants alleged that Beebe purchased, and the other complainants took the assignment of the mortgage, without any notice of the claim of the defendants to the timber. And their counsel insisted that the lease not being recorded, the privilege of taking off the timber from the premises, during the term, was void as against them. But the defendants in their answer stated that they were in the actual possession of the premises under the lease, and were engaged in cutting the wood and timber thereon, at the time the deed to Beebe and his bond and mortgage were given.
   The following opinion was delivered by the vice chancellor :

Whittelsey, V. C.

This injunction should not have been allowed by the vice chancellor acting as master without the bond required by the 31st rule. I allowed the injunction in the first instance, but I have a strong impression, amounting almost to a certainty, that the injunction was applied for in open court at a special term, but the clerk not being present, a fiat was made on the bill in the usual mode, without a statement that it was made in term time. But, however this may be, it is competent to retain it, and it would be retained by allowing a bond to be filed nunc fro tunc, if the equity of the case satisfies me that the injunction should be retained. Neither do I think the misjoinder of the parties complainant, urged by the defendants’ counsel, any reason for dissolving the injunction. A great portion of the value of the land consisted in the growing timber ; and if this was wholly about to be removed, the injury would clearly to that extent be irreparable. The case presented by the bill would authorize an injunction, and the injunction would stand, if the case now stood where the bill left it. The lease, or instrument called a lease, was executed by Wentworth, then owner of the fee, November 3, 1839, to the defendants, who went into possession under it November 8. Wentworth conveyed to Beebe by deed dated November 9, which was delivered November 16. If the first instrument was a lease, it being for a less term than three years, it would be operative in the hands of the defendants without record, and no notice was necessary for the protection of the defendants interested. The defendants would hold without notice to the complainants and without having their lease recorded. It was not recorded. The complainants contend that this instrument called a lease was not such in point of fact, but that it was a grant of an interest in real estate which the statute required to be recorded, to protect this interest against the claim of a subsequent bona fide purchaser. The defendants insist in their answer that the complainants, or one of them, had actual notice of the execution and existence of this lease before the deed from Wentworth was executed. But this averment is made upon information and belief and is not sufficiently positive ; neither does the affidavit attached to the answer speak upon this point. It is apparent from the papers, that either the lessees under the instrument called a lease, or the purchasers under the deed, must suffer in their rights. The lessees were in possession before the deed, and this is to a certain extent notice j and though there may be some doubt whether the instrument under which the defendants claim is a technical lease, yet I shall dissolve the injunction, costs to abide event.

J. Rhoades, for the appellants.

A lease is a contract for the possession and profits of lands and tenements on the one side, and a recompense of rent or other income on the other. (4. Cruise’s Dig. 51. 4 Bac. Ab. p. 1.) A lease for years does not convey to the lessee any other, or greater, interest in the premises than the occupancy and use of the land, for the time specified in the lease. An instrument which conveys to the lessee, in addition to the possession and profits of the premises for a period of years, a large quantity of valuable wood and timber growing on the premises at the date of the instrument, must be regarded as something more than a simple lease for years. The lease in this case is one of this class. The trees and timber growing on lands belong to the owner in fee, and are considered a part of the freehold- and parcel of the inheritance ; and the law does not favor the severance of them from the freehold. (1 Cruise’s Dig. 64.) A grant or devise of an interest in growing wood is a grant of an interest in the soil itself. (13 Pick. R. 44.) Ownership of trees and timber standing on a lot of land, with a right to cut and carry away the same forever, is an estate of inheritance with an exclusive interest in the soil, so far as may be necessary for the support and nourishment of the trees, and ingress and egress to take them away. (4 Mass. R. 226.) The estate which the defendants acquired under their lease was more than a chattel interest. And the lease being more than a simple lease for years, was not embraced in the exception contained in 2 R, S. ch, 3, pt. 2, § 36. Every instrument in writing by which any estate or interest in real estate is created, aliened, mortgaged or assigned, or by which the title to any real estate may be affected in law or equity, except last wills and testaments, leases for a term not exceeding three years, and executory contracts for the sale or purchase of lands, shall be recorded, &c. (2 R. S. ch. 3, pt. 2, § 1, 38.) The lease in this case not having been recorded, was void as against subsequent purchasers in good faith and without notice. If a bond ought to have been filed by the complainants, on obtaining the injunction, the court may order a bond now to be filed, nunc pro tunc,

J. V. L. Pruyn, for the respondents.

The injunction was irregularly issued, because no bond was filed by the complainants. (Chancery Rule, 31. Sullivan v. Judah, 4 Paige’s Rep. 444. Cayuga Bridge Co. v. Magee, 2 Id. 122. 2 R. S. new ed. 117, § 155.) Beebe had, an adequate remedy at law; he might bring ejectment, and then an order to stay waste would be granted on application. (4 Wendell, 208. 11 Id. 160.) There is a misjoinder of parties complainants. Beebe claims in fee; Dows and Carey are assignees of the mortgage given by him. The lease being for a period of less than three years, was operative without being recorded ; and no notice to the complainants was necessary. If the instrument was more than a lease, and contained a grant of an interest in real estate which the statute required to be recorded, still the defendants will hold as against the subsequently recorded deed ; because the complainants had notice of their claim before the deed was delivered, and because the defendants were in the actual possession of the premises, &c. prior to the "deed. If a vendee is in possession of lands, under a contract to purchase, a subsequent purchaser or mortgagee has constructive notice of his equitable rights, and takes the land subject to his prior equity. (Governeur v. Lynch, 2 Paige’s Rep. 301.) An answer will be sufficient to dissolve an injunction, if it sets forth circumstances disproving the facts of the bill, although it does not positively deny them. (3 Eq. Dig. 459.) An injunction to stay waste will not be granted where the right is doubtful, or where the defendant is in possession claiming adversely. (Storm v. Mann, 4 John. Ch. 21, 22. 13 Pick. 44. 4 Mass. R. 226. 1 Cruise’s Dig. 118.)

The Chancellor. The vice chancellor was undoubtedly right as to all the technical objections to the injunction. The complainants had a common although not a joint interest in staying the destruction of the timber on the premises, and were properly joined in the suit. And as there was no affidavit that the injunction was allowed upon the certificate of the vice chancellor acting merely as an injunction master, and without requiring security, the legal presumption was that the clerk had done his duty, and that the injunction had not been irregularly issued. Although it was a proper case to have required security, yet if the vice chancellor allowed it as the judge of the court before whom the bill was filed, the clerk was bound to obey the order ; and the issuing the injunction was regular. The vice chancellor, even in that case, however, might have ordered the injunction to be dissolved, unless the complainants would then give security to pay the defendants’ damages in case the bill was not sustained.

