text:
    Russell vs. Allen and others.
    Where a junior judgment creditor sells the lands of his debtor, under his judgment, and becomes the purchaser thereof, and at the end of fifteen months from the sale receives the sheriff’s deed therefor, and afterwards the saino premises are sold under a prior judgment, such junior judgment creditor, being the owner of the lands by his purchase, cannot, after the expiration of the year from the last sale, redeem the premises from such sale; for the lien of his judgment was extinguished by his purchase of the premises trader it.
    And such lien is extinguished, although there remains a balance due upon the judgment, beyond the amount of his bid at the sale ; except where the judgment debtor has acquired a subsequent title to the premises, which over, reaches and divests the previous title which such junior judgment creditor obtained under his sheriff’s deed.
    The owner of lands sold under a judgment must exercise his right to redeem them from such sale within^one year. And if an equitable owner of the lands thus sold has a right to redeem, he must also exercise his right within the year; as equity follows the law in such cases.
    Upon a purchase of lands, under a "judgment, which lands are subject to the lien of a prior mortgage given by the judgment debtor, the premises in the hands of the purchaser are primarily liable for the payment of the mortgage debt; and the judgment debtor is neither legally nor equitably bound to pay off such prior mortgage, for the benefit of the purchaser under the judgment.
    Where a trustee applies the trust fund in his hands to the purchase of real estate, and takes a conveyance of the premises in the name of a third person, there is no resulting trust in favor of such trustee for his own benefit; nor is there a resulting trust in favor of his general creditors, under the provisions of the revised statutes. But there is a resulting trust in favor of the owners of the trust fund which has been thus misapplied by the trustee.
    1843. April 4.
    This was an appeal from a decree of the vice chancellor of the third circuit, dismissing the complainant’s bill against Allen and Hawley, two of the defendants, with costs. The object of this suit was to obtain a decree allowing the complainant to redeem a lot of land, in Washington county, which had been purchased by the defendant Hawley, at a sheriff’s sale ; and which had afterwards been conveyed by him to the defendant, Abram Allen. D. Beatty, the judgment debtor, was the owner of the lot or farm in question, in fee, in 1810, and continued in possession to the time of the filing of the bill in this cause. In 1817, Beatty mortgaged the premises to M. Townsend, for $165, which was the only incumbrance upon the premises prior to the Mc-Nish judgment, under which Hawley became the purchaser ; which judgment .was docketed in June, 1824. On the 17th of July, 1826, Russell obtained a judgment, on a bond and warrant of attorney, against Beatty, for $2000 of debt and $10 costs ; the condition of the bond being for the payment of $1000 and interest. An execution was issued upon that judgment and the sheriff advertised and sold the interest of Beatty in the farm in question, on that execution, to the complainant Russell, on the 9th of February, 1828, for $800. And at the expiration of the fifteen months allowed by law for redemption, the sheriff conveyed the premises to Russell. By virtue of that conveyance, the complainant became the owner in fee of the premises, subject to the liens of the Townsend mortgage and the McNish' judgment ; and also subject to a mortgage given by Beatty to the defendant Hawley, in February, 1826, to secure the payment of $404 and interest, which was also a prior lien upon the premises. After Russell became the owner of the premises, subject to these prior liens, Hawley foreclosed his mortgage, under the statute. And on the 13th of March, 1830, the premises were struck off to the defendant Nelson, for $558,30; and were conveyed to him by Hawley, by virtue of the power of sale contained in the mortgage. The complainant alleged in his bill that the farm was purchased by Nelson, under the statute foreclosure, for Beatty, and was paid for with money belonging to the latter ; but this allegation in the bill was denied by the answer. And by the testimony of Beatty, who was examined as a witness for the complainant, it appeared that the money which Nelson received to pay his bid, under the statute foreclosure, was money belonging to the heirs of Grizzy Beatty, in the hands of D. Beatty as her executor j and that Nelson was to have given to Beatty a mortgage upon the premises to secure the repayment of the money to those heirs. In July, 1829, the defendant Allen recovered a judgment against Beatty, for $85, in the court of common pleas of Washington county j and in December, of the same year, the defendant Hawley, and his copartner Grey, recovered another judgment against him in the same court j both of which judgments were due and unpaid on the 24th of December, 1831.
    On the 24th of July, 1830, the sheriff of Washington county sold all the interest which Beatty had in the premises at the time of docketing the McNish judgment, in 1824, under an execution upon that judgment; and Hawley became the purchaser, for $144,06, the amount then due for debt and costs, and took the sheriff’s certificate in the usual form. No attempt was made either by Beatty or Russell, or by Nelson who had purchased under the mortgage foreclosure, to redeem the premises within the time allowed by the statute for the owner to redeem. And shortly before the expiration of the fifteen months allowed to creditors having a lien upon the premises to redeem, Hawley made an arrangement with Allen by which the latter was to take Hawley’s interest in the premises, under the sheriff’s sale, and to pay him the amount of his bid, and the balance then due upon the judgment of Hawley and Grey against Beatty. The object of this arrangement was to enable Aliento obtain satisfaction of his own judgment, against Beatty, out of the property 5 and it was made with the consent of Beatty, who expected that his family would derive some benefit therefrom under a parol promise of Allen. On the 24th of October, 1831, Russell made an affidavit that there was $700 due on his judgment, and presented it to the sheriff and offered to redeem the premises from the sale under the McNish judgment, by paying the amount bid and the interest thereon ; but the sheriff declined receiving the money, because a copy of the docket of the judgment was not produced. He also tendered the money to Hawley, who also refused to receive it, being advised by his counsel that Russell had no right to redeem. The complainant afterwards sent to the clerk’s office for a certified copy of the docket of the judgment, but did not obtain it until after the expiration of the fifteen months.
    The vice chancellor having arrived at the conclusion that the complainant had no right to redeem the premises after the expiration of one year from the time of the sheriff’s sale, when he had himself become the owner, by his purchase under the junior judgment, dismissed the bill as to Hawley and Allen, without examining other grounds of defence set up by them.
    D. Buel, jun. for the appellant.
    Russell, the complainant, as purchaser under the execution on his judgment against D^vid Beatty acquired, after the expiration of fifteen months allowed for redemption, an interest in the lot of land in question, which the court will .protect. (2 R. S. 373, 1st ed. pt. 3, ch. 6, tit. 5, § 61. Bissell v. Payn, 20 John. Rep. 3. Ex parte Peru Iron Com. 7 Cowen, 546.) The interest thus acquired by Russell was not defeated or in anywise affected by the statute foreclosure of Joseph Hawley’s mortgage, and the purchase by Nelson. (2 R. S. 546, 1st ed. pt. 3d, ch. 8, tit. 15, § 8. Benedict v. Gillman, 4 Paige, 58.) Russell had a right to pay off the McNish judgment until after the expiration of the fifteen months from the time of the sale on the execution issued on that judgment. (4 Kent’s Com. 156, 1st ed., 162 2d ed. Powell on Mort. 343, 381, 382. Grant v. Duane, 9 John.

