text:
    Flagler vs. Flagler and others.
    Where the testator, by his will, gave to his wife a legacy of $10,000 in lieu of dower, and all his household furniture, &c., “ with the exception of his desk, which contained his private writings, and all the money and papers therein,” and made a residuary devise and bequest, to the children of his brother, of all his property not before disposed of, including his desk and all the papers and writings, excepting deeds of property given to others, and money, if any therein contained ; Held, that the money in the desk was intended to be excepted from the bequest to the testator’s wife; and was given to the residuary legatees, as a part of the residuary estate of the testator, after payment of debts and legacies.
    This was-an appeal from the sentence or decree of the surrogate of Dutchess county, rejecting the claim of the widow of Philip Flagler, deceased, to a distributive share of about $1300, in money, found in the testator’s desk at the time of his death.

      W. J. Street, for the appellant.

      C. W. Swift, for the respondents.
   The Chancellor.

The only question for consideration in this case is, whether this sum of money, found in the decedent’s desk, belongs to the children of the testator’s brother Zachariah, as residuary devisees and legatees, or whether it is a part of the testator’s personal estate not disposed of by his will. The testator, after directing the payment of his debts, gives to his wife a legacy of $10,000, and all his household furniture, linen, beds and bedding, with the exception of his desk, which contains his private writings, and all the money and papers therein, in lieu of dower. And after devising divers portions of his real estate to other of his relatives, and giving several other pecuniary legacies, the testator makes a general residuary devise and bequest as follows: “ I give, devise aftd bequeath, to the children of my brother Zachariah, except David, all the residue of my property and money,. except such as is necessary to pay the legacies and devises above specified; and it is my will that they s hould have all the residue of my real and personal estate, my chattels, goods, and movables, wheresoever they may be, and whatever goods I may acquire hereafter and own at my decease; and I also give unto my brother Zachariah’s children, exclusive of David, my desk and all my papers and writings, excepting deeds of property given to others, and money (if any) therein contained.” The testator also gave to them, all the residue of his lands and all the lands he should thereafter acquire. And he directed that all his legacies, and his debts and funeral expenses, should be paid out of the property so given to them.

Taking the whole will together, I think there can be no doubt whatever that the bequest to the widow was not intended to include the desk, or any of the papers or money in the desk; and that the subsequent devise to these children was intended to include the desk, and all the papers and money therein which had been excepted in the bequest to the wife; with the exception of the title deeds of such of his real estate as was devised to others. If there were any doubt upon the subject, the broad and comprehensive terms in which he has given all his residuary estate, not otherwise disposed of, to these legatees, is conclusive to show that he could not have intended to leave any part of his property undisposed of by his will.

The decision of the surrogate, therefore, was not erroneous; and the decree or order appealed from must be affirmed with costs, to be paid by the appellant.


source: Caselaw Access Project

author: The Chancellor.

license: Public Domain

text:
    Williams vs. Thorn and others. Paterson vs. Williams and Strong.
    Where T. & F., who were the owners of one third of the city mills, and who owed W. $10,000 for the purchase money thereof, mortgaged their third of the city mills to W. in January, 1833, to secure the payment of $4000 of the purchase money, and at the same time gave to him an absolute deed of certain lands called the city lots, which deed was intended merely as a security for $6000, the residue of the purchase money for the city mills; and in 1834 S., who was the owner of one third of the city mills, took an assignment of the $4000 mortgage, and a conveyance of the city lots, from W., and caused the mortgage upon one third of the city mills to be foreclosed, and bid in the mortgaged premises at the sale, under the decree, knowing at the time he took the conveyance of the city lots, that W. held the legal title only as security for the $6000; and S., subsequent to 1834, mortgaged his interest in the city mills and the city lots to W., to secure the payment of" $10,000; Held, that the last mentioned mortgage was an equitable lien upon the city lots only, to the extent of the $6000 and interest, after deducting therefrom the .rents and profits of the city lots, subsequent to the time when W. took possession of those lots under the deed of January, 1833.

      Held also, that as S. was the assignee and owner of the $4000 mortgage, at the time he gave the $10,000 mortgage to W., a purchaser of the city mills under-a decree for the foreclosure of the latter mortgage, would take the property discharged of the lien of the $4000 mortgage, and of the interest which S. had acquired in the mortgaged premises under his decree of foreclosure.
    A mortgagor of land, who holds a prior mortgage upon the premises at the time he mortgages his interest in the property to another, cannot set up such prior mortgage as against his own mortgagee.
    This case came before the chancellor upon an appeal from a decree of the vice chancellor of the seventh circuit. The bill in the original suit was filed in November, 1837, to foreclose a mortgage given to the complainant' by J. Strong, one of the defendants, on the 27th of April, 1836, upon two parcels of land in Rochester; the one parcel called “ the city mills,” and the other parcel spoken of by the witnesses as “the city lots.” This mortgage, together with the bond of Strong, was given to secure the payment of $10,000, in September, 1837, with interest. The cross-bill was filed by T. J. Paterson, one of the defendants in the original bill, and who claimed to be the owner of the parcel of the mortgaged premises called the'city lots, for the purpose of having an absolute deed, of the city lots, given to H. B. Williams in January, 1833, declared to be only a security in the nature of a mortgage; and that the complainant in the cross-bill might be permitted to redeem the same, upon payment of whatever was equitably due, after deducting the rents and profits of the premises from the time when Williams took possession thereof, in June, 1834. Paterson and Strong, and Suy-dam, Sage & Co. who were subsequent mortgagees of the city mills, answered the original bill; and replications were filed to their several answers. The defendants in the cross-bill also put in their joint and several answer to the same; to which answer a replication was filed. The bill and cross-bill were after-wards heard together, before the vice chancellor, upon pleadings and proofs. He decided and decreed that the city lots were primarily liable for the whole amount of the principal due upon the mortgage from Strong to Williams, with interest and costs, and that those lots should be first sold, to satisfy the amount for which they were first liable; and that if the proceeds of the sale were not sufficient for that purpose, the city mills should be next sold, to pay the deficiency. He also decided that Paterson was not entitled to costs. From this decree Paterson appealed to the chancellor,

      F. M. Haight, for the appellant.

      G. H. Mumford, for H. B. Williams.

      O. Hastings, for J. Strong.

      P. Smith, for Suydam, Sage & Co.
   The Chancellor.

To understand the equities of the parties in this complicated case, it is first necessary to obtain a correct understanding of th,e facts, as they are presented by the pleadings and proofs. It appears that on the 1st of September, 1832, J. Strong, one of the defendants, and M. Strong, together with Williams, the complainant in the original bill ip this cause, were joint owners, as tenants in .common, of the parcel of the mortgaged premises called the city mills; and were copartners in the milling business. At that time Williams sold his third of the city mills, and his interest in the milling business, to Thorn and Frink, for $10,000, payable in five years from the 10th of September, 1832, with interest semi-annually. And to secure the payment of such purchase money, Thorn and Frink gave to Williams their bond and warrant .of attorney, upon which a judgment was immediately entered; with liberty to take out execution for th.e whole amount, upon failure to pay the semiannual interest as it should become due, from tinge to time. In January, 1833, Thorn and Frink complained that the judgment was an injury to their credit; and it was then agreed between the parties that the judgment should be cancelled. And, in lieu thereof, Williams agreed to take a bond and mortgage upon their third of the city mills, to secure the payment of $4000 of the purchase money originally embraced in the judgment, payable at the same time, with semi-annual interest; and to receive a conveyance of the city lots as a security for the payment of the other $6000, in the same manner. In pursuance of this agreement the judgment was discharged. And on the 23d of January, 1833, Thorn and Frink, and their wives, gave to Williams their bond and mortgage upon the third of the city mills, conditioned to pay the $4000 on the 10th of September, 1837, with interest thereon semi-annually. On the same day they also’ gave to Williams an absolute deed of the city lots; which deed was acknowledged on the 24th, and was recorded as ,a deed .on the-25th of January, 1833. The consideration mentioned in the deed was $6000. Subsequent to the execution of .this deed, Williams gave to Thorn and Frink a .contract .fo eqnyey the city lots to them, upon .the payment by them of $10,00,Q, on or before the 10th of September, 1837, without interest. This agreement bears date on the 25th of January, 1833, and was acknowledged by Williams only, in September, 1837; subsequent to the time when it became forfeited, if it was originally executed and delivered to them before that time. But there is no subscribing witness to this contract; nor have I been able to find any proof that it was delivered to Thom and Frink previous to the assignment of their property. For what is said in the answer to the cross-bill, in relation to this contract, does not appear to be responsive to any allegation in that bill.