Upon examination of the instrument under which the defendants claim the possession of the premises, and the right to take off the timber during the term, I am of opinion that it is a lease of the premises for a term not exceeding three years. And as the right to take off the timber is limited to the continuance of the lease, it is not within the provision of the revised statutes requiring conveyances of lands, except leases not exceeding three years, to be recorded, to render them valid as against subsequent bona fide purchasers. Although the rent was secured by notes, the right to distrain for the same was also given. The title to the notes given for the rent, therefore, as well as to the land itself, passed to Beebe by the conveyance of Wentworth of the 9th of November, 1839. And the defendants may be compelled to pay those notes to the cornplainants, as a part of the rent reserved in the lease, unless the notes have gone into the hands of bona fide purchasers thereof, as negotiable securities. If Wentworth has parted with them, so that his grantee of the land will not be able to recover the rent of the lessees, he will be personally liable for the amount, whether he did or did not convey the land with warranty. There is no allegation in this case that the defendants colluded with Wentworth, to purchase this timber by means of a secret lease, for the purpose of defrauding the purchaser from him. And as they were in the actual possession of the land under the lease at the time of Beebe’s purchase, the vice chancellor was right in dissolving the injunction upon the bill and answer. His decision must therefore he affirmed with costs.


text:
    Livingston vs. Stickles.
    Where a lease in perpetuity contained a condition, and covenant, that upon every sale of the premises the lessee or his assigns should obtain the consent in writing of the lessor, and should offer to such lessor the pre-emptive right to purchase, and that if the premises were sold to any person after such offer, one tenth of the purchase money should be paid to the lessor, and the lessee afterwards contracted to sell the premises, and agreed to pay the tenth sale to the owner of the rent and reversion, and the purchasers actually took possession under their contracts to purchase ; Held, that the remedy against the lessee, for the recovery of the tenth sale, if any, was at law, and not in equity ; that the covenant and condition in the lease was in restraint of and in the nature of a fine upon alienation, inconsistent with the spirit of our institutions, and injurious to the community ; and that the court of chancery would not interfere to enforce the performance of such covenants and conditions in leases, in cases in which the landlord, by the terms of his lease, had not secured to himself a remedy at law.
    Whether the lessee is bound to pay the tenth sale, stipulated for in a lease upon every alienation of the premises, upon a mere contract to sell, and before he has actually received the whole purchase money agreed to be paid upon such sale, by the vendee, Quare ?

    No particular form of words is necessary to create a covenant in a lease, or conveyance ; but any words will be effectual for that purpose which show that a party who executed the instrument intended to agree to do, or to refrain from doing, something in which the other party had an interest.

      An equitable liability of the promisor is a sufficient consideration to support gan express promise, so as to entitle the promisee to sustain an action at law for the non-performance of such promise.
    May 19.
    This was an appeal from a decree of the late vice chancellor of the third circuit. The object of the complainant’s bill was to compel the defendant, who was the assignee of a lease for lives, of land of which the complainant owned the rent and reversion, to pay to her a tenth of the purchase money agreed to be paid to him by those who had contracted to purchase his interest in the lease, but who had not received any legal conveyance or assignment thereof. The clause in the lease under which the claim arose was as follows: “And lastly, it is mutually consented, covenanted and agreed, by and between the parties to these presents, that if at any time hereafter, it shall so happen that the party of the second part, his executors, administrators, or assigns, should be minded or inclined to sell or dispose of the estate in the hereby demised premises, and the buildings and improvements to be erected and made thereon, that then and in every such case, it shall and may be lawful for them so to do, provided they shall first obtain a certificate in writing under the hand and seal of the said party of the first part, his heirs or assigns, signifying his or their consent and approbation to such sale or assignment, and shall and will also first offer and give the preemption or refusal of buying or purchasing the same unto the party aforesaid of the first part, his heirs and assigns j and on every such sale or assignment, shall pay to the party of the first part, his heirs or assigns, a tenth part of the purchase or consideration money, for which the said premises are so sold or assigned.” The interest in the lease came to the defendant by assignment, and the tenth sale on the assignment to him was paid ; and he continued in possession of the premises and paid rent therefor to the complainant, who was the assignee of the rent and reversion, until 1826. On the 2d of March, 1826, the defendant contracted to sell a part of the premises to H. Stickles, and to clear it from all. incumbrances, for the consideration of $1500, payable in instalments, to be secured by a mortgage on the premises ; the purchaser to have possession on the first of April, 1826. And in March, 1827, he in like manner contracted to sell the residue of the farm to J. Bain, for $2800, payable by instalments, the purchaser to have possession on the first of April thereafter ; and the defendant agreed to indemnify Bain from the back rents and the tenth sale, up to that time. The purchasers from the defendant entered into possession of the parts of the premises contracted to be sold to them respectively, and paid the principal part of the purchase money • and were still in possession at the time of filing the complainant’s bill, in 1832. The complainant stated, in her bill, that the defendant subsequent to the making of these contracts for the sale of the premises, promised to pay her the tenth sale ; and that she afterwards brought a suit at law against him to recover the same, but was nonsuited at the circuit, on the ground that there was no consideration for the promise, inasmuch as there had not been an absolute technical legal sale and assignment of the defendant’s interest in the premises, to the purchasers. She also brought ejectments against the purchasers, to recover the premises on account of the breach of the condition of the lease, in selling without paying the tenth sale, and was nonsuited in those actions, on the same ground. The cause was heard on pleadings and proofs ; and the vice chancellor decreed the payment to the complainant of the one tenth of the purchase money agreed to be paid to the defendant for his interest in the leasehold premises, with interest and costs. From this decree the defendant appealed.

      S. Stevens, for the appellant.
    There is no personal liability on the part of the lessee or his assigns, to pay the tenth sale to the landlord. No action, therefore, can be maintained, either at law or in equity, to recover it. Should it be considered that the lease contains a covenant, either express or implied, that the lessee and his assigns would not violate the condition upon which he was permitted to alien the estate, then we humbly insist that there has been no violation of that condition. But if there has been a breach of that condition, by the alienation of the defendant without paying the tenth of the consideration to the landlord, and consequently a breach of the supposed covenant to observe and keep that condition, still we insist that that forms no ground for relief in equity. Whether the complainant is confined to the remedy of re-entry for the breach of the condition, or whether she is entitled to damages for the breach of the covenant to observe and keep that condition ; .in either case she has a full and perfect remedy at law. Whether the complainant seeks to forfeit the estate of the tenant for the breach of this condition, or to recover the tenth sale as damages in lieu of such forfeiture, the principle is the same ; in either case the recovery would be for a forfeture incurred by the breach of a condition in restraint of alienation. No remedy for the breach of such a condition or such a covenant will ever be enforced in equity ; but the party will be left to such remedy as the law may be compelled to afford. There is a total want of equity in such a claim. The breach of that condition and all the consequences attending such breach, have been waived by the complainant, by the acceptance of rent after such breach.

      C. Bushnell, for the respondent.
    The bargain and sale, and payments, and change of possession, and continued occupancy, &c. of the farm in question, constituted in equity a sale and assignment, or disposition of the farm, within the meaning and intent of the lease ; and the appellant was therefore liable to account for, and to pay to the respondent, one tenth of the consideration money of said sale. The lease of the farm in question to P. Vander Bogert contains an express covenant, running with the land ; binding on each successive assignee, in law or equity, that on each and every sale or assignment, the lessee, his executors, administrators or assigns, shall and will pay to the landlord, &c, a tenth part of the purchase or consideration money. And such covenant was a part of the original consideration of the grant, as much as the rent reserved ; and its performance is to be favored and enforced as much as the payment of rent, whenever the landlord assents to the sale directly or indirectly. The sale of one part of the farm at one time to one person, and of the residue at another time to another person, so as together to constitute a sale of the whole, is a sale and disposition thereof within the meaning of the covenant in the lease ; and if affirmed by the landlord, makes the vendor liable for the tenth sale, the same as if a prior consent had been obtained to the sale. The agreement, bargain, sale and delivery of the premises proved in this case, is either an assignment within the meaning of the covenant, or it is a fraudulent attempt to evade the covenant, conditions and terms of the lease ; of which, equity will not permit the fraudulent party to enjoy the fruits to the injury of the innocent party. It is clear, from the facts in the case, that Bain and Stickles, &c. contemplated and intended an actual transfer to them of the premises, and of all the right of the defendant therein ; and that they have ever - since considered it an actual transfer and disposition of the whole farm. And surely equity will charge them with the consequences, as on a formal sale and conveyance.
   The Chancellor.