      Rep. 612. James v. Hubbard, 1 Paige, 228, 235. 5 John. Ch. Rep. 491.) The tender made by Russell, on the 24th October, 1831, discharged the lien of the McNish judg ment, and prevented the purchase under the execution maturing into a title. (Jackson v. Crafts, 18 John. 110. Cook & Kane v. Mancius, 5 John. Ch. Rep. 89. Swain v. Perrine, Idem, 482, 491.) It is no objection to the claim and rights of Russell that he did not furnish a copy of the docket of his judgment to the defendants, or to the sheriff, until after the expiration of the fifteen months. Allen had full notice before his purchase of the complainant’s rights, and has no better equity than Hawley had, in whose shoes he stands. (Ells v. Tousley, 1 Paige, 280. Cook & Kane v. Mancius, 5 John. Ch. Rep. 89.) The defendants, Hawley and Allen, cannot in any event claim in equity more than the amount of the McNish judgment, and of the judgments in their favor.

      S. Stevens, for the respondent.
    The complainant, by the sale under the judgment and execution in his favor against David Beatty, ceased to be a judgment creditor of Beatty as to the premises sold, and could only redeem as purchaser or owner. To entitle a party to redeem, his judgment must be a lien upon the premises. (3 Cowen's Rep. 35.) The complainant having purchased the lot at the sale under his judgment, succeeded to Beatty’s right, and his judgment ceased to be a lien upon the lot. He could therefore only redeem as owner ; and the right of redemption expired 24th July, 1831, the sale having been on 24th July, 1830. (4 Cowen, 133. 2 R. S. 371, § 51. 8 Johns. Rep. 333. 2 R. S. 370, § 45, 46. Idem, 371, § 50, 51. Idem, 373, § 58.) Although there was a balance due upon the complainant’s judgment, after deducting his bid of $800, under which he might redeem other lands of his judgment debtor, yet he could not redeem the lot in question, which had been sold under his own judgment and bid off by himself. With respect to this lot he had acquired the title of his judgment debtor, and stood in his shoes, and could therefore only redeem within the year. The foreclosure of Hawley’s mortgage, on the 13th March, 1830, also destroyed all lien which the complainant had by virtue of his judgment. A statute foreclosure and sale is an entire bar to all claim or equity of redemption, of the mortgagor, his heirs and representatives, and of all persons claiming under him or them, by virtue of any title subsequent to said mortgage. (2 R. S. 546, § 8.) The complainant’s judgment was fully paid and satisfied, and therefore was not a lien upon the premises at the time he sought to redeem. If the complainant was a judgment creditor of Beatty, and had a right to redeem the premises in question, he was bound to comply strictly with the statutes which give him that right. (6 Wend. 526.) This he did not do. He did not produce the clerk’s certificate of the docket of the judgment under which he sought to redeem. (2 R. S. 373, § 60.) The agreement set up in the bill, even admitting it to be as there stated, gave the complainant no right whatever, either legal or equitable, to redeem the premises in question. And it is expressly denied by the answer, and no witness proves it, as laid or charged in the bill.
   The Chancellor.

The vice chancellor was clearly right as to his construction of the statute relative to the redemption of lands sold upon execution. The owner of the premises must exercise his right to redeem within the year, or the purchaser will be entitled to a conveyance at the expiration of the fifteen months; unless some creditor whose judgment or decree is a valid and subsisting lien or charge upon the premises, acquires the interest of such purchaser in the manner prescribed in the statute.' (2 R. S. 371, § 50, 51. Van Rensselaer v. The Sheriff of Onondaga, 1 Cowen's Rep. 443.) And as equity follows the law in such cases, a person who claims the right to redeem as equitable owner of the premises must also exercise the right within the year; if such a right exists in favor of an equitable owner who has no legal estate in the premises. Here the lien of the complainant’s judgment was extinguished by his purchase of the premises under it, in February, 1828, even if there was a balance due upon that judgment beyond the amount of his bid; unless his judgment debtor had acquired a subsequent title, to the property, which overreached and divested the previous title which the complainant had obtained under the sheriff’s deed. In that case the balance, if any, due upon the judgment, would have been a lien upon the newly acquired title of Beatty to the property 3 and the subsequent judgments of Allen, and of Hawley and Grey, would also have been legal liens on that title, so as to give them the right to redeem as judgment creditors.

That would have been the effect of the statute foreclosure if Beatty had purchased the premises with his own funds, and had taken a conveyance of the land to himself. For as Russell had purchased subject to the lien of the mortgage to Hawley, the premises in his hands were primarily liable for the payment of the mortgage debt; and Beatty was neither legally or equitably bound to pay off that mortgage for his benefit. (Tice v. Annin, 2 John. Ch. Rep. 128.) But as this sale of the mortgaged premises took place after the revised statutes, the payment of his own money, and taking a conveyance in the name of Nelson, would not have vested the equitable title to the lands in Beatty as a resulting trust. (1 R. S. 728, § 51.) But the conveyance to Nelson would have been deemed fraudulent as against the creditors of Beatty, and there would have been a resulting trust in their favor which could have been enforced, for their benefit, in this court. The complainant’s own evidence shows, in this case, however, that there was no resulting trust in his favor, or in favor of any other of the general creditors of Beatty. For the money which was applied to pay the bid, under the sale upon the mortgage, was a special fund belonging to the heirs of Grizzy Beatty. And if the money was not intended to be loaned to Nelson, upon the security of a mortgage upon the premises, the trust would have resulted in favor of those heirs, by this misapplication of the trust funds belonging to them 3 and not in favor of the general creditors of D. Beatty. I am satisfied, therefore, that the complainant had ,no right to redeem in this case, either as the legal or equitable owner of the premises, or as a judgment creditor of Beatty having a lien thereon, by virtue of his judgment, at the time he attempted to redeem in October, 1831. It is not necessary to enquire whether there was any thing actually due on his judgment at that time ; or whether the allegation in the bill is true that these defendants overreached him and prevented his getting a certificate of the judgment in time to enable him to redeem within the fifteen months.

The decree appealed from must therefore be affirmed with costs.


source: Caselaw Access Project

author: The Chancellor.

license: Public Domain

text:
    Powell and others vs. Murray and others.
    1843. April 4.
    Where an agreement has been acquiesced in for 38 years, and during that pe. • riod one of the parties has died, on a bill filed by the surviving party to set it aside, the representatives of the deceased party will not be required to prove a sufficient consideration for the agreement; but the complainant will be required not only to show that the agreement was without consideration, but also that it was improperly obtained.
    Where a testator in his will charges a legacy on a particular estate, and declares that it is to be raised out of such estate and not otherwise, the general estate of the testator is not liable for the payment of the legacy in the event of the particular estate being insufficient for that purpose.
    Where an executor neglects his duty, by omitting to invest the amount of a legacy paid into his hands, and where he refuses to bring the fund into court, when requested to do so by the legatees, for the purpose of having it secured for them ; upon a bill filed against him by the legatees, to compel him to comply with their request, he will be charged with the costs of the suit.
    But where in the bill the complainants make a further claim against the defendant, which they fail to establish, the parties will be left to bear their respective costs of the prosecution and defence of the suit.
    This was an appeal by the complainants from a decree of the vice chancellor of the first circuit. The material facts are stated, in substance, in the report of the case before the vice chancellor, in 2 Edw. Ch. R. 636.

      G. Sullivan, for the appellants.

      J. L. Mason, for the representatives of John B. Murray.

      S. A. Foot, for O. Kane, executor of J. I. Clark.
   The Chancellor.

The principal object of the bill appears to have been to set aside an agreement made in 1792, between Anne Powell, the complainant, and Murray & Clark who were the residuary devisees of the ¿real estate, in Boston, upon which the legacy of ¿£2000 sterling to Mrs. Powell and her issue was charged. What were the real circumstances of that transaction it is impossible to ascertain with any degree of certainty. But as the complainants thought proper to wait thirty-eight years after the agreement was entered into, and until Murray & Clark were both dead, before the bill in this cause was filed, their representatives ought not to be held to prove a sufficient consideration for that agreement. On the contrary, the complainants ought to be compelled to show, beyond all question, that the agreement.was not only destitute of consideration, but was improperly obtained.