That this contract to reconvey was not the original agreement upon' which the city lots were conveyed to Williams, on the 23d of January, 1833, is perfectly evident from the proof in the case. Although Williams, in his answer to the cross-bill, denies that he gave to Thorn and Frink any written defeasance, at the time of the execution of the deed, he admits, in a subsequent part of the answer, that there was an understanding between, him and them that if they should punctually pay the $10,000, and semi-annual interest, they should have a conveyance of the city lots, and a discharge of the $4000 mortgage upon the city mills. He also says he is unable to state how or when in particular, this understanding originated. But the testimony of Frink shows that it originated at the time the bond and mortgage, and the deed of January, 1833, were agreed to be received as substituted securities, in place of the judgment, for the payment of the $10,000 and the annual interest. And in the affidavit made by Williams, in February, 1835, he recollected that the real understanding, between him and Thorn and Frink, Vas substantially as stated in Frink’s deposition, and that they continued to pay the semi-annual interest on the whole $10,000, up to and including the payment which fell due on the 10th of March, 1834. This was undoubtedly the old and original understanding between Williams and Thorn and Frink, referred to in the last memorandum in exhibit A. Hence the irresistible conclusion is, that the old and original understanding, upon which the deed and bond and mortgage of January, 1833, were executed, was that the mortgage should be a security upon the city mills for $4000 of the purchase money, and semi-annual interest, and the deed a security upon the city lots for the other $6000, and semi-annual interest. This subsequent contract, therefore, to convey the city lots to Thorn and Frink, upon the payment of $10,000, in September, 1887, without interest, and which amount they agreed to pay in addition to the $4000 bond and mortgage, if they in fact executed that contract, could not convert this deed, which in equity was nothing but a mortgage, into an absolute and unconditional deed.

Previous to the filing of Strong’s bill to foreclose the $4000 mortgage, in September, 1834, that mortgage had been absolutely assigned to him, by Williams. And the deposition of Hustings shows that the amount of the purchase money due to Williams, for that mortgage, was included in the $10,000 mortgage subsequently given to him by Strong, and for the foreclosure of which the original bill in this case was filed. At the time of the conveyance of the city lots to Strong, therefore, on the 27th of April, 1836, the only equitable claim which Williams had upon those lots was the $6000, and the semi-annual interest thereon from the 10th of March, 1834; after deducting therefrom the net rents and profits subsequent to the 14th of June, in that year, when Williams took possession of the city lots. -And as Strong took his conveyance of the city lots with full notice of all the facts, he obtained no other interest therein, as against the owner of the equity of redemption, than Williams himself had. The mortgage back to Williams, therefore, was an equitable lien upon the city lots to that extent only. And the subsequent rents and profits received by Strong, or those claiming under him, while he and they continued in possession under the conveyance of Williams, after deducting necessary expenses, for repairs, insurance and taxes, should be applied to reduce the amount of that lien, and of .the subsequent interest.

The title of Paterson to the city lots, subject to Williams’s lien thereon as mortgagee, under the deed of January, 1833, is derived under the assignment from Thorn and Frink of all their property, to Smith and Stevens, in June, 1834, for the benefit of the assignees and of Paterson, as creditors; those assignees having subsequently sold and Conveyed thé assigned property to Paterson: ' And I do hot see that any equity, against Paterson as the owner of the equity of redemption in the city lotsj can arise out of his covenant of the 5th of May, 1836. The object of that covenant was to carry hito effect his agreement with Strong, of the 13th of the preceding February, to convey all the original interest of Thorn and Frink in the city mills to Strong, in case the same shoilld not be redeemed from the sheriff’s sale. Both parties at that time knew that Strong was the owner of the $4000 bond and mortgage; and if it was intended, by the parties, that Paterson should pay off and discharge the mortgage which Strong himself held upán Thorn and Frink’s original third of the premises, in addition to conveying to him the title which was expected to be obtained through the sheriff’s deed, it would have been proper to have inserted a clause to that effect in the contract, Or in the covenant of the 5th of April, 1836. That covenant Of Paterson also was a personal covenant, or at most a covenant running with the land; and it will hot be discharged, if he is ih fact liable thereon, to Strohg or to his subsequent mortgagees, by the decree which has been made in this caiise. The proper way to protect the rights of the owners or mortgagees of the interest of Thom and Frink in the city mills, which Paterson assumed to guaranty, is tó declare the decree to be without prejudice to the rights of any of the parties to the suit, or of the purchaser under the decree, to any claim they may have, either at law or in equity, for or on account of the covenant contained in the assignment of the 5th of April, 1836.

I cannot see, however,’that any ort’e, except the defendant Strong, has any interest in that covenant; for he was the owner of the $4000 bónd and mortgage at the time he gave the bond and mortgage of $10,000 to Williams. Sis subsequent purchase in of the premises under the former decree, therefore, will not- prevent the purchaser under the decree in this suit, from obtaining a perfect 'title to ’the city mills, or to the two-thirds thereof which belonged to J. Strong in April, 1836, discharged of that mortgage, and of átiy interest which Strohg may be supposed to have acquired by his'-subseqüeht purchase under a former deéree. In other words, a mortgagor of premises, who himself held á mortgage thereon at thé timé he mortgaged his interest in the premises to another, cannot set up such prior mortgage, or ariy interest hé has acquired uiider the same, against his owñ mortgagee, or ány person claiming under him. And á purchaser, under a foreclosure of the mortgage giveti by Strong, will take the premises discharged Of any incumbrance thereoii which Strohg, either ás mortgagee or otherwise, held at thé time he mortgagéd such promises. And for the same reason Suydam, Sage & Co., Who todlt á mortgage upon thé city mills, from S. Strong and M. Strong,- subsequent to thé triné When J. Strohg hid in the premises under hiS decree, have no equities arising out Of Patersoii’s covenant of thé 5fh of April, 1836. For their interest in the mortgaged premises is the same, in every respect, as if Paterson himself had paid Off the decree upon the f4000 mortgage. The clairh against Paterson, therefore, under this covenant, is otíé which is personal to Strong; for which the latter must sée'k his redress in a different form; And as he set up no claim tinder that cOvetiaht, in his answer either to thé Original bill of to the cross-bill, hé hád no right to introduce the covenant in evidence *• if being wholly irrelevant to any matter which Was in issue, Cither in the Original of in the erosS-Suit.-

Thé'decree which should have been entered in this casé, in féferénce to the amount dtié upóti the mortgage for the foreclosure of which the Original hill Was filed, Shbuld hairé beeh to permit the defendant Patersóri to rédeéfai thé city lóts, lipón paying thé ámóüní to which Williams would hávé béeü entitled, ás ágairist thé City lots, if he hád riót tráhsférréd his interest théféiíi to Strong, but had continued in possession thereof hitfisélf; arid to chafge the residue Of the ,f10,000 mortgage,- ábd the coSfS Of foreclosure, upon the city mills. Ahd such decrée shbtílá háfe difectéd thát if Patersóri did riot iedéém thé city lots, by paying Whát Was justly Chargeable thereon, previous to the salé, that the city lots should be sold first; that out of the proceeds Of such sale the master should deduct the expenses of advertising and selling, &c., and the amount which was justly chargeable on that part of the mortgaged premises, and apply it on the decree; and should pay the residue of such proceeds, of the city lots, to the defendant Paterson, as the owner of the original equity of redemption in such city lots under the deed of January, 1883; which deed was intended as a security, in the nature of a mortgage, for the $6000 and interest only. The decree should then have directed a sale of the city mills, or of the part of them which belonged to J. Strong on the 27 th of April, 1836, either as the owner of the decree upon the $4000 mortgage or otherwise; and that the master should, out of the proceeds of that sale, pay the balance due to the complainant Williams upon his decree, including his costs in the original suit, to be taxed; and that the master should bring the residue of the proceeds of the sale of that part of the mortgaged premises into court, to abide its further order.

The complainant Williams having set up an inequitable claim to the whole fee of the. city lots, under the absolute conveyance of January, 1833, and having failed in that claim, he is not entitled to have the costs of the litigation upon the cross-bill, charged upon the proceeds of the sale of the city mills, as against Suydam, Sage & Co. and other junior incumbrancers. And as Paterson has succeeded in establishing the claim set up in his cross-bill, and in his answer to the original bill, as against the false claims made by Williams and Strong, he is entitled to his costs against them upon this appeal, as well as in the original suit.

The decree appealed from must be reversed, and a new decree must be entered, upon the principles above suggested. And if the parties cannot agree upon the amount which is chargeable upon the city lots, a reference must be made, to a master, to ascertain the amount due; after deducting the rents received by Williams, and by Strong, or by those claiming under them, since the 14th of June, 1834, or which they might have received by proper care; allowing them, however, for taxes, insurance and repairs, as an offset against such rents, as directed in the former reference.


text:
    Ellis and wife vs. Messervie and others.
    Where the complainants, in a partition suit, gave a bond and mortgage upon their interest in the land of which partition was sought, during the pendency of the suit, and the premises were afterwards sold, under an order of sale made in that suit, it seems that the holder of such bond and mortgage cannot apply, by a petition in that suit, to which he is not a party, for the payment of the part of the proceeds of the sale which, by the decree, are directed to be paid to the complainant; but that he must seek his relief by bill.
    A mortgage, by a party to a partition suit, upon his interest in the premises of which partition is sought, given to his solicitor in such suit during the pendency thereof, is not even prima facie evidence of the existence of the debt for which such mortgage purports to have been given.
    The assignee of a bond and mortgage, takes them subject to all the equities which existed against them in the hands of the mortgagee; although the assignee pays the full amount of the bond and mortgage to the assignor, without notice of such equities.
    And if a mortgage is fraudulent and void in the hands of the mortgagee, it will also be void in the hands of an assignee thereof for a good consideration, and without notice of the fraud.
    Where a' party represented himself as the agent of the borrowers, upon a negotiation for a loan on bond and mortgage, and afterwards obtained a bond and mortgage to himself, by committing a fraud upon the supposed borrowers, and assigned such bond and mortgage to the lender; Held, that the declarations and representations of the supposed agent of the borrowers were not evidence, as against the mortgagors, of the fact of his agency.
    This was an appeal, by the complainants, John A. Ellis and wife, from a decretal order of the vice chancellor of the first circuit, made upon the petition of James Evans, who was not a party to the suit, for the payment, to him, of a part of the fund belonging to the complainants, which arose from the sale of the lands of Mrs. Ellis, under a decree in partition; Evans being the assignee of a bond and mortgage, given upon the premises, by Ellis and wife, subsequent to the commencement of the suit.