The objection that the lease contains no covenant on the part of the lessee or his assigns to pay the tenth sale, so as to render them personally liable upon an alienation of the premises, with the consent of the lessor, does not appear to be well taken. If it were a mere condition, then it is evident the only remedy of the lessor would be by a proceeding against the purchaser, to recover the premises for a breach of the condition. But a clause of this kind may be so framed as to operate both as a covenant and as a condition ; so as to give the lessor an election, either to proceed by an action of covenant, to recover damages for a breach thereof, or by an ejectment to enforce the forfeiture. No particular form of words is necessary to create a covenant. But any words will be effectual for thatpurpose, which show that the party sought to be charged as a covenantor intended to agree to do, or to refrain from doing, something in which the other party had an interest. In Harrington v. Wise, (Cro. Eliz. 486,) where the agreement was, "it is covenanted and agreed between the parties, that J. H. doth let the said lands for five years, provided, always, that the said W. shall pay to him annually during the term £120 the court decided that this was a covenant for the payment of the rent, as well as a condition. (See also Doe v. Watt, 8 Barn. & Cress. Rep. 316; Coventry’s Read. ed. of Coke, 203.) Here, in addition to the clause of the lease which the appellant’s counsel contends is a condition merely, the parties had inserted a previous covenant, on the part of the lessee and his assigns, well and faithfully to pay, fulfil, accomplish, and perform, not only the yearly rents therein before mentioned and reserved, but also "all and every the several and respective payments, covenants, clauses, and conditions following,” &c. among which payments and conditions was this payment of the tenth sale upon every alienation. This is an express covenant, therefore, even if the subsequent clause, taken by itself, would have operated as a condition merely.

The objection that the complainant’s remedy, if any, was at law, and not in this court, appears, however, to be well taken. The bill states expressly that after these contracts for the sale of the premises, the defendant promised the complainant to pay her the tenth sale. And the evidence of Mr. Morris is, that she proved on the trial at law, in the suit brought for the recovery of the tenth sale, that the defendant had promised to pay the same. If the defendant therefore was either legally or equitably liable for the payment of the tenth of the purchase money for which he had agreed to sell the premises, it was a good consideration for this express promise to pay. And the complainant, instead of coming into this court, should have applied to the supreme court to set aside the nonsuit which the circuit judge had erroneously granted.

Whether the defendant was equitably bound to pay this tenth sale upon a mere contract to sell, and before he had actually received all the purchase money, is a question not necessary to be considered here, as I am satisfied this is not a case in which this court ought to give relief, if the defendant is not legally liable upon the covenant. It is a condition in restraint of alienation, which courts of law always construe with great strictness against the lessor. It is in effect a fine upon alienation, similar to that which existed under the military tenures, and which were abolished in England upon the restoration of Charles 2d; or to the lods et ventes of the French feudal tenures. And although these covenants and conditions, in restraint of the alienation of leasehold property have been sustained by the courts, while they have been considered as absolutely void in conveyances in fee, there is no principle which requires a court of equity to sustain them any further than the landlord has secured the legal right by the terms of his contract. The question has been mooted in France, whether the lods et ventes is payable upon a mere agreement to sell; and the better opinion appears to be, that it is payable where there has been a real sale of the premises, although the conveyance has not been executed before a notary, so as to give a perfect title to the purchaser ; but that it is not payable upon a mere agreement to sell. (See 10 Guyot’s Repert. of Jurisp. 603, art. Lods et Ventes, § 4.) But as there is no distinction between legal and equitable remedies recognized in the French courts, the question whether a court of equity should go beyond the strict rules of law in enforcing the claims of the landlord in such a case could not arise there. In the present case, the defendant who has not in fact assigned his lease, so as to give to the complainant a remedy against the persons to whom he has contracted to sell, may still be liable to her upon the covenants running with the land, whenever he makes an actual assignment to the purchasers, pursuant to his contracts with them. But as he has covenanted with them to clear the premises from the tenth sale upon their purchases, if it is in truth an incumbrance on the title, and as he must also get the complainant’s consent to such alienation if it has not already been given, it is doubtful whether he has made contracts which can be enforced against the purchasers, either at law or in equity. And certainly if he has not made such contracts for the sale as could be enforced here without the consent of the complainant, there is good grounds for saying that there has not been an alienation of the premises in equity.

I prefer to put my decision in this case, however, distinctly upon the ground that these agreements in the nature of fines upon alienations, are inconsistent with the spirit of our free institutions, and injurious to the community. And although this court has no right to interfere with such contracts, so far as the laws of the state sanction their validity, it ought not to interpose its extraordinary jurisdiction, to enforce the rights of the landlord, in cases where he has not by his contract secured to himself a legal right; as contradistinguished from an equitable claim, to enforce a hard bargain for which the law gives him no right of action.

For these reasons the decree of the vice chancellor must be reversed. And the complainant’s bill must be dismissed with costs ; but without prejudice to her rights at law, if she has any, either for the recovery of the tenth sale, or to enforce a forfeiture of the lease.