I see by the testimony and documentary proof, that previous to this agreement a difficulty had arisen in respect to the repairs of the premises upon which this legacy was charged. And from which it may be fairly inferred, that the income of the premises was not sufficient to pay the interest on the ¿62000, charged upon such premises, in addition to the ordinary repairs which were required from time to time. And if so, there is good reason to suppose that the property would not have been sold at that time for a sufficient sum to pay the entire legacy. For we know, as a matter of history, that for several years after the close of the revolution the value of property of every kind was very much depressed. Indeed, such was the scarcity of money in Massachusetts, that a year or two after the death of the testatrix a rebellion broke out, and armed forces assembled at Springfield, Worcester, and other places, to prevent the holding of courts for the recovery of debts ; and the state was obliged to raise a temporary army of more than four thousand men to check the progress of the insurrection. It is true, order was restored as early as 1788, and from the time of the meeting of the.first congress in 1789, confidence was gradually restored, and the value of property continued to improve. There is no doubt, however, that money continued very scarce, and the value of property much depressed, as late as 1792, when this agreement was made.

I see by the testimony of G. W. Murray, that previous to this settlement a question had arisen whether the general estate of the testatrix was liable to make good the amount of this legacy, if the particular property upon which it was charged should prove insufficient. And the witness states that Chief Justice Powell contended that the general estate was liable for the payment of the legacy, whether the particular estate upon which it was charged produced more or less ; and that he should look to the estate for both principal and interest, if the estimated value of the sugar house, &c. did not produce enough. He was unquestionably wrong in that respect. For by the terms of the will the legacy is charged upon the particular estate thereafter described. And the testatrix concludes the description of the property by saying that the legacy of ¿2000 is to be raised from the property thus charged, and not otherwise. 1 allude to this fact for the purpose of showing that it was questionable, at the time this agreement was made, whether the property, if then sold, would produce enough to raise the whole amount of the legacy ; so as to entitle Mrs. Powell to the interest on that amount, for life, without depriving her children of a part of the principal of the legacy after her death. This testimony also shows that Mrs. Powell and her husband could not have been ignorant of the provision, in the will of her aunt, which authorized the executors to sell the property for the purpose of raising the legacy.

If the income of the property was not sufficient to keep it in repair and insured against fire, and to pay the whole interest on the legacy, it certainly was a fair subject of compromise. Although it appears that the property was sold two years afterwards, for enough to have paid the whole ¿62000 legacy, it does not follow that either party to this arrangement believed it could have been sold for the same amount in March, 1792, at the time when this compromise was made. It is impossible, therefore, for any one to say, at this time, that Mrs. Powell did not make a good bargain for herself and children, considering the then situation of the property, and the repairs which would be necessary to prevent it from running down. For she secured a certain annuity of f>4G0 to herself for life, and the making of the necessary repairs upon the premises, so that her children should have the whole ¿62000 sterling after her death.

And the fact that her husband did not join in the agreement at the time it was executed is immaterial. For it is perfectly evident that if he was not actually consulted beforehand, he confirmed it afterwards, by acting under it for more than a third of a century. And although he once talked of a chancery suit, he let the matter rest for more than twenty years afterwards. If the agreement was properly and honestly made, in 1792, the fact that the residuary devisees were able to sell the property, two or three years afterwards, for more than the amount of the legacy, cannot alter the case. For there is no connection whatever between that agreement, and the subsequent sale, and the investment of the proceeds to secure the payment of the annuity to Mrs. Powell for life, and the whole capital of the legacy after her death. I think the vice chancellor was clearly right in refusing to disturb the agreement which was entered into in March, 1792.

As Clark "and Murray were two of the executors, and had the right, with the concurrence of their co-executor, to sell the property for the purpose of raising the money for the legacy, if this was a case of recent occurrence it might be proper to require them to show that they did not take any improper advantage of their situation, to obtain from Mrs. Powell a hard and uneonscientious agreement. But after she, and her husband, who was a lawyer of eminence and perfectly competent to protect her rights, have suffered this matter to rest until the only parties who could explain the transaction were in their graves, it certainly would not be right to cast such a burden upon the representatives of those parties at this time.

The executors of Clark had closed this trust, under the laws of the state where their testator was domiciled, and where probate of his will was obtained, many years before this suit was commenced. And as their testator did not receive the fund appropriated for the payment of this legacy, and the complainants had failed in respect to the main object of the bill, they were properly charged with the costs of the executor who appeared and answered.

Murray has not done his duty, in leaving the legacy uninvested, after it was paid over- to him upon the sale of the property of Robins to the Exchange Company. And if the only claim made by the bill had been to have the fund brought into court and secured, by his representatives, it would have been a proper case to charge his estate with the costs of the suit. The security of the fund, for his wife and children, was all that Chief Justice Powell asked in their behalf in his letter of February, 1828; and that request was perfectly reasonable and proper, and should have been immediately complied with. But in connection with that proper claim on the part of the complainants, they have chosen to make this attempt to set aside the original agreement, which had so long been acquiesced in. And having failed as to that, I think the vice chancellor very properly left both them and the representatives of Murray to bear their own costs of the prosecution and defence of the suit.

For these reasons I think the decree appealed from was not erroneous as to the complainants. And it must be affirmed with costs.


text:
    Haggerty and others vs. Taylor and others.
    1843. April 18
    Where the general partners, in a limited copartnership, after the time fixed for the termination of such copartnership, continued to give and take notes in the name of the firm, and some of the notes thus given were transferred to bona fide holders who were not aware that they had not been given for debts due from the firm; Held, that the holders of such notes were not entitled to come in with the creditors of the firm and participate rateably in the assets of the limited copartnership; and that the creditors of the firm were entitled to a preference in payment out of such assets.

      Held also, that if the special partners had made themselves personally liable to the holders of the notes, by allowing the general partners to continue business, in the name of the film, after the time limited for the expiration of the partnership, the remedy of the holders of the notes was by an action at law against the general and special partners to charge them personally.
    The statute having required the terms of a special partnership, and the time of its continuance, to be published at the commencement of its business, no formal notice of the dissolution of the film, at the end of the limited period, is necessary to prevent the general partners from charging the copartnership with new debts contracted after that time.
    This was an appeal by the complainants from an order of the vice chancellor of the first circuit, dissolving an injunction and denying an application for the appointment of a receiver. The complainants claimed to be creditors of the limited copartnership of Booraem & Co., which was insolvent, and to be entitled to a rateable proportion of the assets of the firm in payment of their debt. From the bill and answer it appeareij, that in the summer of 1834, a limited partnership was formed between the four executors of H. Booream deceased, as the special partners, and T. L. Booraem and 'F. L. Clark, two of such executors, in their private capacities, and J. B. Rathbone, as general partners ; and the executors, as such special partners, under an authority contained in the will of their testator, contributed $40,000. The partnership was to continue for two years and six months from the 1st of July, 1834. After the expiration of the time limited for the continuance of the copartnership, the general partners continued to give and take notes in the name of the firm, but became embarrassed and stopped payment in April, 1837. In October, 1838, T. L. Booraem, who was largely indebted to the firm, persuaded the other acting copartners to give to the firm of Booraem & Dedrick, of which he was a member, the notes of Booraem & Co. for $15,000 ; two of which notes, amounting to about $4000, and payable eight' months after date, were transferred to the complainants for a valuable consideration before they became due and payable.