      H. F. Clark & E. Sandford, for the appellants.

      W. C. Noyes, for the respondent.
   The Chancellor.

It is not necessary to inquire whether the vice chancellor had any jurisdiction, upon the mere petition of Evans, who was not a party to the suit, to interfere. and dis-. pose of the fund in question, without the filing of a bill, in the usual way, to determine the validity of the respondent’s, bond and mortgage. For I am satisfied that the bond and mortgage were obtained by a most gross fraud, practised both upon Ellis and his wife. This bond and mortgage, being wholly invalid and inoperative in the hands of the mortgagee, his assignee, who has taken an assignment of a mere chose in action, even if he has given a, full consideration therefor, which, however, I do not believe, cannot enforce, them against the complainants o£ th,eir property.

The story of the principal witness, upon whose testimony the validity of this bond and mortgage is attempted to be sustained, is wholly incredible in itself. It is also contradicted, not only by the affidavit of Ellis, but also by the testimony of others,. And the safety of the community requires that a bond and mortgage obtained by a solicitor, from his client, upon the subject matter of the suit, pending the. litigation, should not be permitted to stand for any purpose, whatever.

Although Duryea may have, represented himself to- Evans as the agent' of the complainants, to negotiate a loan upon bond and mortgage, those representations were not evidence of the fact of his agency, as against, the. complainants; and Duryea himself now- shows, that, if. he ever made such, representations, he knew, them to bo. false, If the bond and mortgage had been. made-, directly to Evans, and only for the amount which was. actually, advanced at the time, the complainants’ property might have been bound by the, mortgage, although such mortgage was pN, taiped from them hy the fraud of their solicitor; provided, the. mortgagee, was ignorant, of the intended fraud-. But here.D, Evans had enough to put him upon inquiry, when he saw a mortgage given to the solicitor in the cause,, and upon the subject matter of the litigation; and which mortgage was not even prima facie evidence of a good consideration. It was his duty, therefore, to -.have gone to Ellis, and inquired of him under what circumstances, and for what consideration, this bond and mortgage were obtained; before he advanced money upon a security which no prudent man would think of buying, without making such inquiry.

The master’s report was clearly erroneous, in stating that the consideration for the bond and mortgage was good and sufficient, and that the mortgage, at. the time of the execution thereof, was a valid lien upon the interest of Ellis in the premises. The appellant’s exception, tó the report of the master, should therefore have been allowed. The decretal order of the vice chancellor, overruling that exception, is erroneous and should be reversed. The respondent’s exceptions to the report were not well taken, and were properly overruled by the vice chancellor. The appellants, therefore, should have been allowed their costs upon the hearing of the exceptions.

It is perfectly well settled that a security which is not negotiable, and which is fraudulent and void in the hands of the assignor, is equally invalid in the hands of the assignee. The respondent’s petition should therefore be dismissed; and the fund in court should be directed to be paid over to the present solicitor for the complainants. But as the complainants submitted to the order of reference, instead of appealing from such order, and thereby raising the question as' to the jurisdiction of the vice chancellor to settle the petitioner’s rights in this suit, I shall not allow to them any costs, upon the reference. They are, however, entitled to their costs upon this.appeal, which was properly brought, to reverse the erroneous order appealed from.

Decree accordingly.

       The decree of the chancellor was affirmed, upon an appeal to the court for the correction of errors, in December, 1846.


text:
    Watt vs. Crawford, adm'r, &c. and others.
    A third person claiming to be interested in a suit in the court of chinceiy, but who is not a party to such s.uit, has no right to interfere with the proceedings therein, without filing a supplemental bill, to make himself a party and protect his rights.
    Before any decree or decretal order has been made, in a suit in chancery, by which a defendant therein has acquired rights, the complainant is at liberty to dismiss his bill, upon payment of costs.
    But after a decree has been made, in a cause, by which a defendant therein has acquired rights, either as against the complainant or as against a co-defendant in the suit, the complainant cannot dismiss his bill without the consent of all parties interested in the decree; nor can the decree be vacated and the bill dismissed, even on such consent, except upon a rehearing, or by a special order to be made by the court.
    Where a decree has been aifirmed, upon appeal to the chancellor, the vice chancellor is not authorized to vacate the decree, and to order the complainant’s bill to be dismissed; even with the consent of the parties to the suit.
    Upon a decree for a sale, by a master, for the benefit of some of the defendants in the suit, as well as for the benefit of the complainant, the complainant’s solicitor is entitled to select the master and to place the decree in his hands to be executed, unless the court has directed otherwise.
    But where the complainant in the suit has no interest in the execution of the decree, or where he consents to its being executed under the direction of a defendant, who is interested in having the sale made, a stranger to the suit cannot object that the decree was placed in the.hands of the master, by the solicitor of such defendant, to be executed.
    This case came before the chancellor upon appeal, and the facts are sufficiently stated in his opinion.

      H. F. Clark & E. Sandford, for the appellant.

      J. T. Brady & J. Rhoades, for the respondents.
   The Chancellor.

This is an appeal, by the [defendant Crawford, from an order of the vice chancellor of the first circuit, allowing James Ferris and Claiborne Ferris, the respondents, to enter an order dismissing the bill, in this cause, as against'the complainant, and setting aside a sale of the mortgaged premises, under the decree made therein in favor of the defendant James Crawford; and granting a perpetual stay of the proceedings of the master, under such decree.

The objection appears to be well taken, that the respondent C. Ferris, who was not a party to this suit, had no right to interfere with the proceedings therein, without making himself a party, by filing a supplemental bill to protect his rights. (Ball v. Tannard, 6 Mad. Rep. 275. Foster v. Deacon, Idem, 59. Bozon v. Bolland, 1 Russ. & Myl. 69.) And the other petitioner, J. Ferris, who is a party to the suit, swears that he has no interest in this application. It is unnecessary, however, to put the decision of this case upon any technical objection to the form of the application ; except as an answer to objections of form, which are urged against the appellant’s right to proceed under the decree. For the merits of the case, upon the papers before the vice chancellor, were clearly with the appellant Crawford.

By adverting to the facts it is perfectly evident, that there was an unwarrantable attempt to defraud the creditors and the minor children of the decedent, William Crawford, out of the property to which they were entitled. Whether Oakley, the original administrator, was a party to the fraudulent attempt, or was ignorant of his claim to be subrogated to the rights of Watt, as against the mortgaged premises, it is unnecessary to inquire. But when the vigilance of the assistant vice chancellor had frustrated the fraudulent attempt which was made while Oakley was a party to the suit, it became necessary to get rid of the effect of the decree, which had established the right of the administrator de bonis non; and for this purpose the stipulation of the 4th of January, 1841, was obtained.

What would have been the effect of a common order to dismiss the bill, in that stage of the suit, upon the right of Crawford, the administrator, to proceed under the decree, without applying to set the order aside as irregularly and improperly obtained, it is not necessary now to inquire; as no such order was in fact entered. The question here is, whether it is either just or equitable, as to the appellant, to permit an order to be entered at this time, upon that stipulation; which stipulation none of the parties had any right to make, without the consent of Crawford, and which ‘was in fact án"áctúál fraud Upon the tights which Crawford had obtained under the decree. Before any decree or decretal order has been made, in a suit in chanóéry, by which a defendant therein has acquired rights, the complainant is at liberty to dismiss his bill, upon payment of costs. But.after-a decree has been made, by which a defendant has acquired rights, either as against the complainant or as against a co-defeftdantih the suit, the complainant’s, bill cannot bé dismissed without- destroying those rights. The complainant, iñ such ajease, Cannot dismiss, without the consent of all parties interested in the decree; nbr even with such Consent, without a ré-héaringybr tipóñ a special Order to be made by the court. (Lashley v. Hogg, 11 Ves. 602.) And in this case, if Bogardus, Who Was thé nominal solicitor for the two' defendants Whose interests, under this défefeé, were adverse to each other, was in fact appointed by Crawford as his solicitor, he Was guilty of a gross violation of his duty to that client, to attempt to destroy the right which hé had acquired Under the decree. The other parties interested hi the mortgaged premises, who procured this stipulation to be signed by their solicitor, and by the solicitor for the cóñiplainaht also, well kñéW, Or at least they wefe bound to know, as honest filen, that neither CraWford ñor his solicitor could properly consent to such an arrangement, which upon its face Was a gross fraud upon the creditors, and Upon the orphan children of William Crawford. I am perfectly satisfied, however; from the évidehcé before me in this case, that the administrator de bonis non knew nothing Of that fraudulent arrangement; and that the stipulation was a fraud upon him, as well as upon the estate Which hé represented. 'The stipulation is therefore a mere mlllity, and ought not to have any-effect whatever upon the proceedings Under the decree.