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    Pomeroy and others, superintendents of the poor of Otsego county, vs. Wells.
    The superintendents of the poor cannot file a bill in chancery against the husband to obtain satisfaction of the expenses incurred by the county for the support of his wife, as a lunatic or a pauper, until they have exhausted their remedy at law against him by judgment, and the return of an execution unsatisfied.
    Where the separation of the wife from her husband is involuntary, and without fault on her part, any person who furnishes her with necessaries, although against the directions of the husband, may recover therefor in a common law action against him. But if, for any cause, the husband is not legally liable for the support of his wife, the court of chancery has no general jurisdiction to compel him to support her.
    County superintendents of the poor should sue in the corporate name given them by the revised statutes, and not in their individual names describing themselves as superintendents of the poor of the county.
    The superintendents of the poor are not authorized to receive paupers into the county poor house, to be supported at the expense of the county, unless an order to that effect has been made by the overseers of the poor; or a warrant has been issued for the removal of the pauper to the county poor house as a lunatic.
    Where a lunatic is merely to be supported as a pauper, either in or out of the county poor house, the overseers of the poor of the town where such lunatic pauper resides, must enquire into the circumstances, and make an order for relief, as in the case of other indigent persons ; and then the superintendents of the county may, in their discretion, provide for the support of such lunatic pauper out of the poor house, if they think proper to do so.
    May 19.
    This case came before the court upon a demurrer to the complainants’ bill. The complainants alleged that the defendant, who resided in Plainfield, in the county of Otsego, was married to L. Stillman in 1829, and that from that time both the defendant and his wife had been and still were inhabitants of that county ; that in 1830 the defendant’s wife became insane and unable to provide for herself, and was provided for by the defendant until December, 1836, when he abandoned her, and refused to provide for her any longer; alleging that he had obtained a divorce from her in the state of Pennsylvania, and that he had no property which by any proceeding could be converted to her support; that in April, 1837, the complainants, as superintendents of the poor of Otsego county, were applied to by the overseers of the poor of the town of Plainfield and others, to take care of the defendant’s wife ; and they accordingly conveyed her to the lunatic asylum, at Bloomingdale, and maintained her there for about a year ; but finding that her derangement was incurable, they had her afterxvards placed in their poor house, where she xvas still maintained at the public expense ; that the complainants had expended about $300 for her support and maintenance ; that she had no property, and had no friends of sufficient ability to support or take care of her ; and that she must remain permanently chargeable to the county of Otsego as a pauper, unless the defendant, her husband, should be compelled to confine her in a suitable place, as a lunatic, and to maintain her. The bill also charged that the defendant, although he pretended that he had no property, but had sold all the property he once had and applied the proceeds to the support of his wife, was in fact seized and possessed of, or was well entitled’to, a saw-mill in the town of Plainfield, of the value of four or fix-e hundred dollars, and had personal property held in trust for him, and debts due and payable to him, or to some other persons for his use, to the amount of $1500, or more, if the same could be fully discovered ; and that he was of sufficient ability to provide for the safe keeping and suitable maintenance of his wife, &c.; that the defendant, although frequently applied to by the complainants for that purpose, had refused to provide for the safe keeping and support of his wife, or to give them any account of the particulars of his property ; and that with a design to avoid and exempt himself from the duty of supporting her, he had conveyed and disposed of his estate, or some portions thereof, to his father or some other person, in trust for himself or for his child or family other than his wife. The bill therefore prayed that the defendant might make a full discovery of his property, whether in his own hands or in the hands of any other person in trust for him ; and that he might be decreed to make a suitable allowance and provision out of his estate for the permanent care and maintenance of his wife, to be secured for her benefit under the order of this court; that he might also be restrained by injunction from parting with or incumbering his property ; or that the complainants might have such other relief as the nature of the case might require.
    The defendant demurred to the bill for the want of equity, both as to the discovery and relief. And he also assigned as special causes of demurrer, 1st. That it was not alleged in the bill that it had in any competent legal form been adjudged that his wife was a pauper, and chargeable to the county of Otsego, or was a lunatic whom it would be dangerous to permit to go at large ¡ 2d. That it was not alleged that the distinction between town and county poor was abolished in the county of Otsego, so as to make it the duty of the complainants to provide for the custody and support of the defendant’s wife ; 3d. That it was not alleged that any proceedings had been instituted under the provisions of the statute relative to the relief and support of indigent persons, or relative to the safe keeping of lunatics, to compel the defendant to confine or support her ; nor that the discovery sought by the complainants’ bill was in aid of any such proceedings which were intended to be commenced ; 4th. That no reason was shown in the bill why the complainants could not obtain relief, if they were entitled to any, by a proceeding against the defendant under the statute ; 5th. That it was not alleged in the bill that the defendant’s wife was in the care or custody of the complainants, as superintendents of the poor, by virtue of any order made in conformity to the provisions of the statute for the relief and support af indigent persons; and 6th. That the remedy of the complainants, if any, was by an action at law against the defendant, or by a proceeding under .the provisions of the statute relative to the support of indigent persons, or of the statute relative to the safe keeping and care of lunatics ; and that the court of chancery therefore had no jurisdiction of the case,

      E. B. Morehouse, for the complainants..

      A. Thompson, for the defendant,
   The Chancellor.

Some of the formal objections to the complainants’ bill are well taken, and the demurrer must be allowed for that reason, even if this court could grant the relief asked for upon the. merits. The county of Otsego is not one of those counties in which the distinction between town and county paupers is abolished in the revised statutes. And though it is probable the supervisors have abolished the distinction, as they are authorized to do by the 24th section of the title of the revised statutes relative to the relief and support of indigent persons, (1 R. S. 620,) so as to make the defendant’s wife a county charge instead of a charge upon the town in which she and her husband are settled, the fact that such distinction has been abolished no where appears in the bill. In the absence of such an allegation, the overseers of the poor of the town of Plainfield, instead of the county superintendents, appear to be the proper persons to compel the defendant to provide for the support and maintenance of his wife, if she is a pauper so as to become a public charge.

The statute also declares that the superintendents of each county shall be a corporation. And where it is proper for them to bring a suit in their official capacity, it ought to be in the corporate name given them by the statute ; and not, as in this case, in their individual names, with the addition of their official description. (See 1 R. S. 617, § 16.) But as these are mere matters of form which may be obviated by amendment of the bill, I proceed to the examination of the other questions in the cause.

It is stated in the bill, that the complainants received a petition from the overseers of the poor of the town of Plainfield, and divers other citizens of that town, stating the destitute situation of the defendant’s wife, and that she was a lunatic, and commending her to the care and protection of the complainants. From this statement I infer that there never was in fact any order made by the overseers of the poor, or either of them, for her removal to the county poor house, to be supported at the expense of the county as a pauper, as directed by the statute, (1 R. S. 622, § 31, 39.) And without such an order, or a warrant from two justices, under the provisions relative to the safe keeping and care of lunatics, I do not find any authority in the statute for receiving her in the county poor house to be supported at the public expense. (See Flower v. Allen, 6 Cowen’s R. 654.) I think the defendant’s counsel is right in supposing that where a lunatic is to be supported as a pauper, either in or out of the county poor house, the overseers of the poor of the town should proceed to inquire into the circumstances and make an order for relief as directed by the thirty-ninth section of the title relative to the support and relief of indigent persons. And after such an order has been made, the seventy-third section authorizes the superintendents of the county poor house to provide for the support of such lunatic pauper out of the poor house, if they think proper to do so.

The objection that the complainants had a remedy at law, by a summary application to the court of general sessions, to compel the defendant to support his wife, is certainly not well taken ; as the statutory provisions compelling certain persons, who are of sufficient ability, to provide for the support of their indigent relatives, do not extend to the case of husband and wife. The only relatives mentioned in the present statute are parents and children ; the legislature, in the revision, having stricken out grandparents, who were embraced in the statute of Elizabeth. As the common law had afforded an ample remedy for the recovery of the necessary expenses of the wife’s support, where the husband had not absconded, by a suit against him in favor of any person who thought proper to furnish her with the means of living, the only summary proceedings authorized against him is a seizure of his property where he absconds.

Upon the merits of this case, however, I think the present bill cannot be sustained, even if it was not defective in form. Where the separation of the wife from her husband is involuntary, and without fault on her part, as in this case, any person who furnishes her with necessaries, even against the express directions of the husband who neglects to provide for her, may by the common law sue the husband therefor, upon his implied promise to pay. (Law of Husb. and Wife, 109. 2 Kent’s Com. 148.) If the defendant, therefore, is liable for the support of this woman as his wife, notwithstanding his pretended divorce in Pennsylvania, as I have no doubt he is, if the bill states truly that he had from the time of his marriage been an inhabitant of the county of Otsego, the proper remedy of the complainants was by a suit at law against him, to recover the amount necessarily expended for her support. The bill shows that he has property which can be reached by execution to satisfy a judgment which may be recovered against him. But even if his property is all beyond the reach of execution, that is not sufficient to justify the complainants in coming into this court, in the first instance, before they have exhausted their remedy at law. And if for any cause the defendant is not legally liable for the expenses which have been already paid, or which may be hereafter paid for the support of his wife, this court has no general jurisdiction, in this form, to enforce the performance of a moral obligation, which the law will not recognize as a sufficient foundation for an action.

The demurrer is therefore allowed, and the complainants’ bill must be dismissed with costs ; but without prejudice to their rights at law, if they have any. And as the suit has been commenced by the superintendents in their individual names, and not in the corporate name given them by the statute, they will be personally liable to the defendant for the costs, in the first instance; and must charge the same in their accounts against the county, according to the directions of the revised statutes on that subject. (2 R. S. 476, § 108.)