      E. S. Van Winkle, for the appellants.

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

The only question necessary to be decided upon this appeal is, whether the complainants are creditors of the limited partnership, as such, so as to entitle them to share rateably, in the assets of the firm, with other creditors whose debts were contracted before the 1st of January, 1837. The statute requires, among other things, that the persons forming a limited partnership shall state, in their certificate, which is to be acknowledged and filed, the time when the partnership is to commence and the period at which it will terminate. (1 R. S. 764, § 4, sub. 5.) As the terms of the special partnership and the time of its continuance are to be published at the commencement of its business, every person dealing with the firm is presumed to have notice of the termination of the copartnership ; so that no formal notice of the dissolution of the firm is necessary to be given, to prevent any of the general partners from charging the copartnership with new debts, contracted after the termination of the copartnership. The statute also expressly provides, that every renewal or continuance of such partnership beyond the time originally fixed for its duration, shall be certified, acknowledged, and recorded, and notice thereof published, in the same manner as at its original formation • and that every such partnership which shall be otherwise renewed or continued, shall be deemed a general partnership. (Idem, § 11.) The limited partnership of Booraem & Co., therefore, terminated on the 1st of January, 1837, not only as to those who had actual notice of the period limited for its continuance, but also as to those who had constructive notice thereof by the publication of the notice at the commencement of the partnership, as required by the statute. And those who were creditors of the firm previous to January, 1837, are entitled to a preference, and should be paid rateably out of the property which then belonged to the limited copartnership.

If the executors have rendered themselves personally responsible to any new, creditors, as general partners with Booraem, Clark & Rathbone, by carrying on any partnership business in the name of the old firm after the expiration of the time limited for the continuance of the limited partnership, the remedy of the complainants is by a suit at law against them in their individual capacities.

The vice chancellor was, therefore, right in refusing to appoint a receiver of the effects of the limited copartnership, upon the application of these complainants. The order appealed from must therefore be affirmed, with costs.


text:
    The Albany City Bank vs. Schermerhorn and others. The Bank of Monroe vs. The same.
    Where the defendant in a creditor’s bill had let his land to be cropped on shares, and the receiver appointed in such suit went upon the land and gave notice to tire tenants of his appointment, and requested them to deliver the defendant’s share of the growing crops to him ; and the sheriff afterwards, but without notice of the appointment of such receiver, made a more formal levy upon the growing crops, by virtue of executions against the defendants, issued upon judgments at law; and, upon being informed of the claim of the receiver, consented that he should take possession of the crops and dispose of the defendant’s interest therein, and hold the proceeds subject to the order of the court in which the creditor’s bill was filed; Held, that the sheriff was not guilty of a contempt in disturbing the possession of the receiver, as such possession had not in fact been disturbed.

      Held further, that if the plaintiffs in the executions had acquired a prior lien upon the crops, by the issuing of their executions, their remedy, after the possession of the crops was surrendered to the receiver, was by an application to the court where the receiver was appointed, to have the proceeds of the crops applied upon their executions.
    1843. April 18.
    This was an appeal by the sheriffs of the counties of Orleans and Monroe, from a decretal order of the vice chancellor of the eighth circuit, convicting them of a contempt, for levying upon property of the defendant Schermerhorn, which he had been ordered to assign and deliver to the receiver appointed in these causes.

      S. Jewett & S. Stevens, for the appellants.
    A. Taber, for the respondent.
   The Chancellor.

The question whether the sheriffs were in contempt depends upon the fact of the disturbance by them of the possession of the receiver. And I think the relators failed in establishing that fact. The property consisted of growing crops, on lands of Schermerhorn which his tenants had taken to crop on shares. After the appointment of the receiver he gave notice to the tenants of his appointment, and requested them to deliver Schermerhorn’s share of the crops to him. The sheriffs levied upon the crops and advertised them for sale, at which time one of the appellants swears he had not even heard of the appointment of a receiver. Immediately after the levy, the appellants consented that the receiver should take possession of Schermerhorn’s interest in the crops, and dispose of such interest, and hold the proceeds subject to the order of the court of chancery. This- was placing the property in the same situation in which it would have been placed if the receiver had taken the property into his actual possession, in the first instance, and had continued in such possesion. And if the plaintiffs in the executions had acquired a legal lien, by the delivery of their executions to the sheriffs before the appointment of the receiver, and by an attempt to levy, so as to overreach the lien of the complainants in the creditor’s bills, they could not get the property out of the receiver's hands except by an application to the vice chancellor for an order upon the receiver to deliver over the proceeds to them, to be applied on their executions. An application for an attachment, therefore, should not have been made when the possession of the receiver, if he had in fact taken possession, had not been actually disturbed. And if these facts had appeared when the case was formerly before me, upon appeal, I should have directed the sheriffs to be dismissed from the attachments against them, without further useless expense. As the crops were growing upon the lands, the receiver had probably the constructive possession of them from the time when he went upon the farms and claimed the right to the crops, from those who were in possession of the lands on which such crops were growing. But if so, a mere formal levy by the sheriff, without actually interfering with the possession of the receiver, would hardly be considered such a disturbance of the possession as to subject the sheriffs to punishment for a contempt. In Noe v. Gibson, (7 Paige, 513,) the contempt, for which the attachment was directed to issue, was not for the formal levy upon the vessel under the distress warrant, as that did not dispossess the receiver. But the party proceeded against had taken the vessel out of the actual possession of the agent of the receiver, after it had been removed by him to New-York.

The order appealed from is erroneous and must be reversed, and the appellants are to be dismissed from the attachment. But as both parties are in fault in not presenting the fact to the court, in the first instance, that the receiver was in the actual possession of the property when the attachment was first applied for, I shall not charge the receiver with costs. For it is evident that this proceeding has been mistakenly resorted to for the purpose of settling a question which could not be settled in this way, and which in the end must probably be settled in favor of the claim of the complainants in this suit.


text:
    Sanford vs. Jackson and others.
    1843. May 2.
    Where a testator devised all his property real and personal to his wife and to two other persons, to be kept for her use and support so long as she should continue his widow, and until his youngest child should become of age, and then directed that all his property should be divided equally among his children ; and she survived the testator, and afterwards married a second time; Held, that the devise in her favor was not inconsistent with her claim of dower in the testator’s real estate, after his youngest child arrived at the age of twenty-one, and that her acceptance of the devise was no bar to such claim of dower.