The appeal from the decree, in thé ñamé of Crawford, without his knowledge or consent, and when he had an interest in sustaining that decree, if he had been aware Of its existence, appears to have befen another device to defraud the creditófS and the children of the'decédent. And thé decféé of affirmance, which was subsequently ffegUlafly obtained, overreached this fraudulent stipulation; and deprived the vícé cháñcelibí Of the pOWCf to enter an order dismissing the bill. For he has no jurisdiction thus to annul a decree which has been affirmed upon appeal to the chancellor. And a part of the decree which was affirmed upon such appeal is that which directs- a sale of the mortgaged premises; which premises cannot be sold under the decree, for any purpose, if the bill is dismissed.

I am satisfied also that the instrument called a release, a copy of which is annexed to the moving papers, was obtained by-fraud and imposition; and that the account of the manner in which such release was obtained, as given in the affidavit of Crawford, is substantially correct. Indeed the instrument, on its face, corroborates such statement; for it recites that James Ferris has agreed and undertaken to pay all the debts of the estate of W. Crawford. But there is no pretence that J. Ferris ever furnished the administrator de bonis non with any evidence of such agreement on his part. And the creditors would never have heard of that agreement, if Crawford’s eyes had not subsequently been •opened by the proceedings against him before the surrogate. But even if James Ferris had given a bond with sureties to pay all the debts, this release could not stánd for a moment. For he was well aware that a decree in favor of Crawford’s estate had been made, for a sum much beyond the amount of any debts of the estate which were then existing, and that it was a lien upon real estate which was sufficient to pay it. He therefore knew that this release would be a gross fraud upon the orphan sisters of the administrator, even if such administrator was himself fully aware of all the facts. Again; it appears that James Ferris had no interest in the mortgaged premises at the time of this release. And it is at least doubtful whether a mere'stranger, who is not named in the release, and who has paid no consideration therefor, could set it up as a release to himself; even if it was honestly obtained.

It remains to consider whether there was any irregularity, which either of the parties can take advantage of to set aside the sale by the master. After the decree of affirmance, notice was given to the solicitor for these petitioners, or at least to the only one of them who now pretends to have an interest in the premises, that the premises would be advertised and sold unless the amount of the decree was paid. Notwithstanding this notice, no application to stay the proceedings, upon the ground of irregularity was made by any one, until after the premises had been sold by the master, under the decree. This of itself is a sufficient answer to the objection that the administrator could not proceed to a sale under the decree without an order of the court, allowing. him to proceed; instead of the complainant’s solicitor. For a party who wishes to set aside a proceeding, upon the ground of a technical irregularity merely, must apply to the court the first opportunity. In this case, therefore, if these petitioners could apply at all, and if there was such a technical irregularity, they should have applied,^the moment the premises were advertised for sale by the master; instead of waiting until after the whole expenses of the sale had been incurred.

Where a sale is to be had, under a decree, for the benefit of some of the defendants, as well as for the benefit of the complainant in the suit, the complainant’s solicitor prima facie has the right to select the master and place the decree in his hands to be executed; unless the court otherwise directs. But where the complainant has no interest in the execution of the decree, or where he consents to its being executed under the direction of the defendant, who is interested in having a sale made, another person who is not a party to the suit, or who has no, interest in the question, cannot object that the decree was delivered to the master by the defendant’s solicitor, to be executed, instead of the solicitor for the complainant. The sale in this case was therefore properly made.

The order appealed from is erroneous, and must be reversed with costs, to be paid by the respondents J. Ferris and C. Ferris; and their petition must be dismissed with costs to be taxed. And the proceedings are to be remitted to the vice chancellor, to the end that the master may proceed and complete the sale and file his report; so that the purchaser may obtain possession of the premises without further delay.

         The decree of the chancellor, in this case, was affirmed, upon appeal to, the court for the correction of errors. (See Ferris v. Crawford, 2 Denio, 595.)


text:
    Guild, executor, &c. vs. Peck and others.
    Where the husbands of two residuaiy legatees, of the testator, cited the executor to account before the surrogate, and the executor appeared and rendered his account, and the surrogate proceeded to make a decree for the payment of the residue of the personal estate to the two daughters of the decedent, but without citing the parties interested in the estate to attend the taking of the account; Held, that it was not a decree for the final settlement of the account of the executor; and that an appeal from such decree could not be made after the expiration of thirty days from the entry of the decree.
    Where a feme covert is a legatee, a decree of the surrogate, made upon the application of her husband, in his own name, will not be binding upon her.
    Where the husband, in right of his wife, is entitled to an interest in the personal estate of a decedent, proceedings to call the executor or administrator to account, before the surrogate, should be instituted in the joint names of the husband and his wife.
    But where a legacy is given to a feme covert, for her separate use, the proceedings before the surrogate, against the executor, to .compel the payment of the legacy, should be instituted in the name of the feme covert only, by her next friend.
    Where a legacy due to a feme covert, as her separate estate, is paid over to her by the executor, under a decree of the surrogate, obtained upon the application of her husband, and is accepted by her, it seems such payment will protect the executor, not only as to the payment, but also from a further accounting to her.
    The receipt of a feme covert, for a legacy which is bequeathed to her as her separate property, is a good discharge for such legacy; as to which she is to be considered and treated as a feme solo.
    This was an application to dismiss an appeal from the sentence or decree of the surrogate of the county of Saratoga, upon the ground that such appeal had not been brought within the time allowed by the statute for appealing. The testator, by his will, bequeathed to his wife, who survived him, a legacy of $1000 and all his household furniture and bedding. And after devising certain real estate specifically, he gave and bequeathed all the rest and residue of his estate to his two daughters, Nancy, the wife of Ira Peck, and Ann Eliza, the wife of A. N. Knight, to be divided equally between them, as their exclusive property; free from the control of their present or any future husbands. Upon the application of Peck and Knight, whose wives were the residuary legatees, but who did not join with their husbands in the application, the surrogate cited the executor and only son of the testator to account. Upon the return of the citation Peck and Knight appeared before the surrogate. But no citation was asked for, by the executor, requiring the creditors, or next of kin, or the legatees of the decedent, to attend the settlement of the account; as directed by the statute, where an executor or administrator desires to have his account finally settled. The surrogate, however, received the account of the executor, and proceeded to take testimony between the parties as to the correctness of that account. And with their consent he decreed that a certain bond'and mortgage, purporting to have been assigned by the testator to two of his grandchildren, belonged to them, and that it should be delivered over to Peck and Knight for the use of such grandchildren, With the like consent of the executor, and of Peck and Knight, the surrogate directed and decreed that a note given to the testator by N. G. & W. Philo, should be delivered over to Mrs. Peck and Mrs. Knight, as the residuary legatees. He also decided and decreed that, after allowing the executor for his payments, commissions, and expenses of administration, there remained in his hands $2769,84. From this amount the executor was allowed to retain the sum of $1500,. as a contingent fund, to pay a claim in his favor for $1200 and costs; which claim had been allowed to him by a previous decree of the surrogate, but which decree had been appealed from, and was then pending and undecided. And the executor was decreed to pay the balance of the $2769,84, with interest, to Mrs. Peck and Mrs. Knight, as the residuary legatees, in equal proportions. He was also decreed to pay to the husbands of such legatees $51,34 for their costs. The decree was entered on the 10th of September, 1844, and on the 6th of December thereafter the executor appealed from the same.

      R. W. Peckham, for the appellant.

      G. W. Kirtland, for the respondent.
   The Chancellor.

The only question which arises upon this application is, whether the decree appealed from is a decree for the final settlement of the account of the executor; so as to entitle the appellant to three months, from the time of recording such decree, to appeal from the same, within the intent and meaning of the provisions of the revised statutes on that subject. (2 R. S. 94, § 67. Idem, 610, § 105.)