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    Clinch vs. Eckford and others, executors, &c.
    Where the testator appointed his confidential clerk and book-keeper one of his executors, and directed the co-cxecutors to allow him such yearly compensation, for his spetiiart services, as they or a majority of them should deem pfoper; Held, that such clerk was not entitled to a salary for the ordinary discharge of his duties as one of the executors ; but merely to a salary, in addition to the usual commissions, while he continued to perform extra services; and that this direction in the will was only intended as an authority to the other executors to allow him a salary for extra services, in add ditkfn to the compensation'allowed by law, so long as they thought proper to require such extra services to be performed by him.
    Without an authority contained in the will for that purpose, the executors are not authorized to employ one of their number to perform extra services as clerk, in keeping the accounts of the estate, and to allow him a salary for his services out of the property; in addition to the commissions allowed by law.
    May 19.
    The object of the bill in this case, was to compel the other personal representatives of Henry Eckford deceased^ tó pay to the complainant, as one of those representatives, an annuity of $1200, from the death of Mr. Eckford, in 1832, to 1840, the time directed in his will for the distribution of his estate among his legatees and devisees. The bill stated that the complainant had, from 1824 until the death of Mr. Eckford, been his confidential clerk and book-keeper, and financier ; that from his situation he was fully acquainted with his commercial business and financial concerns; and that he had been allowed by Mr. Eckford a salary of $1200 per annum. Previous to Mr. Eckford’s sailing for Constantinople, where he died, he made his will, and thereby devised all his estate, real and personal, to his executrix and executors, and the survivor of them, in trust, for the purposes of his will; and directed that his estate should not be divided previous to February, 1840, but should be kept together and improved and disencumbered, as far as practicable, until that time and that in the meantime his widow should receive so much of the estate as was necessary for her support, and for the support of such of his family as chose to live with her. He also authorized his executrix and executors to sell and convey such of his real or personal estate as they or a majority of them should deem expedient, or to mortgage the same to raise money, See. And he appointed his wife executrix, and the complainant and three other persons executors of his will, and the guardians of the persons and estates of his minor children, and of his grand child whose mother was dead. At the close of the will, he added the following clause, upon which the claim of the complainant arose : “ And I direct, in addition, that my executrix and executors shall allow to the said Charles P. Clinch, such yearly compensation for his special services as they or a majority of them shall deem proper.”
    The executrix and executors all assumed the execution of the will, and took out letters testamentary thereon. And about ten months afterwards, the executrix and the other executors determined to allow the complainant $1200 per annum for his special services, as authorized by the will. On the 2d of January, 1836, the complainant being then a member pf the state legislature, the executrix and two of the executors, being a majority of the whole number, adopted a resolution as follows, which they communicated to him by letter :
    “ Oysterbay, January 2d, 1836. At a meeting of the executors of the estate of H. Eckford, it was resolved, whereas Mr. Clinch, who has heretofore acted as the agent of the estate, in consequence of his appointment to the state legislature, and necessary absence from the city, will be prevented from paying proper attention to the business of the estate, and which its exigencies now require, therefore, resolved, that we do from this date dispense with his extra services, and that his salary therefor do cease. Also, resolved, that Mr. Clinch be requested to place the papers and property of the estate now in his hands, in the possession of Gabriel F. Irving and James De Kay, in order that the necessary attention may be paid to the business of the estate during his absence from the city.” (Signed) “Marion Eckford, J. E. De Kay, G. F. Irving.” In answer to this communication, the complainant stated that he was not and never had been the agent of the estate, and was not bound to perform any extra services ; but that he claimed the salary for the discharge of his ordinary duties as one of the executors. And this was the claim made by him in his bill.

      C. Bushnell, for the complainant.
    J. P. Hall, for the defendants.
   The Chancellor.

Taking the will in connection with the several extrinsic facts and circumstances stated in the complainant’s bill, I have no doubt that the testator contemplated the continuance of the complainant, by the other executors, as the book-keeper and financial agent of the estate, as he had been of the testator himself, so far as the services of such an agent were necessary; and that the testator could not have intended to allow him a salary for the ordinary discharge of the duties of a joint executor merely. The term special services, necessarily means something more than the ordinary services which the other executors would be required to perform personally. And this provision appears to have been inserted, at the end of the will, probably upon the suggestion of counsel, to enable the other executors to continue him as such confidential agent and book-keeper, &c.; and to pay him for such services a compensation which they would not have been authorized to allow him without a special provision in the will to that effect; the law having settled the compensation to which he would be entitled, and the courts not being authorized to allow the executors any greater compensation even for extra services. So long, therefore, as the complainant continued to perform such extra services as were contemplated by the testator, it "was the duty of the other executors to allow him such compensation therefor as those extra services were worth, in addition to his share of commissions as one of the executors. But as he refused to perform any extra services, it would have been a violation of their duty if the defendants had continued his salary.

I am also satisfied that the subject of compensation for such extra services was under the control of the majority of the executors at all times ; and that it was their duty to have increased or diminished the amount, from time to time, as the value of such extra services changed. And that the complainant, on the other hand, was not bound to perform any such extra services, unless they were willing to allow him what was reasonable therefor. In other words, this provision in the will was not intended to give the complainant a fixed and permanent salary during the continuance of the trust, without reference to the extra services which it might be necessary for him to perform. But it was a special authority to the other executors to agree with him from time to time to perform these extra services, and pay him a reasonable salary for such services ; which they could not have done without a special authority in the will for that purpose.

The claim set up in the bill cannot, therefore, be sustained. The demurrer must be allowed, and the bill dismissed with costs.


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    Hawley vs. Donnelly and another.
    The proceedings upon an appeal to the chancellor, from the decision of a surrogate, or of a circuit judge who was not acting as a vice chancellor, must be entitled in the appeal cause. But upon an appeal from an order or decree of a vice chancellor, the proceedings should be entitled as in the original suit.
    In ordinary cases the court will disregard the misentitling of a paper which could not have misled the opposite party ; except in the case of sworn papers, when such misentitling will exempt the deponent from the punishment of perjury, although his oath is false.
    But where the party, who founds an application upon papers wrongly entitled, asks to have the proceedings of the adverse party set aside for a technical defect merely, he will be holden to strict rules, and his application will be denied.

      July 21.
    This was an application on the part of the complainant to dismiss an appeal, which had been entered by the defendants, from a decree of the vice chancellor of the fifth circuit. The application was founded upon a technical defect in the certificate of the officer who approved the appeal bond. In the affidavit on which the application was founded, and also in the notice of the motion, the cause was entitled "Thomas Donnelly et al., appellant's, vs. Burton Hawley, respondent.” And the counsel for the appellants urged this objection, to the entitling of the papers, in opposition to the motion.

      J. Rhoades, for the complainant.
    J. Ellsworth, for the defendants.
   The Chancellor.

As the complainant asks for a dismissal of the appeal, upon an objection to the vice chancellor’s approval of the appeal bond merely technical, and which is where the appellants would be permitted to amend as a matter of course, upon the usual terms, if the party making this application has himself made a similar slip in the entitling of his papers, his motion must be denied with costs. It becomes necessary, therefore, to inquire whether it is strictly regular to entitle papers, in a proceeding upon appeal from a vice chancellor, in the manner in which the complainant’s affidavit and notice are entitled in this case.