      Held also, that the devise of the real estate for her use, during her widowhood, not being coupled with any trust or charge for the support of the children in the mean time, was an absolute devise to her of a particular estate in the premises; which vested the legal title in her during the minority of the children.
    To bar the widow of her dower, by implication, and to compel her to elect, where the testator has not, in terms, declared his intention on the subject by his will, the provisions of the will, or some of them, must be absolutely inconsistent with the claim of dower ; so that the intention of the testator will be defeated, as to some part of the property devised or bequeathed to others, if the widow takes her dower in addition to the provision made for her by the will.
    To compel the widow to elect between her dower and the provision made for her by the will, it is not sufficient that the provisions of the will render it doubtful whether the testator intended she should have her dower in addition to the provision of the will in her favor. But to deprive her of her dower, the terms and provisions of the will must be such as to show an evident intention, on the part of the testator, to exclude the claim of dower.
    A devise and bequest by the testator of all his real and personal estate to his children, in general terms, to be equally devided between them, will not be construed to include a particular estate which one of the children has in some portion of the testator’s real property ; so as to compel such child to elect between such particular estate and an equal share of the property which the testator was authorized to devise.
    But where the testator devises a particular farm to all his children, together with his personal property, to be equally divided between them, without making any exception of or reference to a particular estate which one of the children has in such farm, the child who has such a particular estate in the farm will not be permitted to set it up in opposition to the devise of such farm by the will; but he will be put to his election, between his particular estate in the farm and the equal share of the property given to him by the will.
    This was an appeal by the complainant, and T. Babcock, one of the defendants, from a decree of the vice chancellor of the fifth circuit, in a partition suit. The only question in controversy between the parties was as to the right of Mrs. Jackson, one of the defendants, to dower in the premises, under the following circumstances : E. Babcock, the former husband of Mrs. Jackson, died seized of the premises, in January, 1819, leaving his widow and six children surviving him 3 the youngest of which children was then but five months old. By his will, which was made immediately previous to his death, he devised to his wife all his property, real and personal, after payment of his debts 3 to be kept by her, together with R. Almy and B. Trumbull, as trustees, in trust for her use and support as long as she continued his widow, and until his youngest child should become of age 3 and then he directed that his property both real and personal should be equally divided among his six children. The widow married A. R. Jackson, a year or two after the death of the testator. She and her husband had the exclusive possession of the premises in question, which embraced all the real estate of the testator, from the time of his death until 1839, when the youngest child became of age. And the children, for most of the time during their respective minorities, resided with their mother and stepfather. The vice chancellor decided that the provisions of the will were not inconsistent with the claim of dower 3 and that Mrs. Jackson was not therefore barred of her dower, by the acceptance of the devise and bequest of the testator’s property during her widowhood and until her youngest child arrived at the age of twenty-one years.

      L. H. Sandford. for the appellants.
    The devise to the widow was in lieu of dower. The implication that she should not have both is not only very strong and necessary, but the devise is entirely inconsistent with the claim of dower. Both cannot exist together. Mrs. Jackson cannot, at the same time, take the whole real estate for twenty years, until the youngest child becomes twenty-one, and also one third of it for her own life by way of dower. The authorities on this point seem to be clear and conclusive. (Amb.
      466 ; S. C. 2 Eden, 236; Amb. 682, S. C.; 1 Br. C. C. 14, App. Amb. 730 ; 1 Ves. jun. 335, S. C. 3 Bro. C. C. 252. 2 Ves. jun. 572. 2 Sch. & Lef. 444. 2 Ves. & B. 222. 4 Madd. 119. 2 John. Ch. 468. 7 Cowen, 288. 1 Saxton's Ch. 216, N. J. 1 Dall. 418. 6 Conn. 31.) Mrs. Jackson elected to take the devise, and she is therefore barred of her dower. Twenty years sole and exclusive possession and enjoyment establishes her election. (3 Co. Rep. 27. Gosling v. Warburton, Cro. Eliz. 128. 2 Vern. 581. 10 John. 30.) The devise as to the widow’s interest was not in trust, but was to her directly.

      F. G. Jewett, for the respondents Jackson and wife.
    Mrs. Jackson is entitled to dower in the whole premises, and her claim of dower is not barred by the devise to her, and by her occupancy of the premises until her youngest child became twenty-one. The devise was not expressly made in lieu of dower, and her claim of dower is not inconsistent with such devise. (7 Cowen, 287. 2 John. Ch. 450. 2 Sch. & Lef. 444. 1 Bin. 565. 4 John. Ch. 9.) Mrs. Jackson is also entitled to a life estate in the share of Ruth Babcock, one of the children of the testator. (1 R. S. 2d ed. 742, § 6.) A demand of dower within twenty years was not necessary, as the husband died previous to the revised statutes going into effect. (8 Wend. 661.) The respondents are entitled to costs.
   The Chancellor.

The common law principle upon which the widow is compelled to elect, between her dower- and a provision made for her in the will of her deceased husband, is well settled, and the only difficulty arises in applying it to the varying circumstances of each particular case. Where the testator in terms declares that the provision made in favor of the wife is in lieu of dower, if she accepts the provision she cannot have her dower in the testator’s estate also ; even in those cases where the assignment of her dower would not interfere with any other provision of the will, except such declared intent of the testator. But to bar her of her dower by implication, where the testator has not in terms declared his intention on the subject, by his will, the provisions of the will, or some of them, must be absolutely inconsistent with her claim of dower • so that the intention of the testator will be defeated, as to some part of the property devised or bequeathed to others, if she takes her dower as well as the provision made for her in the will. (Pickett v. Peay, 2 Tread. Const. Rep. S. C. 748. McCullough v. Allen, 2 Yeates' Rep. 10.) And to deprive the wife of her dower, or to compel her to elect, it is not sufficient that the provisions of the will render it doubtful whether the testator intended she should have her dower, in addition to the provision made for her by the will; but the terms and provisions of the will must be such as to show an evident intention, on the part of the testator, to exclude the claim of dower.

The question has been frequently discussed, in England, whether the charge of a legacy or annuity to the wife upon the husband’s real estate, or upon the proceeds thereof, was sufficient to constitute a case for election, and the decisions on that subject have been in conflict. In the case of French v. Davies, (2 Ves. jun. Rep. 572,) which came before Lord Alvanley, in 1795, he refers to the cases previously decided. And he then said it was hardly possible to reconcile the cases of Foster v. Cook, (3 Bro. C. C. 347,) and Pearson v. Pearson, (1 Idem, 292,) with the cases of Arnold v. Kempstead, Villareal v. Lord Galway, and Jones v. Collier, (Amb. Rep. 466, 682, 730.) His decree, however, was in favor of the widow, and in accordance with the decision of Lord Loughborough and Lord Thurlow in the two first mentioned cases. And that decision was followed by Sir William Grant, in Greatorex v. Cary, (6 Ves. Rep. 615.) The subsequent case of Chalmers v. Storil, (2 Ves. & Beame, 225,) decided by the same learned equity judge, eleven years afterwards, is apparently in conflict with his decision in Greatorex v. Cary. But, upon examining the two cases, it will be seen that in the first case the charge of the annuity was upon the testator’s real and personal estate generally •, whereas in the last case, as appears by the opinion of his honor, the real estate devised was particularly described as his English estates. And therefore the devise in the last case was equivalent to a devise' of a particular farm to his wife and two children, to be equally divided between them.

I am not prepared to say that such a distinction does not in fact exist. For the principle upon which the widow is compelled to elect is the same as that upon which this court compels an election in other cases. And if the testator should devise all his real and personal estate to his children, in general terms, to be equally divided between them, such a devise would not be held to include a particular estate which one of the children had in some of his father’s real property ; so as to compel him to elect between that particular estate and the portion devised to him by the will. On the other hand, if the devise to the children was of a particular farm, and of all the testator’s personal property, to be equally divided between them, one of the children would not be permitted to set up a particular estate in that farm as belonging to himself, and also to have an equal division of all the rest of the property, except that particular estate which was neither excepted norreferred to in the will; but he would be put to his election. (See Harrington v. Hughes, 1 Paige, 569.) Sir Thomas Plumer, however, does not appear to have acted upon this distinction in the subsequent case of Dickson v. Robinson, (Jacob’s Rep. 509,) where the devise of the testator’s real and personal estate was made to his wife in trust for herself and children equally; for in that case he compelled the widow to elect.