The statute contemplates two modes of rendering accounts, before the surrogate, by executors and administrators, and of having such accounts adjusted. One of these is called the final settlement of the account. The other is more properly an adjustment of the account, as between the executor or administrator and a particular creditor or legatee, for the purpose of determining their rights as between themselves, than a final settlement of the account; although the decree of the surrogate may be final, as between the parties litigating the matter before him, so far as his decision professes to go. Thus a creditor, or a legatee, may apply to the surrogate, under the provisions of the 18th section of the title of the revised statutes relative to the rights and liabilities of executors and administrators, (2 R. S. 116,) and if the executor or administrator does not admit that he has sufficient in his hands to pay all the debts, in the one case, or all the debts and legacies, in the other, the surrogate must necessarily inquire and ascertain the amount of assets in the hands of the executor, or administrator, before he can decree payment. A similar inquiry may be necessary where a creditor, who has obtained a judgment at law against the personal representatives of the decedent, applies to the surrogate for leave to take out execution on such judgment. (2 R. S. 116, §§ 20, 21.) An adjustment of the account, as between the parties litigant, is also indispensable where one of the residuary legatees, or next of kin, applies for his distributive share of the estate; as authorized by the 18th section of the title of the revised statutes before referred to. And in all these cases, if eighteen months have expired, after the granting of letters testamentary, or of administration, the creditor, legatee, or next of kin, in his petition to the surrogate for the payment of his debt or legacy, or of his distributive share of the estate,' or for leave to take out execution upon a judgment at law, may also insert a prayer that the executor or administrator render an account of his proceedings to the surrogate. Any creditor, legatee, or next of kin of the decedent, who has a claim against the estate, after the expiration of eighteen months, may also apply for an account of the proceedings of the executor or administrator, although he does not then seek for the immediate payment of his debt, or legacy, or of his distributive share of the estate; or the surrogate may, ex officio, direct such an account to be rendered to him.

But in none of these cases can there be a final settlement of the account of the executor, or of the administrator, within the meaning of the provisions of the revised statutes on that subject ; unless the executor or administrator thinks proper to cite all the creditors, legatees, and next of kin of the decedent, who are not already parties to the proceedings, to attend the final settlement of his account; which he is authorized to do, either under the 60th or the 70th sections of the article of the revised statutes relative to the duties of executors and administrators, in rendering an account, and in making distribution to the next of kin. (2 R. S. 93, 95.) Where such a citation is issued, however, and is served, or duly published as directed by the statute, the surrogate is authorized to proceed and make a final settlement of the accounts of the executor, or administrator, and to settle the rights of all persons having claims upon the estate, as creditors or legatees, or next of kin, so far as such rights can be ascertained, and to decree distribution of the estate accordingly; whether such creditors, legatees or next of kin do or do not attend before him upon such accounting.

But in cases where the necessary steps have not been taken by the executors or administrators, the account and the decree founded thereon, is only settled so far as to be binding upon those persons who are actual parties to the litigation before the surrogate; although the rights and claims of other persons incidentally come in question and are decided by the surrogate, in adjusting the claims of the parties who are properly before him. And where either of the parties to such'a decree, which is not upon the face of the proceedings binding and conclusive upon all the creditors, legatees, and next of kin of the decedent, as a final settlement of the accounts of the executor or administrator, is dissatisfied with the decision of the surrogate, and wishes to appeal from such decree, or from any part thereof, he must enter his appeal, and give the bond required by law, within thirty days after such decree is. made by the surrogate.

It is true the appellant, in this case, in his affidavit to resist the application, alleges, that he knows of no creditors who have claims against the estate. And he also claims to have paid the legacy of $1000 given to the widow of the testator: although he claims, in his petition of appeal, that the surrogate has not allowed him for such payment. If the executor wished for a final settlement, therefore, he should have taken out a citation and served it upon the personal representative of the widow, if she had one in tbé county; or it should have been published in the manner required by law, if he did not know who her personal representative was, or if she had none. Or if he knew that her legacy had been paid, and that there were no creditors, and was willing to risk a settlement of his account with the parties who had cited him before the surrogate, he had a perfect right to do so; without impairing his right to appeal from the decree of the surrogate, if it should be erroneous. But in that case he should exercise his right of appeal within the thirty days allowed by law for appealing.

Again; the proper parties were not before the surrogate in this case, to make the accounting binding and conclusive, even upon the residuary legatees of the testator; as neither of those legatees were parties to the proceedings before the surrogate, either in form or substance. The proceedings were not instituted by the husbands of the legatees, in the names of themselves and their wives, which would have been the proper form, of proceeding in the case of ordinary legacies, to which the husbands were entitled by virtue of their marital rights, but in the names of the husbands alone. By a reference to the will, however, it will be seen that the residuary property, of the testator, was bequeathed to his two daughters, as their separate estate, free from the control of their husbands. The proper course, therefore, for these legatees would have been to have instituted the proceedings in their own names, by their next friend; so that the decree of the surrogate would be binding and conclusive upon them as the real parties to the litigation. This decree, however, directs the amount, which is due from the executor, to be paid to the legatees. personally, and not to their husbands. And if the money is actually paid over to the legatees themselves, under the decree, and is accepted by them, it will probably protect the executor in the payment of the money, and also from a further accounting to them. For, as to the separate estate of the wife, she is considered and treated as a feme sole; and her receipt for the separate estate, which belongs to her absolutely, is a good discharge for the same.

The appeal not having been brought within the time allowed by law-for appealing, must be dismissed; with costs to be taxed.


text:
    Sprague and others vs. Duel, survivor, &c.
    Where the mental capacity of a party is such that a jury, upon the execution of a commission of lunacy issued against him, would not be justified in finding him to be of unsound mind, the court will not set aside a conveyance, made by him, although his intellect has become very much impaired, unless an unconscientious advantage has been taken of his situation to obtain such conveyance without a sufficient consideration.
    A conveyance, made by a person of weak and impaired intellect, will not be set aside as improperly obtained, where the consideration of such conveyance was a contingent liability assumed by the grantee, the probable extent of which liability, at the time it was assumed, was equal to the value of the property conveyed; although, by subsequent events, it turns out that the amount of the liability assumed was much' less than the value of such property.
    This was an appeal, from a decree of the vice chancellor of the eighth circuit, dismissing the complainant’s bill. The opinion of the vice chancellor, containing a statement of the material facts in the case, will be found in 1 Clarke's Chan. Reports, 90.

      T. T. Sherwood, for the appellants.

      M. Fillmore, for the respondent.
   The Chancellor.

Two questions are presented for consideration, upon the pleadings and proofs in this case: 1. Whether R. Sprague, the father of the complainants, was so destitute of mental capacity as to be incapable in law of executing a valid deed? 2. Whether an unconscientious advantage was taken of a weakened and impaired mind, to obtain a conveyance from him which ought not, in equity, to be sustained? And upon both of these questions I think the vice chancellor arrived at a correct conclusion.. Although some of the witnesses swear, in general terms, to the mental incapacity of R. Sprague to transact such business, the facts testified to, by all the witnesses who appear to know any thing upon the subject, satisfy me that.he was not of unsound mind, in the legal sense of that term. In other words, I am satisfied that if a commission of lunacy had been issued against R. Sprague, at the time of the execution of this deed, the jury would not, upon the evidence in this case, have been justified in finding him of unsound mind.

It is evident, however, that his mind had been impaired to a considerable extent, by the epileptic fits to which he had been subject for several years. And the helpless situation of his wife had tended still further to break down his spirits. Had the respondent, therefore, taken advantage of his situation to obtain from him a hard and unequal or an unconscientious bargain, this court would not permit the agreement to stand, for any thing more than the consideration actually paid. But here I think the evidence clearly shows that the responsibilities which the respondent assumed were, at the time of the conveyance from R. Sprague to him, at least equal to the then value of the property conveyed. The fair value of the land, in March, 1831, could not have been more than from $20 to $25 an acre, at the utmost; and it is very doubtful whether it was actually worth $20, in the state it was then in. And for this lot of land, worth from $1100 to $1400, at the utmost, the respondent assumed to support Sprague and his wife, both of whom were then between forty and forty-five years of age; the one a lunatic, requiring watchfulness and care, and the other constantly exposed to these repeated attacks of epilepsy. The value of the responsibility Which the respondent assumed, must not be measured by the events which afterwards occurred, but by the probable extent of that responsibility when it was assumed.

There is no evidence that Mrs. Sprague’s insanity had in any way impaired her health. And if she was then forty years of age, her chance of life, according to the tables of mortality, was-about twenty-three years and a half. Calling it worth but two dollars a week to board and clothe her, and to supply her with all needful care and attention, in sickness and in health, the then Value of an annuity of $ 104, for twenty-three years and a half, would have been more than $ 1100. And even if she was forty-five, the value of her support, at that low rate, for the probable duration Of her life, would, if paid down, be more than f>1000; upon the principles on which the purchase of a life annuity is calculated. The chance of the continuance of R. Sprague’s life, owing to fits to which he was subject, was probably not as great Us that of his wife. But calling it twelve years, and the expensé of his board and clothing, &c. only $1,50 per week, the present value of an annuity for the twelve years, would exceed $500. No prudent and discreet man, therefore, who understood the nature of the risk he Was assuming, would have entered into an agreement for their support, as this respondent did, for the full Valué of this farm as it then was; except as a matter of charity to relatives, who were incompetent to provide for themselves during the probable continuance of their lives.

It must be recollected, too, that Duel, by this agreement, was not entitled to any portion of the services of Sprague, or of his Wife. And Sprague being relieved, by this arrangement, from the care of his lunatic wife, and being furnished with a home and With board and clothing for himself as well as his wife, he was at liberty to appropriate the proceeds of all the labor which he Was able to perform, to the support and maintenance of his younger children 5 who were then too yoüng to earn their own living. The disposition which Sprague made of his property, under the advice of the committee and members of the society of friends, with whom he consulted, appears, therefore, to have been more judicious and provident than most men, even in the possession of a strong and vigorous intellect, would have been able to make under similar circumstances. And the respondent having assumed the risk of the continuance of the lives of Sprague and wife until the expenses of their support might have exceeded the value of three such farms, it would be unconscien-tious, and inequitable, to deprive him of the advantage which subsequently accrued to him, by dispensations of Providence that terminated both of their lives so much sooner than could have been anticipated when the agreement for their support for life was made.