Where there is an appeal to the court of chancery from a decision of a surrogate, or of a circuit judge when not acting as a vice chancellor or officer of this court, the case is brought before the chancellor upon a petition of appeal. And all proceedings subsequent to the filing of such petition of appeal, if not before, must be entitled in the appeal cause. (Gardner v. Gardner, 5 Paige’s Rep. 170.) But upon an appeal to the chancellor from a decree or order of a vice chancellor, as all the proceedings are still in the same court, no petition of appeal or transcript of the proceedings is required; and the title of the suit is not changed in any proceedings upon the appeal. (Rule 119. 5 Paige, 171.) This is strictly in accordance with the practice of the court of chancery in England, in the similar case of an appeal from a decision of the vice chancellor, or master of the rolls, to the lord chancellor. And the 95th rule of this court requires that in the entitling of papers, as well as in the endorsement thereof, by either party, the complainant’s name shall be placed first. That has not been done in this case, and the respondents’ application is therefore irregular.

In an ordinary case of a meritorious application, the court would disregard the misentitling of a paper which could not mislead the opposite party ; except in those cases where the mistake in the title of a sworn paper would exempt the deponent from the punishment of perjury, although his oath was false. In this case, however, for the reason stated in the first part of this opinion, the complainant’s motion must be denied with costs.


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    Reed vs. Emery and others.
    An assignment by a debtor in failing circumstances, to an assignee who is known to be insolvent, is prima facie evidence of an intent to defraud the creditors of the assignor, notwithstanding the general denial of fraud in the answer. But circumstances may exist to rebut the presumption of fraud; as where the several creditors who are interested in the asisgned property were consulted, and consented to the assignment to such insolvent assignee.
    July 21.
    ■ This was an application on the part of the defendant, Dodge, for a dissolution of the injunction, which had been issued upon a creditor’s bill, restraining him from parting with or using the property of the judgment debtor, which he claimed as assignee for the benefit of the creditors of Emery. A cross application was also made on the part of the complainants for the appointment of a receiver. It appeared from the answer that Emery the judgment debtor being in failing circumstances, made an assignment of bis property amounting to several thousand dollars to the defendant Dodge, who was notoriously insolvent at the time of making the assignment, and who had shortly before assigned all his own property to assignees for the benefit of his creditors.

      C. O’Conner, for the complainants.

      S. J. Wilkin, for the defendant, Dodge.
   The Chancellor.

Without adverting to the other circumstances of fraud, stated in the bill and not denied by the answer, I think the assignment of the property to an assignee who was known to be insolvent, is at least prima facie evidence of an intent to defraud the creditors of the assignor, notwithstanding the general denial of fraud in the answer. It is not conclusive ; and therefore a replication to the answer must be filed to enable the assignee to prove that circumstances existed to rebut the presumption of fraud, in assigning the property to an individual who was known to be irresponsible. Where the several creditors interested in the assigned property are consulted, and consent to the assignment to a particular individual, such consent would rebut the presumption that there was any intention to commit a fraud, although the assignee was known to be destitute of property ; as the creditors would have the right to repose themselves upon his honesty only. But where the failing debtor is permitted by the law to select his own assignee, without consulting his creditors and obtaining their consent, it is his duty as an honest man, to select one whose circumstances, as to property, are such as to afford a reasonable assurance to the creditors that the fund will be safe in his hands. And if the debtor, in such a case, selects one who is known to be insolvent, it is a fraud upon the rights of the creditors, and evidences an intention to place his property beyond their reach; or in the language of the statute, to delay or hinder them in the collection of their debts.

As the pleadings show a prima facie case of fraud, and the answer shows no good reason for the selection of an assignee who was notoriously insolvent, the motion to dissolve the injunction must be denied with costs. And the motion on the part of the complainants, for the appointment of a receiver, as well of the assigned property, or the proceeds thereof, as of any other property now in the hands of the. defendant Emery, must be granted.


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    The New-York Fire Insurance Company vs. Delavan.
    Where by the terms of a policy of insurance the insurers are authorized, within twenty days after proof of loss, to elect to replace the articles lost or damaged by the fire, they are not entitled to file a bill, for an injunction, to restrain the assured from removing or disposing of his goods until after the expiration of the twenty days; to enable them to take an inventory, &c. with a view to such election.
    But, upon such a policy, if the assured should, without any sufficient excuse, refuse to permit the insurers to make an examination of the goods saved from the fire, and a proper scrutiny as to the alleged loss, it would be proper evidence to submit to a jury, in a suit brought upon the policy; and it would authorize the jury to presume that the statement of the loss was false and fraudulent.
    July 21.
    This was an appeal from a decree of the vice chancellor of the first circuit, dissolving the injunction which had been issued in this cause, and dismissing the complainants’ bill with costs. The complainants had insured the defendant upon his stock of hardware, in a store in New-York, to the amount of $5000, which stock was injured by fire, and by the water used in extinguishing the fire, to the extent of about $2200 as the defendant claimed by his statement of the loss, furnished to the insurers according to the terms of the policy. The bill alleged that the complainants verily believed that the loss had been over estimated, and that they had therefore been anxious to obtain a statement of the present condition of the stock, in order to make a correct estimate of the damage sustained ; that, after several interviews with the defendant, he agreed that the stock should be examined in the presence of two gentlemen, selected by him and the underwriters for that purpose ; but that before such examination was had the defendant removed a part of his stock of goods to the store of an auctioneer, for sale at auction, and that he was engaged in removing the remainder for that purpose at the time of the filing of the bill in this cause ; that the secretary of the complainants’ company objected to such removal, and insisted upon their right to take an inventory of the stock, and to make an estimate of its present condition | that the terms of the policy authorized the insurers, if they should see fit, to elect, within twenty days after the furnishing of the preliminary proofs of loss, to replace the articles lost or damaged, with others of the same kind, and of equal goodness as such articles were before the fire ; and that the twenty days allowed to them for that purpose had not yet expired. The complainants therefore prayed for an injunction, to restrain the defendant from removing his goods from the store in which they were at the time of the fire, until they should have had a reasonable time to take such inventory, and until the expiration of the twenty days; and that the defendant might be compelled to permit the complainants to take such inventory, and for general relief. The defendant, in his answer, stated the reasons why the parties had not been able to agree upon the mode of estimating the damage to the goods, and why he did not consent to stay the removal of the stock to the store of the auctioneer; but denied that he had refused to permit the complainants to examine and take an inventory of the stock on hand subsequent to the fire, after the goods were thus removed and as fast as they were removed j so as not to interfere with the taking of his own inventory. He also denied the right of the insurers to take an inventory of the stock, except by his voluntary consent, other than the particulars of his loss, which by the terms of the policy he was bound to furnish ; and which he was engaged in making at the time of the filing of the bill. The defendant therefore objected to the jurisdiction of the court to grant any relief in the case.
    P. A. Cowdrey, for the complainants.
    Pursuant to the tenth condition of the policy of insurance, it was optional with the complainants to replace the articles damaged with others of the same kind and of equal goodness, giving notice of their intention to do so within twenty days after having received the preliminary proofs. This gave to the complainants a qualified right of property in the damaged goods, at all events, until the expiration of the twenty days; which had not elapsed when the bill was filed and the injunction granted. The amount of damage to the goods insured was the subject of dispute between the parties, and the complainants had an equitable right to a discovery of such amount of damage from the inspection of the goods themselves; which could alone furnish the correct evidence. The jurisdiction of the court of chancery is in this respect ancilliary to the powers of the courts of law, and which without such aid would be defective.