The case of Miall v. Brain, (4 Mad. Rep. 119,) was placed upon the ground that it clearly appeared that the testator intended the daughter should have the sole and exclusive occupancy of a particular house • and that a devise of his real estate to the trustees must necessarily be discharged of dower, to enable them to give the daughter such such exclusive use of the house. And this rendered it certain that the testator must have intended to exclude the widow from a claim of dower, in the estates devised to the trustees, if she accepted the provision made for her in the will. And in Roadley v. Dixon, (3 Russ. Rep. 192,) although Lord Lyndhurst seemed to think the case of Villareal v. Lord Galway was properly decided, he places his decision in the case before him, expressly upon the provision in the will, that the trustees were directed to occupy and manage the farm at Searby, which constituted a very considerable portion of the testator’s estate, by employing a proper person as bailiff to superintend the same, and to receive and invest the rents for the use of his son during his minority ; which directions his lordship held to be wholly inconsistent with the right of the widow to have one third of that farm set off to her for her dower, at the same time.

In the more recent case of Dawson v. Bell, (1 Keen’s Rep. 761,) where the testator devised all his freehold and copyhold estates, &c. to trustees upon trust to receive the rents and profits for the maintenance of his children, subject to an annuity to his wife so long as she should remain his widow, until the youngest arrived at the age of twenty-one years, and bequeathed his household goods and furniture to his wife so long as she should continue his widow, Lord Langdale decided that the wife was entitled to dower in addition to the provisions made for her in the will. He said in that case, that it could not reasonably be doubted that the testator had no intention to leave to his wife her claim to dower, when he made the will but that the question was whether the devise was of such a nature as to be inconsistent with the enjoyment of dower by the widow. In other words, his decision was placed upon the ground assumed by this court in Yates v. Fuller, (8 Paige’s Rep. 331,) that it was not sufficient, to exclude the claim of dower, that the testator if he had contemplated the subject of dower would probably have inserted a provision in his will declaring the dispositions in her favor to be in lieu of dower; but that to put her to elect, the court must be satisfied that he intended to exclude such claim, either by a declaration to that effect in the will, or by the insertion of some provision therein which was inconsistent with her claim of dower. A similar decision was made by Lord Langdale in the subsequent case of Harrison v. Harrison, (1 Keen's Rep. 765,) where the circumstances were substantially the same. As the case of Reynard v. Spence, (5 Lond. Jurist, 487,) was decided by the same judge, I presume he based his decision, in that case, upon the provision in the will which directed the trustees to complete the agreement for partition ; to enable them to do which it was necessary to have an estate discharged of a claim of dower. I find nothing therefore in any of the English cases inconsistent with the claim of dower, by the widow, in the case now under consideration.

It is difficult to say what the precise meaning of the testator was in devising his property to his wife and others, in trust for her use, so far as the real estate was concerned, during her widowhood and until the youngest child became of age. But as no charge is made on it, for the support of the children in the mean time, it must be considered as an absolute devise ; which was turned into a legal estate in her, during the minority of the youngest child, under the provisions of the revised statutes. (1 R. S. 727, § 47.) The fact that no provision is made for the children during their minorities does not show any intention, however, to deprive their mother of her dower after they became of age. And the devise of all his real estate to her, in general terms, for the same time, would not indicate any intent on the subject of dower previous to the time when-the children are to receive their shares of the estate in possession. For until the youngest of them became of age it was wholly immaterial whether she took the whole real estate under the will, discharged of dower, or took two-thirds of it under the devise and the residue under her common law right of dower. And the question of election can only arise when the two claims come in conflict with each other so as to affect the interests of other parties.

The case of Stark v. Hunter, (1 Saxton's Ch. Rep. 216,) I have not been able to find. But taking it as stated in the appellant’s brief, it appears to be inconsistent with all the cases on the subject either in this state or in England. For an absolute devise to the wife during her widowhood, and to be disposed of according to law in case she should marry again, would leave it subject to her dower after her re-marriage ; where by law the children or heirs of the decedent were only entitled to take real estate by descent subject to the legal right of his widow to her dower therein. The case of Chappel v. Avery, (6 Conn. Rep. 31,) does not appear to have arisen upon a question of election between a common law right to dower and a testamentary provision inconsistent with that right, but upon the question whether the estate to the wife terminated, in favor of the son, upon her re-marriage. It is probable therefore that there was in that case a clause in the will declaring that the provision made for her was to be in lieu of dower. Or there may have been a local statute, as there is in Massachusetts and Pennsylvania, declaring that a devise or bequest to the wife, of any portion of the husband’s property, shall be deemed and taken to be in lieu of dower, unless the testator has declared otherwise in his will. (Rev. Stat. of Mass. 410, § 11. Purdon's Dig. Laws of Penn. 5 ed. 972, § 11.) The case of Creacraft and wife v. Dille, (3 Yeate's Rep. 80, Addison, 350, S. C.) appears to have been decided upon the equitable principle of an agreement between the testator and his wife, that she should accept the provision in the will in full satisfaction of her dower. In Hamilton v. Buckwalter, (2 Yeates' Rep. 389,) the decision was against the widow upon the ground that the will expressly provided that in case of her second marriage she should leave the plantation in the Champeter township, which was devised to her for life or during her widowhood, on receiving a certain pecuniary compensation ; which provision for leaving the lands the court considered as wholly inconsistent with a claim to retain one-third of the plantation for her dower. (See McCullough and wife v. Allen, 3 Idem, 10; Webb v. Evans, 1 Burr. Rep. 565 ; and Hill v. Hernsworth, Lloyd & Goold’s Rep. Temp. Plunket, 87.)

After examining all the cases within my reach, upon the subject of the widow’s right to claim dower in addition to the testamentary provisions in her favor, and particularly the decisions in this state and in England, I have not been able to bring my mind to the conclusion that there is any thing in the testator’s will, in this case, indicating a clear intention on his part to deprive his widow of her dower in his real estate, after his children bad all arrived at the age of twenty-one ; or that suffering her to claim her dower in such estate, for the residue of her life, would defeat his intention in any respect. And although it is not a case entirely free from doubt, I think the vice chancellor was right in allowing to the widow her dower in the premises. The decree appealed from must therefore be affirmed with costs.


text:
    Champlin & Jones vs. Haight & Herring.
    Where an estate was devised to trustees in trust to receive the rents and income of the estate for the use of C. during her life, and to divide the estate. among her children a'fter her death, with an executory limitation over to the issue of such of the children of C. as should die before the time appointed for the distribution of the estate; with‘power to the trustees to sell the real estate and invest the proceeds,«for the purposes of the trust, before the time appointed for a distribution of the same; Held, that a sale of the estate, not for the purpose of investment, but with the avowed intention of distributing the proceeds between C. and her children, immediately, during the lifetime of C. would be a violation of the trust so far as regarded the interests of the issue of the children who might happen to die in the lifetime of C.

      Held further, that a purchaser from such trustees, who had notice at the time of his purchase of the intended breach of trust, would not be protected against the equitable claims of such issue, if the proceeds of the sale should be thus misapplied.
    Where an estate is devised in fee, in remainder, after the termination of a particular estate in the premises, with an executory limitation over to the issue of the devisee in case of the death of such devisee, such dying is to he construed to apply to the time when the remainder is limited to take effect in possession, and not to the time of the death of the testator; and the term issue, in such a case, is a term of purchase and not of limitation.
    The provisions of the revised statutes which declare that a person who pays money in good faith, to a trustee who is authorized to receive the same, shall not be responsible for the proper application of the money according to the trust, will not protect a purchaser who, at the time he purchases and pays the money to the trustee, has actual notice that the sale is not made for the objects of the trust, but with the intention of misapplying the proceeds of the sale in violation of such trust.