It is not necessary to say any thing about the personal property, as William Duel is dead; and the heirs at law, as such, áre not the proper persons to institute a suit as to the personal estate of their father. The executor, or administrator, only, can sustain a suit for the personal estate of the decedent which has been improperly obtained from him, in his lifetime. For this reason the objection, that the bill is multifarious, was not well taken. For these complainants were not entitled to any relief, against either of the defendants, as to the personal property. (See 9 Paige's Rep. 194.)

The decree of the vice chancellor is not erroneous; and it must be affirmed, with costs.


text:
    Dikeman vs. Dikeman and others.
    The object of the pet of May, 1841, to authorize the sale of real estate, in certain cases, to pay assessments and for other purposes, was not to throw upon the court of chancery the burthen of deciding all questions as to the validity of assessments and sales of property in cities and villages, where the property assessed is held by several persons as tenants in common, or by persons having different estates or interests therein ; but to enable a person who is not-the absolute owner in fee of the whole premises assessed, to compel other persons, having estates or interests therein, to contribute their rateable proportions of the assessments which have been legally and properly made, upon the premises. And to entitle a complainant to file a bill for contribution, under that act, he must show that a valid assessment has been made upon the premises, upon which the defendants are interested with him • and that under such assessment the premises have been sold, or are liable to be sold.
    Where the premises have been sold, for the non-payment of an assessment, the complainant,,to entitle himself to an order of the court extending the time for redemption, must not only show that a valid assessment has been made, and that the premises have been properly sold, but he must also verify his bill by oath. His bill also must contain a distinct offer, that in case he discontinues the suit, or his bill is dismissed, he will redeem the premises and pay the interest upon the redemption money from the expiration of the original period of redemption; or if the premises are not redeemed, that he will pay the interest on the redemption, money for the term of such extension.
    And where the complainant, who applies for an extension of the time for redemption, is irresponsible, the court ought not to grant an order of extension, without requiring security from him, that he will comply with the terms of the offer con- ' tained in his bill.
    Where lands have been sold for taxes, or assessments, during the existence of a law which entitled the purchaser to an absolute deed, or to a lease for a limited term, in case the premises were not redeemed within a specified time, it is not competent for the legislature to extend the time for the redemption, and thus to deprive the purchaser of the right to the possession and enjoyment of the premises, without providing an adequate compensation, to the purchaser, for his loss of the use of the premises during the time of such extension.
    The provisions of the act of the 26th of May, 1841, authorizing an extension of the time for the redemption of certain lands, in cities and villages, which have been sold for taxes or assessments, are unconstitutional and void, so far as they relate to sales which had been made previous to the passage of that act.
    This was an appeal, by G. Storms, from an order of the vice chancellor of the first circuit, extending the time to redeem certain lands in the city of New-York, sold for assessments and bid off by the appellant, until six months after the final decree in this cause should be made. The bill was filed in February, 1843, by S. Dikeman, the widow of Matthew Dikeman the younger. It stated, among other things, that in 1815 John Horn died, seised of lands in the city of New-York, of which the lands mentioned in the bill as having been sold for assessments were a part; that by his will he devised one-eighth of his real estate to his daughter Jemima, and her husband Matthew Dike-man, and to the survivor of them, for life, with remainder to the lawful issue of his said daughter, and their heirs forever*; that he devised the other seven-eighths of his estate to his seven other children, in fee; that a partition of the estate was after-wards made, by the mayor’s court of New-York, upon the petition of one of the devisees in fee, and that in such suit one-eighth of such estate, which included the lots sold for assessments, was set off in severalty to M. Dikeman and his wife, and to the survivor of them, for life, and for her issue after her death, under the devise in the will of her father. The bill also stated that Matthew Dikeman died in 1834, leaving his wife and three children, Jemima, the wife of G. Yan Doren, Amelia Ann, the wife of F. W. Jenkins, and Matthew Dikeman, the husband of the complainant, surviving him; that M. Dikeman the younger died in 1836, leaving the complainant and four infant children surviving him; that, by his will, he authorized his executor and his executrix to sell and dispose of all or any of his real estate, and to invest the proceeds upon bond and mortgage, for the benefit of his estate, and to apply the income to the education and support of his wife and children; and gave one-third of the residue of his estate to his widow, for her own benefit, and directed the residue of the income to be applied to the use of the children, until they should attain the age of twenty-one, in such manner as his executor and executrix should direct; and further directed that when the youngest child should attain the age of twenty-one, two-thirds of tfmestate should be equally divided between his children, and the issue of such of them as had died leaving issue, per stirpes ; and that after the death of his wife the other third of the estate should be divided in the same manner.

      The complainant also alleged, in her bill, that Mrs. Jenkins djed in 1842, having, previous to her death, conveyed all her interest in the estate of John Horn, to C. Curtis and others, in trust, to reconvey the same to her in case she should survive her husband, and if she should not, then in trust to eonvey one moiety thereof to her mother, and the other moiety to her surviving husband ■; and that Jemima, the daughter of John Horn, Mr, and Mrs. Van Doren, and the four children of Matthew Dike-man the younger, were still living at the time of filing such bill. The complainant further stated and alleged, that certain real estate, particularly described in the bill, was a part of the lands set off and assigned in severalty, in the partition suit, to Matthew Dikeman the elder and his wife, and the survivor of them for life, and for the issue of the wife after their deaths; that in 1888, an ordinance was passed by the common council of New-York, and approved by the mayor, directing the opening of thefifth pvenue from Twenty-first to Forty-second-street, but whether upon a petition from the owners of land through which said avenue passed, or of the owners of land affected by such opening, or without the presentation of such petition, she was ignorant and could not state i that commissioners of estimate and assessment were appointed, who made their report of the assessment of damage and benefit to the owners of land affected by opening the avenue, which report was confirmed by the supreme cpurt in July, 1838; but whether the proceedings of the commissioners were in all respects, or in any respect, legal and regular, she was not informed or advised; that among the assessments thus made was one of $4651, upon the premises, or intended to be upon the premises, •particularly described in the bill; but what particular description of the premises assessed was contained in the report of the commissioners, or whether the premises were sufficiently designated and described to render the assessment valid, she was not advised.
    The complainant further stated,t in her bill, that sometime in 1837, an ordinance was passed by the common council and approved by the mayor, directing a sewer to be constructed in Twenty-first-street; but whether the common council had jurisdiction to pass the ordinance or to cause the sewer to be constructed, she was not advised; that the report of the commissioners of estimate and assessment was confirmed by the supreme court in November, 1837; but whether the proceedings of the commissioners were in all respects, or in any respect, regular and legal, she was not informed or advised; that among the assessments thus made, for the opening of the sewer, $59,01, was assessed upon ten lots, being part of the property described in the bill as assessed for opening the avenue $ but whether the premises assessed, or intended to be assessed, were well or sufficiently described or designated, so as to be a valid lien on the said lots, she was not informed or advised. The bill then proceeded to state that the said assessments were made to Jemima Dikeman; that the premises described in the bill were sold together, in one parcel, for the payment of the aggregate of the two assessments, with interest and expenses, amounting in all to $5842,63, and were struck off to the defendant Storms, on the 7th of October, 1840, for the term of five thousand years; that a certificate of such sale was executed under the corporate seal of the corporation of the city, according to the statutej and that the premises being actually occupied, and it being necessary, for that reason, that notice should be served, the defendant Storms, on the 26th of October, 1842, served on Jemima Dikeman a notice of the sale, and that the premises had been conveyed to him, stating the amount for which the sale was made, and the subsequent charges, and that unless the consideration money and forty-two per cent interest, and the subsequent charges should be paid to the street commissioner, within six months, ,the conveyance would become absolute, &c. And the complainant further stated that if the sale of the premises to Storms was legal and valid, the same would become absolute, and that she and all other persons interested in the premises would be barred from her and their right of redemption, in six months after the service of such notice on the said Jemima Dikeman; and that she was desirous that the premises should be redeemed, and that the several parties in interest should contribute their proper proportions for that purpose, and that the time for such redemption should be extended, if necessary, for the period of six months after the making of the final decree in this cause. The complainant, therefore, prayed for such extension of the time of redemption, and that the several parties interested in such redemption might be decreed to pay and contribute, for the redemption of the premises, their rateable proportions of the redemption money, according to their several rights and interests in the premises; and that in default thereof the premises, or so much thereof as might be necessary, might be sold in fee simple, and the proceeds applied to such redemption.