      L. H. Sandford, for the defendant.
    We hold this demand of the complainants to take possession of a man’s store and damaged stock of goods to be the only instance upon record, in the history of insurances against fire, where such a right has been asserted to exist. The bill is not intended to be in aid of a suit at law. This court can only deal with the contract the parties have made. The contract of insurance is one of indemnity merely, and the underwriters can only be charged with the amount of loss sustained. Proof of loss is made a condition precedent; and until made, no claim arises. When it is made in pursuance of the conditions of the policy, a claim does arise; and we respectfully deny any power or jurisdiction of this court in any manner to interfere with the collection or adjustment of that claim. (2 John. Ch. Rep. 371.) The remedy is wholly and exclusively at law. Courts of law decide upon the sufficiency of the proofs ; and if erroneously, the constitution has provided another tribunal than the court of chancery to correct their decisions. (Hoff v. The Marine Ins. Co. 4 John. R. 132. 9 Id. 192. 11 Id. 241. 12 Wendell, 452. 6 Paige’s R. 583. 1 H. Black. 577. Id. 254. 2 Id. 574. 6 Term R. 200. 16 Wendell,
      385. 6 Term R. 710.) The injunction in this cause should he dissolved, and the bill of complaint dismissed with costs.
   The Chancellor.

I have not been able to find any precedent for a bill of this kind, and I am not aware of any principle upon which it can be sustained. It is in effect an application to restrain the defendant from removing or disposing of his stock in trade, or that part of it which has been saved from the fire, until the determination of a chancery suit, and after a decree shall have been obtained therein to compel him to furnish the insurers with an opportunity of examining the goods saved, to obtain testimomony to contradict the defendant’s statement, and proof of loss. This would indeed be carrying the jurisdiction of this court much further than it has ever yet been extended ; and in a case where it does not appear to be necessary for the attainment of justice. The defendant himself is by the terms of the policy bound to furnish a particular statement of his loss, not only for the purpose of enabling the insurers to test its correctness by the testimony of witnesses, and a resort to his books, but also to enable them to substitute other articles in the place of those which are damaged or lost, if they shall elect to do so. And in case the assured, without any reasonable excuse, refuses to permit a proper scrutiny as to the loss, by an examination of the goods remaining on hand, or otherwise, the insurers will have the full benefit of the presumption of fraud, and unfairness in his statement of the loss, before the jury which tries the cause. Here I think also that the answer furnishes a sufficient excuse for the refusal to postpone the defendant’s own inventory, and statement of the particulars of the loss; and no reason is stated in the bill why the complainants’ agent or witness could not have examined the goods at the store of the auctioneer, to which they were being removed at the time the defendant consented to have them examined there.

As the court was not authorized to give any relief to the complainants, upon the case as made by their bill, the injunction which was merely incidental to the relief prayed for ought never to have been granted. The decree of the vice chancellor was therefore right, and the same must he affirmed with costs.


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    Harris vs. Troup and others.
    Where by the terms of a contract for the sale of land, the purchase money was to be paid in seven yearly payments, with interest annually, and a conveyance was to be given to the vendee or his assignees when the purchase money had been paid, and the vendors reserved to themselves the right to forfeit the contract if the vendee, should make default in the payments, and after default had been made in making the payments at the times specified in the contract, the vendors continued to receive parts of the purchase money from time to time; Held, that the vendors, by receiving the -payments .after default in payment had been made, had so far waived the forfeiture that they could not insist upon it, without giving the purchaser notice to pay the arrears or that they would exercise the right of forfeiture reserved to them by the contract.
    A vendor who has waived a forfeiture of a contract for non-payment of the purchase money, by receiving partial payments from the vendee, from time to time, after the days of .payment prescribed in the contract, cannot suddenly stop short, and insist upon a forfeiture for the non-payment of the arrears remaining unpaid, without any previous notice of his intention to do so if the arrears are not paid.
    Where by the terms of a contract the vendor has the right to forfeit it if the several instalments of purchase money are not paid as they become due, whether the court of chancery will relieve a purchaser who has paid part of the purchase money, but who neglects to pay the residue thereof, after notice from the vendor that he will insist upon his right to the forfeiture if the arrears are not paid without .any unreasonable delay, Qucere ?

    July 21.
    This was an application on the part of the defendants, apon bill and answer, to dissolve the injunction which had been issued in this cause. The object of the complainant’s bill was to obtain the specific performance of a contract for the sale of a lot of land in the county of Allegany, and to restrain the defendants from selling the lot or ejecting the complainant therefrom. The lot originally belonged to R. R. Troup and C. G. Troup, now deceased, and to the defendants Louisa Troup and Charlotte the wife of J. L. Brinckerhoff; the share of Mrs. Brinckerhoff being vested in trustees for her separate use. On the 15th of May, 1833, the several parties interested in the lot entered into a written contract with Charles Hopkins, to sell the same to him for the sum of $569,35 ; to be paid in seven equal annual instalments, with lawful interest from the 14th of January, 1832, the interest on the whole sum remaining unpaid from time to time to be paid annually. And a conveyance with warranty was to be given to the purchaser, or his assignee, upon payment of the purchase money. The contract, among other things, contained the following clause :
    “ This contract is upon the express condition that the party of the second part or his assigns, shall remove to and actually settle on the said land within the term of six months from the date hereof, and being so settled shall permanently reside thereon and forthwith proceed to clear and improve the same, and the said improvements shall be • increased by clearing and putting under a good fence, yearly and every year, five acres of the said land, in addition to former clearings and improvements. And in default of the said party of the second part, or the said assignee in making payments, and actually settling on and improving and clearing and keeping improved and cleared the said land, in manner aforesaid, then and in such case this contract shall and may be forfeited by the parties of the first part, and thereupon the same shall become utterly null and void; excepting always that this contract, notwithstanding such forfeiture and so becoming null and void, shall continue to be so far valid and in force, in law and equity, as to entitle the parties of the first part to demand and receive of the party of the second part, or the said assignee, the sum of $250 as liquidated damages, and not in the way of penalty, for the injury sustained by the parties of the first part in making the said sale, and by the failure of the party of the second part or the said assignee to settle on, clear and improve such land in manner aforesaid. And in case of the forfeiture by the parties of the first part as aforesaid, then and in such case they shall be at liberty to sell the said land to any other person or persons whomsoever, without being liable in law or equity to the party of the second part, or any person claiming under him, for any damages therefor, or for any payments previously made on account of this contract.”
    Hopkins, at the time of making of the contract, paid $50 towards the purchase money mentioned therein ; which by agreement of -the parties was to be considered as paid in February, 1832. And $15 was afterwards allowed to him on the contract in consequence of having been kept out of the possession of a part of the premises for some time after the making of the contract. He also paid $60, in June, 1835, which was received from him in part payment of the purchase money and interest which had then become due. And in March, 1836, Hopkins assigned his interest in the contract to the complainant, with the assent of the other parties -to such contract; and they at the same time received from such assignee $200 towards the principal and interest which was then due on account of the purchase money mentioned therein. R. R. Troup and C. G-. Troup died after the making of the contract. And, in June, 1839, the complainant offered to pay to the defendant J. L. Brinckerhoff, who was also the attorney of the defendant Louisa Troup, the balance of the purchase money due upon the contract. But he refused to receive it; claiming the right to a forfeiture of the contract because the payments had not been previously made.

      John Dixon, for the complainant.