      1843. May 2.
    The bill in this case was filed by the surviving and acting executors and trustees of Elizabeth De Peyster, deceased, for the specific performance of a contract, by the defendant Haight, for the purchase of two lots of land in the city of New-York, belonging to the estate of the decedent. The lots in question, together with other lots belonging to the estate of Mrs. De Peyster, were sold at auction by the complainants, in January, 1842 5 and the terms of the sale were, that ten per cent should be paid down, ten per cent on the first of May thereafter, when the deeds were to be given, and the residue to be secured by bond and mortgage, on a credit of five years, with semi-annual interest at the rate of seven per cent per annum. These two lots were struck off to the defendant Haight, the one for the price of $8,600 and the other for $7,950 ; and the terms and conditions of such sale were reduced to writing and signed by the agents of the complainants and of Haight, duly authorized for that purpose. Haight deposited the ten per cent upon the purchase money, in the-trust company, subject to the order of the auctioneer, and took the receipt of the latter therefor, specifying that a good and sufficient title for the lots was to be given by the complainants, and that in case the title was not perfected by the first of May, 1842, the money was to be returned to Haight. The defendant Haight, being advised by his counsel that he would not obtain a perfect title to the premises under such sale, refused to complete the purchase. But he stated in his answer that he was still ready and willing and desirous, and he thereby offered to pay the residue of the purchase money, upon receiving a good and sufficient deed, and the possession of the lots, whereby he should obtain a perfect title 0 to the lots and every part thereof.
    The validity of the title to the lots in question, under the auction sale, depended upon the following facts, which appeared from the pleadings and proofs, or the admissions of the parties. Mrs. De Peyster died ii> 1821, seized of the two lots in question, and of other real estate in the city of New-York; By her will, which was executed in due form of law to pass real estate, she devised <a part of her freehold property, in the will particularly specified, to her daughter, E. S. Champlin, for life, with remainder in fee to her children, or to the issue of such of her children as should have died leaving issue before the time appointed for the remainder in fee to vest in possession. The residue of her real estate, including the two lots in question in this cause, the testatrix devised to E. S, Champlin, W. G. Jones, J. Clark and E. Herring, her executrix and executors, and trustees, and the survivors and survivor of them, in fee, in trust and for the purposes of her will. She then directed them, or the survivors of them, to sell such residuary estate either at public or private sale, or to lease, mortgage, or otherwise dispose of the same, or any part thereof, as they should think advisable, and to vest the proceeds of the sales which they should make, in such securities as they should deem expedient; and after paying all just debts, funeral expenses, testamentary charges, taxes, .assessments and other incidental expenses, they were further directed to give to her daughter, E. S. Champlin, the net income of such residuary estate, and of the proceeds of sales thereof, during her natural life; and if Mrs. Champlin should die before her youngest child had arrived at the age of twenty-one years, then to apply the rents and income to the maintenance and education of her children, until the youngest had attained that age. The testatrix, by her will, further directed her executors and trustees, or the survivors of them, immediately after the death of Mrs. Champlin, if her youngest child was then twenty-one years of age, or if not, as soon as such child should have attained that age, to divide such estate equally among all the children of Mrs. Champlin and Mrs. De Peyster, the two daughters of the testatrix, share and share alike. And she further directed that if any or either of the children of her said daughters should then be dead and leaving lawful issue, the issue should represent the parent, and take such share as the parent would have been entitled to if living.
    Portions of the residuary estate were sold by the executors and trustees from time to time, and the proceeds thereof invested as directed by the will of the testatrix, or applied to the payment of the debts. In November, 1841, eighteen lots remained unsold 3 and Mrs. BePeyster being dead and Mrs. Champlin being more than sixty years of age, so that there was no probability of her having any more children, and all her children but the youngest having arrived at the age of twenty-one years, except one who would be of that age in the course of two or three months, an arrangement was made by all the children of both of the daughters of the testatrix, except J. B. P. Champlin, to purchase the life estate of Mrs. Champlin in this residuary property, and to divide the property during her life time; and that the remaining lots should be sold for that purpose, at public auction, in January, 1842, if they should not have been sold at private sale, at certain specified prices, before that time. In pursuance of this arrangement seventeen of the lots, which remained unsold, were advertised to be sold at public auction, in January, 1842, and were sold accordingly. In the mean time, J. B. P. Champlin, who refused to accede to the agreement to.divide the residuary property during the life of his mother, filed a bill against the executors and trustees and obtained an injunction, restraining the giving of deeds by the executors and trustees upon the sale ; of which injunction notice was given at the time and" place of sale. But the bidders being told that the injunction was obtained merely to embarrass the sale and that a good title to the lots would be given, and that the injuction would be dissolved as soon asan application could be made to the vice chancellor for that purpose, the sale proceeded. The injunction obtained by J. B. P. Champlin was afterwards dissolved, but his suit in chancery to restrain the executors and trustees from dividing the proceeds of the residuary property among the children, during the lifetime of Mrs. Champlin, was still pending when the bill in this cause was filed.
    The assistant vice chancellor decided that the executors and trustees could sell the property and give a good title to the purchasers, under the power in trust to sell the property and invest the proceeds for the purposes of the will 3 but that they had no right to distribute the residuary property, or the proceeds thereof, among the children of the tvro daughters of the testatrix, during the life of Mrs. Champlin. He therefore directed a specific performance of the purchase by the defendant Haight, upon condition that the executors and trustees should elect to convey the premises to Haight, and to have the twenty per cent of the purchase money paid to the clerk of the court, and the bond and mortgage for the residue executed to such clerk; the clerk to he a trustee to invest the money and to pay over the interest thereof during the life of Mrs. Champlin, and to hold the principal in trust for the parties who might be entitled thereto, subject to the further order of the court. He further decided that the costs of both parties should be paid by the complainants, out of any funds of the estate of the testatrix in their hands to be administered 5 and that if the complainants did not elect to convey the premises under the decree, within thirty days, "their bill should be dismissed with costs. The defendant Haight appealed from the whole decree. And the complainants appealed from so much thereof as substituted the clerk as the trustee of the proceeds of the sale, instead of the executors and trustees of the testatrix; and from so much thereof as allowed to the defendant Haight his costs, to be paid out of the trust fund in the hands of the complainants.
    H. W. Warner, for the complainants.
    The complainants, as executors, have the power to convey the whole legal estate. The whole legal estate is in them ; not a mere power. And they are explicitly directed to sell. (1 Ves. sen. 485. 2 Show. 396. 16 John. 588. 8 Cowen, 277. 12 Wen. 602.) The defendant has nothing to do with the equitable interests .and titles in the estate. The sale of the legal estate is subservient to such interests and to the trust by which they are secured. The defendant is not bound to see to the application of the purchase money. The shares given by the will to the children of the two daughters of the testatrix are vested remainders, and were so on the death of trie testatrix. (Boraston's case, 3 Rep. 20. Brown v. Cutter, 2 Show. 153. Roake v. Newell, 1 Maule & Sel. 327.) If one of the children dies and leaves issue before the period for division arrives, such issue will immediately take the dying parent’s share. Even a present division of the estate may be prevented without taking the subject matter out of the hands of the executors. But the defendant has nothing to do with the question of present or future division, or in other words with the administration of the trust as to the proceeds. He wants a legal title and nothing more. To have raised an obligation on the part of the purchaser to see to the application of the purchase money, the power should either have been special in its terms, or so allied to ulterior objects, on its face, as to bring them into view, and thus to bear a special character by construction.