      B. W Bonney, for the appellant.

      C. De Witt, for the respondent.
   The Chancellor.

The bill in this case is not properly framed to entitle the complainant to an order extending the time to redeem, under the act of the 26th of May, 1841, to authorize the sale of real estate in certain cases to pay assessments, and for other purposes. [Laws of 1841, p. 325.) The object of that statute was not to throw upon the court of chancery the burthen of deciding all questions which might arise in relation to the validity of assessments and sales of property in, cities and villages, when the ’property assessed is owned by several persons as tenants in common, or by persons having different estates or interests therein: but it was to enable a party who was not the absolute owner in fee of the whole premises assessed, to compel other persons, having estates or insterests thérein, to contribute their rateable proportions of assessments which fiad been properly and legally made upon the premises. To entitle the complainant to file a bill, under this act,.to compel the other parties interested in the premises to contribute, the bill must distinctly allege that an assessment has been imposed upon the premises, which is legal and valid, under which the premises have been sold, or are liable to be sold. For if the bill leaves it doubtful whether the assessment is legal and valid, the other parties interested in the property may demur to the bill; or, they may raise the objection in their answer, so as to have the bill dismissed at the hearing, on that ground. And to entitle the complainant to an order to extend the time to redeem, whereby the purchaser may be kept out of the possession of the property for an indefinite period, without any compensation for the use. of the premises in the meantime, the bill should not only show, that a valid assessment has been made, and that a valid sale has taken place, but it should also be verified by oath. The bill, for that purpose, should also contain a distinct offer, that if the suit should be discontinued, or the bill should be dismissed at the hearing, the complainant would either redeem the premises, and pay the interest upon what was due at the time of the expiration of the original period for redemption, or, if the premises were not redeemed, that he would pay interest on the redemption money during the continuance of such extension. And where the complainant is irresponsible, such an order should not be made, without requiring security that the offer contained in the bill shall be complied with.

In no other way is it possible to protect the rights of the purchaser against bills which may be filed by collusion, between persons having distinct interests in thé premises, for the mere purpose of depriving the purchaser of the benefit of his purchase for an indefinite period, and without paying interest on the amount equitably due to redeem the premises in the meantime. For after the suit has been protracted for years, the complainant may dismiss the bill, as a matter of course, at any time before decree. And even where there is a distinct allegation, in the bill, that the premises were legally and properly assessed, if that allegation is put in issue, by the other defendants who are interested in the premises, the bill will be dismissed at the hearing, of course, in case the complainant neglects to produce the necessary proof to sustain such allegation. Nor can the purchaser, in such a case, litigate the question as to the validity of the assessment, with the complainant and the co-defendants;'so as to deprive them of the power of raising the same questions again, in a court of law, in an ejectment suit to recover the possession of the property.

It ig evident, from the frame of the bill in this case, that the complainant did not intend to charge, even upon her belief, that either of the assessments stated in the bill were properly or legally made, so as. to render them valid and to entitle Storms to the, term in the. premises, under his purchase, in case she or the other defendants should not redeem. Nor did she intend, or expect, to introduce proof to establish the validity of the assessments and of the sale to Storms, so as to entitle her to a decree for, contribution against her co-trustee, and her infant children, and others who would be interested in the redemption of the premises, in case the sale was valid. For throughout the bill she is, very careful to exclude the conclusion that she intends, to admit that either the assessments or the sale were made in such a manner, as to render them legal and valid. This bill must therefore have been filed for the mere purpose of obtaining an indefinite extension of the time to redeem, and without giving. to the.purchaser any equivalent for the loss of interest upon the redemption money, in the meantime. Or, it may have been, filed in. good faith, upon the mistaken supposition that it was, not necessary to. show, that the assessments upon the premises, were legal, or even prima facie legal; but that the question as,to the validity of the assessments; and of the sale, could be litigated in this suit, between the purchaser on the one side, and • herself and; the other owners of the premises on the other. This-. last.supposition,is.the most probable, from the fact that she has made the,corporation of the city of New-York a party defendant in the suit. An order extending the time to redeem could not. legally, be granted upon such a bill; even if; Storms had become the. purchaser of. the premises, subsequent to the passage of the act before referred to, and subsequent to the.act of the 26th of May, 1,8,41. (Laws of 1841, p. 211.) The order in question shoqld, therefore be reversed, even,if it was competent, for the legislature, to divest, the purchaser of rights which he had previously. acquired, under the laws of. the state, which .were in force when he, purchased thp. premises and paid his money therefor. But. the, .constitutional .question, as to the power, of the legislature, to extend the time for redemption, is also, raised upon this.appeal. And as it has been fully discussed, particularly in reference to the provision in the act of the 26th of May, 1841, under which this order was made, I shall proceed to consider it.

By the act of April, 1816, for the more effectual collection of taxes and assessments in the city of New-York, (Laws of 1816, p. 113,) where lands are sold for taxes or assessments, they are to be sold for a term of years, to the person who will advance the amount due, including the interest and .costs, for the shortest term. And the corporation is to give to the purchaser a certificate, describing the lands sold, and specifying the term of years for which the same have been sold, the sum paid therefor, and the time when the purchaser will be entitled to a lease of the lands thus sold. The statute then provides that if the owners of the land, or some one in their behalf, do not redeem such land within the two years from the date of the certificate, by paying the sum mentioned therein, with interest at the rate of twenty per cent per annum, the corporation shall, at the expiration of the two years, give to the purchaser a lease, for the term for which the lands were sold; which lease shall be conclusive evidence of the regularity of the sale. And by virtue of such lease, and of that act, the legislature declared that the purchaser should lawfully hold and enjoy the lands in such lease mentioned, for his own use, against the owners and all claiming under them, until the purchaser’s term therein should be fully complete and ended. These provisions of the act of April, 1816, remained in full force at the time of the appellant’s purchase, in October, 1840, except as to the rate of interest and the rights of mortgagees, and as to the payment of certain expenses subsequent to the sale. (See Laws of 1840, p. 273, §§ 5, 6: Id. p. 336.) When Storms became the purchaser of the premises in question, therefore, if these assessments were valid and the sale regular, his contract with the corporation, under the sanction of a law of the state, entitled him to an absolute lease of the premises at the end of the two years, and to the possession and use of the same, for the full term mentioned in his certificate of sale; in case the owners of the land, or some person for them, should not redeem the same, within the two years, as required by the laws then in force. The question then, which arises under the act of the 25th of May, 1841, is whether it was competent for the legislature to extend the time for redemption, for six months at least, beyond the two years; and thus to deprive the purchaser of the possession and use of the premises for a part of the term which he had purchased therein, without any compensation whatever. It is true the fifth section of the act requires an additional per centage to be paid, in case the owners shall elect to redeem within six months after the service of notice upon the occupant. But such owners are under no obligation to redeem. And there is nothing in the act requiring them to pay the purchaser the rent of the land, or any interest upon the purchase money, during the time he is kept out of possession, where they neglqct or refuse to redeem the premises within the six months. It is perfectly evident, therefore, that the effect of such a law upon the rights of a prior purchaser, who had only purchased a term of one year in the land, would be to deprive him of the half of the value of his purchase, in case the land should not be redeemed at the end of six months; even if the notice required by the subsequent law was served upon the occupant on the same day that the lease was executed. And the value of his purchase would be diminished, to a greater'or less extent, where his purchase was for a shorter or a longer term, in the premises.

Again; by the act of the 26th of May, 1841, under the provisions of which act this order was made, still greater injustice is done to the purchaser, who had contracted. in reference to the former law, which was in force when the sale to him was made. For, in the act of the 26th of May, 1841, no provision whatever is made to compensate the purchaser for his loss of the interest upon the‘redemption money, if the owners elect to redeem at the end of six months after the final decree in the suit; or for the loss of a portion of his term, in case they shall neglect to redeem at the expiration of the time specified in the order of the court. In this case, it is true, the premises were purchased for a very long term. And the shortening of that term, merely for the five or six years which may be necessary to carry a litigated chancery, suit through all the courts, to settle the rights of the respective owners, and' their proportions of the redemption money properly chargeable upon the contingent interests of some of them, under trusts of doubtful validity, may perhaps be considered of but little consequence. But in deciding upon the constitutionality of a law which is general, and which units operation may totally destroy the vested rights of other persons, 1 am not at liberty to declare the law to be constitutional, merely because the injury to one of the parties in the particular case under consideration is comparatively small. For if the law is constitutional in reference to this case, it is also constitutional in reference to the purchase of a term of two or three years only; where the purchaser would probably lose the entire benefit of his purchase, and the whole amount paid for the term, by the éxpiration of such term before the termination of the chancery suit. But even in the case under consideration, if the complainant and the other owners should elect to redeem the premises át the termination of this suit, the purchaser will lose the interest upon more than $8000, for several years; in case this extension of the time of redemption can be sustained. And if they should not redeem, he would of course lose the use of the land, and the privilege of selling it, during the whole period of the pendency of this suit.

The case would have been entirely different, if the appellant had become the purchaser of the lands in question, and had advanced his money upon such purchase, after the passage of the law requiring personal notice to be served upon the occupant, and giving six months thereafter to redeem; and after the passage of this law, authorizing the court of chancery to extend the time to redeem in certain cases. For then the legal presumption would have been that the purchaser intended to assume the burthen of serving a notice upon the occupant, and, knew that the time of redemption would not expire until six months after the service of such notice; and that he also assumed the risk of the extension of the time to redeem, in a case like the present, if this court, in the exercise of a sound discretion, should grant such an extension. But as no such presumption can arise in a case, where by the terms of the act under which the purchase was made, and upon the faith of which the purchaser advanced his money-, such purchaser was entitled to an .irredeemable term in the lands, and to the immediate possession thereof, as soon as he obtained his lease from the corporation, at the end of the two years-.