      M. S. Bidwell, for the defendants.
   The Chancellor.

The defendants appear to have proceeded upon the supposition that the annual payments upon this contract were to commence from January, 1832, so that the last payment would become due in 1839. Such, however, does not appear to be the true construction of the instrument upon its face. It was made in May, 1833, and the principal was made payable in seven annual. instalments, without specifying when the first payment was to be made. The natural construction of it therefore is, that the purchase money and interest was to be paid in seven annual instalments from the date of the instrument, with interest to be computed from the 14th of January, 1832. If the latter date was referred to as the time from which the yearly payments were to commence, the first instalment would, by the terms of the agreement, have been due and payable several months before the contract was made. The price of the land and the terms of payment may have been agreed upon verbally as early as January, 1832, and the contract reduced to writing subsequently. But, if such was the fact, the parties have not drawn up a contract which can refer the times of payment of the several instalments to seven yearly payments from the 14th of January, 1832 ; as the reference to that time, in the written agreement, only relates to the time from which the interest is to. be computed. Indeed, any other construction would have authorized the vendors to declare the contract forfeited immediately after its execution, and to recover the $250 agreed upon as stipulated damages ; if the defendants are right in their understanding of the legal effect of the fourth clause or article of the agreement.

Although the whole amount of the purchase money had not become due in June, 1839, still there has been a default in the payment of some of the instalments, and of the annual interest, which were unquestionably due. The question therefore arises, whether upon this agreement, and considering the practical construction which the vendors had given to the same by receiving the instalments long after they had become due and payable, it was just and equitable for the defendants to insist upon an absolute forfeiture of the agreement, and of all the moneys paid thereon ; without giving any previous notice to the complainant that they intended to insist upon such a right if the arrears of principal and interest were not paid without any unreasonable delay. How far a court of equity is bound to relieve the purchaser, in such a contract, who neglects to perform his part of the agreement after he has had reasonable notice from the vendors that they will insist upon their legal rights if the purchase money is not paid according to the terms of the agreement, it is not necessary now to consider. But it was certainly inequitable in this case, after the vendors had waived the forfeiture, from time to time, by receiving portions of the purchase money long after the same was due and payable, to suddenly stop short and insist upon a forfeiture, without any previous intimation that they intended to do so.

It appears, however, from the answer of the defendants, which in this respect is responsive to the bill, that the mother of two of the vendors, who have died since the making of the contract, has a life interest in their respective portions of the lot in question. She is therefore a necessary party to a bill for a specific performance of the contract, as she must join in the conveyance in order to give a good title to the purchaser. The personal representatives of the decedents are also proper parties, as the unpaid purchase money for their shares is, in equity, considered as personal property. The defendants will therefore be entitled to a dissolution of the injunction unless the proper parties are all brought before the court, by an amendment of the bill, without any unreasonable delay. The motion is denied for the present; but with liberty to the defendants to renew the application if. the proper parties are not brought before the court, by a motion for leave to amend the bill and by an actual amendment thereof in this respect, as soon as practicable. The costs of both parties on this motion to abide the event of the suit.


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    Parker vs. Baker and others.
    An affidavit, taken before a commissioner of deeds de facto, for a city, who is exercising such office under color of an appointment by the governor and senate, may be read in a suit between other persons; and the court will not inquire collaterally into the legality of such appointment.
    As between third persons the acts of an officer de facto, who comes into the office by color of an election or appointment to such office, and exercises the duties thereof, are valid. And in a collateral proceeding, to which the officer is not a party, the court will not decide upon the validity of his appointment.
    An affidavit, where nothing appears to show that it was taken out of the j 0-risdiction of the officer before whom it was sworn, will be presumed ta have been taken within the limits of his jurisdiction.
    July 21.
    This was an appeal from, a decision of the vice chancellor of the eighth circuit, denying a motion to dismiss the complainant’s bill for want of prosecution. The application was founded upon an affidavit sworn before one of the commissioners of deeds, recently appointed by the governor, with the consent of the senate, for the city of Buffalo. The vice chancellor decided that there was no law authorizing the governor to appoint commissioners of deeds in Buffalo, and that there were therefore no such officers as commissioners of deeds for that city who were authorized to take affidavits to be read in this court. Upon this ground alone he denied the application ; and from that decision the defendant Baker appealed.

      N. K. Hall, for the appellant.

      E. Norton, for the respondent.
   The Chancellor.

The laws of this state recognize the existence of two classes of commissioners of deeds, who are authorized to take affidavits to be read in this court, and to perform various other duties prescribed by law; commissioners for counties and commissioners for cities. (2 R. S. 282, § 41; 284, § 39.) And provision is also made by law for determinining from time to time the number to be appointed in each city of the state, except in the city of New-York, and the number in each town in the several counties. (1 R. S. 101, § 2, 5.) The affidavit in this case has been taken before an officer who has been appointed and commissioned, by the governor, as a commissioner of deeds for one of the cities in this state. And this court is not authorized, in this collateral proceeding, to which the commissioner is not a party, to inquire into the legality of his appointment.

It appears to be a well settled principle of the common law, that as between third persons, the acts of an officer de faoto, who comes into the office by color of an election or appointment to such office, and who claims and continues to exercise the duties of the office, are valid and that in a collateral proceeding, to -which he is not a party, the courts will not decide upon the validity of his title to the office. In the case of The People v. Collins, (7 John. Rep. 551,) Kent, C. J. says : “That law is too well settled to be discussed.” And the principle was again recognized by the supreme court in the case of Mclnstry v. Tanner, (9 Idem, 135,) where upon certiorari it was sought to call in question the right of the justice to the office; on the ground that he was a clergyman, and therefore constitutionally disqualified to hold any office in this state. A case very analogous to the present will also be found in the reports of an adjoining state. There the defendant in a suit sought to repudiate the service of the process of the court, by a plea in abatement, on the ground that the sheriff who served the writ had been appointed to that office, by the governor and his council, before the law organizing the county had gone into effect; and of course, before there was any law authorizing the appointment of a sheriff for that county. The court, in that case, held that the right of the sheriff to the office could not be inquired into in a suit to which he was not a party. (See Fowler v. Beebe and another, 9 Mass. R. 231.) In that case, the whole facts upon which the question as to the right to the office arose, and the fact of the appointment of the sheriff several months before the law erecting the new county took effect, were stated in the plea in abatement. But Ch. J. Parsons said—“ We do not decide whether he is sheriff de jure of the county of Hampden, or has intruded himself into the office. But as we are of opinion that he is sheriff in fact of that county, the plea in abatement must be adjudged bad, and the defendants ordered to answer further.” The decision of the court in that case, against the right of third persons to question the legality of the appointment of the officer, in a collateral suit between themselves, is the more to be regarded as it turned upon that question merely. For in a subsequent proceeding, directly against another officer of the same county who had been appointed under similar circumstances, the same court decided, that the appointment which had been made, by the governor and council, before the law erecting the new county had gone into effect, was unauthorized and void, as to the officer himself. (Commonwealth v. Fowler, 10 Mass. Rep. 290.)

Without expressing any opinion, therefore, upon the question as to the correctness of the conclusion at which the vice chancellor arrived relative to the power of the governor and senate to appoint commissioners of deeds for the city of Buffalo, the fact that the affidavit was sworn before an officer who had been actually appointed to the office of commissioner of deeds in a city, and who was de facto such officer under color of that appointment, was sufficient to authorize it to be read upon the motion between these parties.

The objection that it does not appear upon the affidavit that it was sworn to within the limits of the city of Buffalo, is not well taken. It is sufficient that it does not appear to have been sworn to out of the jurisdiction of the commissioner ; as the court will not presume the officer has been guilty of a breach of duty, in taking an affidavit at any place out of the limits of his jurisdiction.

The order appealed from must therefore be reversed ; and the bill must be dismissed as to the appellant for w-ant of prosecution, with costs.