The. act of 1819, which first required a notice to be served upon the occupant of lands sold by the comptroller for taxes, and allowing such occupant six months thereafter to redeem, was in terms restricted to sales to be made after the passage of the act. (See Laws of 1819, p. 254.) A similar restriction was contained in the first section of the act of April, 1830, (1 R. S. 2d ed. 401, § 90,) which required the purchaser to serve such notice, upon the occupant, within one year. And the second section of the act of the 25th of May, 1841, as well as the provision. in the act of the 26th of the same month, authorizing an extension of the time of redemption by the order of this court, would undoubtedly have been confined to future sales also, if the attention of the lawmakers had been directed to the constitutional objection to those provisions, in reference to purchasers who. had advanced their money upon the faith of the laws, of the state, which were in force when their purchases were made. The language of the act of the 26th of May, 1841, howover, is such in its terms as to embrace sales which had already been made, as well as those which might be made thereafter. It therefore becomes the duty of this court to declare it inoperative and void, as against the appellant, and in reference to the purchase which he had previously made.

The order appealed from must be reversed. But the questions arising in this case, being new and important, I shall not charge the respondent wilth costs upon this appeal.

Decree accordingly.


text:
    McArthur and Curtis, adm'rs, &c. vs. Hoysradt and others.
    A judgment creditor, whose execution has been returned unsatisfied, may file a creditor’s bill against the judgment debtor, to reach the interest of the latter in the estate of his deceased father, without making the personal representatives of the father parties to the suit.
    The proper decree, upon such a bill, is to direct the appointment of a receiver of the property, equitable interests and choses in action Which belonged to the defendant, or in which he had any interest at the commencement of the suit, including the interest of the defendant in his father’s estate; and to direct the defendant to assign such property, equitable interests and choses in action, &c., to the receiver; so that the proceeds thereof may be applied to the payment of the complainant’s debt and costs.
    Where a party who had become insolvent, and who was sued for a debt, conveyed his interest in a farm to his brother, for the purpose of placing it.beyond the reach of his creditors, and the brother agreed to pay the fair value of such interest in the farm, but deducted from the purchase money certain sums which were not equitably due to him from the grantor; Held, that the purchaser was not entitled to hold the sums thus deducted from the purchase money, as against the creditors of the grantor.
    This case carné before the chancellor upon an appeal, by the complainants, from a decree of the late vice chancellor of the third circuit, dismissing their bill with costs. The complainants were the administrators of Adam McArthur, who was. a surety for the defendant, J. A. Hoysradt, upon a note given to Silas Miller. In May term, 1835, after the death of McArthur,, Miller recovered a judgment in the supreme court, against J. A. Hoysradt, as the surviving maker of the note, for about $966-And an execution was issued upon that judgment, and was returned unsatisfied in July term, of the same year. Miller thereupon applied to the Complainants, as the personal representatives of McArthur, the surety, for payment; and they paid him the debt, and took an assignment of.the judgment. They then filed; their bill in .this cause, as a creditor’s bill against J. A. Hoysradt, to reach his interest in property not subject to execution. They also made a further claim against him, for moneys paid by them upon another note, which their intestate had signed as his susety; but which claim had not been prosecuted to a judgment,, at law. And John Hoysradt was made a defendant in the bill, for the purpose of obtaining a decree to set. aside a conveyance by J. A. Hoysradt, to him, of real estate, as fraudulent, and to reach other property in his hands, belonging to J. A. Hoysradt.

      K. Miller, for the appellants.

      S. Stevens, for the respondents.
   The Chancellor.

The vice chancellor was clearly wrong, in supposing that this bill was not properly framed, as a creditor’s bill, to reach any interest,which the defendant J. A. Hoysradt had in the personal estate of his deceased father, or in any other property or things in action, or equitable interests belonging to him. It was not necessary, for this purpose, that the personal representatives of the father should be parties to this suit. For the interest of the judgment debtor in his father’s estate, if it was improperly included in the deductions made from the purchase money of his interest in the farm, could have been assigned by him to a receiver, in the usual way. And it might have been recovered, by such receiver, either upon an application to the surrogate, or by a bill in this court, against such personal representatives. Or the receiver might have sold that interest, at public or private sale, under the direction of the court, and have applied the proceeds of such sale to the satisfaction of the complainants’ debt. An execution having been issued and returned, unsatisfied, before the judgment was assigned to the complainants, it was not necessary for them to go through with the formality of issuing another execution, subsequent to such assignment. (Gleason v. Gage, 7 Paige’s Rep. 121.) The bill should not, therefore, have been dismissed as to J. A. Hoysradt: even if these complainants had no claim against his'co-defendant. But the usual decfee should have been entered, for the appointment of a receiver of the personal property of the judgment debtor, mentioned in his answer as belonging to him at the commencement of this suit, and of any other property or equitable interest which he then had: and also of his two-elévenths of two-thirteenths of the real estate of his deceased father, subject to the life estate of Thomas, as tenant by the curtesy, in two-thirds of the share of his deceased wife. That decree should also have contained the usual directions, to the defendant, to assign all such property, effects and claims, to the receiver, and that the receiver should sell such property, and apply the proceeds to the payment of the complainants’ debt and costs. So much of the decree, therefore, as directed the bill to be dismissed with costs as to J. A. Hoysradt, was clearly erroneous, and must be reversed; and a decree must be made against him in conformity with these principles.

The sale of the three-thirteenths of the farm, to the defendant John Hoysradt, after his brother had become insolvent and was about to be sued upon the note upon which the complainants’ intestate was a surety, is certainly open to the suspicion that the principal object of that sale was to defraud creditors, by putting the property beyond the reach of execution. I can see no other reason for applying the whole of the $628,6?, said to be the price of a part of the personal property of his deceased father, in payment of the $1800, agreed to be given for the three-thirteenths of the farm; instead of deducting, from the $628,62, the amount due to J. A. Hoysradt for his distributive share of the personal estate, and for the distributive share of his sister, Mrs. Schoonmaker, which he had previously purchased. Whatever those distributive shares amounted to was clearly an equitable offset, as against the $628,62. And the balance alone could be honestly applied in part payment for the real estate conveyed to the administrator for his own benefit.

The evidence also shows that the $125 note, given to the Silvernails, for their interest in the personal property of the testator, ought not to have been deducted from the purchase money of the three-thirteenths of the farm. That note was given two days after the conveyance of the interest of the Silvernails in the real estate, to J. A. Hoysradt; for which interest he had given his note, with sureties, for $600. The claim for a share of the personal estate, therefore, was a claim against the personal representatives and not against him. And we accordingly find that he was not a party to that note. It is true, Adam A. Hoysradt says it was given at the same timé as the $600 note, and was for a part of the purchase money of the real estate. But in that he is hot only contradicted by other witnesses, but by the date of the note itself. From the evidence, I have not the least doubt that it was given jn payment of the claim which the Silvernails made upon the administrators, for their shares of the personal estate of their grandfáther. And if it was given for J. A. Hoys-radt’s benefit, in any way, it must have been because it was to be deducted from $628,62, owing to the administrators, in case he should pay that note. The judgment of the Hudson River Bank was also deducted from the $1800, as a part of the consideration money of the deed for the three-fourteenths of the farm. But it appears that the horses of J. A. Hoysradt were, at a subsequent date, turned out to, and sold by John Hoysradt for that amount. J. A. Hoysradt received one of the notes taken on that sale. But Best shows that the other note of $80, taken on. that sale, was purchased by him, of John Hoysradt. The amount of that note should therefore be deducted from the $1800.

Although-1 am not prepared to decree the sale of the three-thirteenths of the farm absolutely void, upon the ground of actual fraud, I am satisfied the complainants have a right to the several claims above mentioned, as between them and John Hoysradt; those demands having been improperly deducted from the purchase money of the farm, as against the creditors of the grantor. The decree must, therefore, be reversed as respects John Hoysradt. And he must be directed to pay, towards the debt due to the complainants, the amount of the $125 note and the interest thereon, which was deducted from the $1800, with interest on the amount of such deduction from the 28th of January, 1835, the date of the deed; the amount of the $80 note, sold to Best, with interest thereon from the 20th of March, 1835; and the amount of the two distributive shares of J. A. Hoysradt in the personal estate of his father, with interest on that amount from the date of the deed of the 28th of January, 1835. The several amounts to be ascertained by a reference to a masteri

Neither party is to have costs as against the other, upon this appeal. But the complainants are to have their costs in the court below, against the defendant J. A. Hoysradt. No costs are to be allowed, as between the complainánt and the defendant John Hoysradt, up to this time. But the costs of the reference to ascertain the amount for which John Hoysradt is to be accountable, if the parties cannot agree upon the same without the expense of such reference, are to abide the further order of the court; upon the coming in and confirmation of the master’s report of the amount due.

Decree accordingly.