      J. W. Gerard, for the defendant Haight.
    The executors cannot sell for the purpose of dividing the estate upon the youngest child coming of age, but must divide the lots in specie. Nothing can authorize a sale except a case of absolute necessity, for the support of Mrs. Champlin. If the executors can sell, the purpose for which they now sell is not the one for which they are authorized to sell by the will. (6 John. 72.) A devise in trust for the mere purpose of executing certain powers, gives no greater validity to a sale than if the executor had a mere naked power. In both cases the intention of the testator must govern $ and if the sale is not within the intention of the power, the purchaser with notice is no more protected under such a devise than he would be under a mere naked power. (3 Hill, 364-5.) The objection here is that the sale is in fraud of the power. It was not made for the benefit of the ultimate contingent remainders, but to defeat them. And the execution of the power being in fraud of the will, by dividing the estate and terminating the trust, instead of preserving it for those who may be ultimately entitled to the fee in remainder, the sale is void. The purchaser knows the character of the execution of the power, and he cannot therefore be protected as a bona fide purchaser. (25 Wend. 238. 3 Cowen, 651. 14 John. 517. 2 Cowen, 92.) The issue of the children of the testatrix have contingent remainders. (14 Wend. 310. 1 R. S. 718, § 13, 2d ed. 25 Wend. 238 to 241.) Purchasers are bound to inquire into the execution of the power. If not well executed, they acquire no title, especially where they have notice of the defect. (7 Barn. & Cress. 278. 1 Mood. & Ryl. 66. 2 Litt. Rep. 247, 115. 3 Hill, 262, 1 Idem, 111. 3 Idem, 361. 2 Paige, 205. 12 John. 343.) The revised statutes (1 R. S. 724, § 66, 2d ed.) do not apply. This is a case of an invalid execution of a power, by an abuse of the trust, to defeat the provisions of the will, of which the purchaser has notice. (2 Paige, 217.)
   The Chancellor.

It is perfectly evident, from the terms of the will of the testatrix, that the executors and trustees had no right to sell her residuary real estate for the purpose of dividing the proceeds thereof among the children of her two daughters, during the lifetime of Mrs. Champlin ; or for the purpose of raising a fund to pay a gross sum to Mrs. Champlin in lieu of her life estate in the residuary property, or in the proceeds thereof. As the testatrix died before the adoption of the revised statutes, the devise to the executors and trustees, with power to sell and invest the proceeds for the purposes of the will, is valid. But the equitable interests of the devisees, in the proceeds of the property, are the same as they would have been in the real estate itself if there had been a mere naked trust, without the power of sale. The power in trust to the executors and trustees, to sell the property, or any part of it, when they should think it adviseable to do so, was given for the purpose of enabling them to convert real estate into personalty, whenever they should deem it beneficial to the estate to make such a conversion for the purposes of the will; and not for the purpose of distribution. For when the time for distributing the capital of this residuary estate arrives, it will be the duty of the executors and trustees to divide the estate as it then exists; as the power to sell for the purpose of investment or otherwise will then have terminar ted. Whether this residuary property, therefore, continues to be real estate, or is converted into personalty, it is held in trust to pay the net rents and profits or income thereof to Mrs. Champlin for life, and then to divide the same among those who at that time shall be found to be entitled thereto by the terms of the will. The testatrix contemplated the possibility of the death of Mrs. Champlin while she had children under the age of twenty-one ; in which event she intended to suspend the distribution of the property until after the youngest child should have arrived at that age. But she did not intend to have the division made as soon as the youngest child was of age, although the mother should then be living. None of the present children of either of the daughters of the testatrix may ever be entitled to the remainder in fee in this property, as they may all be dead before the time for distribution arrives. If those now in existence, therefore, should receive the proceeds of these sales, and should die before Mrs. Champlin, their issue who are in existence at her death, will have the right to.call upon the executors and trustees to refund the amount thus distributed. And a purchaser of the premises who had purchased from the executors and trustees, with notice that they had agreed to sell for the purpose of making a distribution of the fund during the life of Mrs. Champlin, in violation of their trust, would not be protected against the equitable claims of such issue, although he had obtained the mere legal title to the premises, under the conveyance from the executors and trustees. Where there is a devise in fee in remainder, after the termination of a particular estate, with an executory limitation over to the issue of the devisee, in case of his death, such dying is to be construed to apply to the time when the remainder is limited to take effect in possession, and not to the time of the death of the testator. And the term issue, in such a case, is a term of purchase and not of limitation. The issue in such cases therefore do not take as heirs of the devisee, so as to be bound by his acts, but as substituted devisees under he executory limitation over to them.

The revised statutes provide, that no person who shall actually and in good faith pay a sum of money to a trustee, which the trustee as such is authorized to receive, shall be responsible for the proper application of such money according to the trust; nor shall any right or title derived by him from such trustee, in consideration of such payment, be impeached or called in question in consequence of any misapplication by the trustee of the monies paid. (1 R. S. 730, § 66.) And if the purchaser in this case had paid the money and taken his title, from all the executors and trustees who are now living, without any notice that the sale was made for the purpose of distributing the proceeds among the children, during the life of Mrs. Champlin, in violation of the trust, his title could not have been impeached. But as the next preceding section declares, in express terms, that where the trust appears in the instrument creating the estate, every sale, conveyance, or other act of the trustees in contravention of the trust shall be absolutely void, a purchaser could not be considered as having paid his money to these executors and trustees in good faith, when he had express notice, at the time of the sale, that such sale was not made for the purpose of investing the proceeds in conformity to the trust created in the will, but for the mere purpose of distributing the same during the life of Mrs. Champlin and in violation of the trust. For this reason I think the sale itself was illegal, because it was not made by the trustees for the purpose of carrying,into effect the directions of the will; and if the property should rise in value, that J. D. P. Champlin would have the right, as against this purchaser with notice, to insist that the sale was made in violation of the trust, and that the purchaser was a party to the illegal act of the trustees.

If all those who now are, or hereafter may be, interested in the proceeds of the trust property, were parties to this suit, so as to be bound by the decree of the assistant vice chancellor, the disposition which he has made of the fund might perhaps protect the purchaser, even if the fund should by any accident be lost. But I am not aware of any principle which will authorize this court to substitute its officer for the trustee of the fund, so as to protect the purchaser from the future and contingent claims of the cestui que trusts who may not now be in existence, and over whom the court has no jurisdiction. I cannot therefore compel this purchaser to take a title, under this illegal and improper sale, which is liable to be impeached, not only by J. D. P. Champlin who protested against its validity, but also by the issue of such of the children as may happen to die before Mrs. Champlin.

The proper course for the executors and trustees, if they believe it is for the interest of the estate to sell these lots for the legitimate purpose of investing the proceeds for the purposes of the will, is to abandon the illegal agreement which one of them has made to sell the property and to take a gross sum out of the proceeds thereof for her life estate and to distribute the residue, and again to offer the property for sale under circumstances in which no such questions as are now presented will arise to prevent a fair competition among bidders at the sale. I presume no actual fraud was intended by any of the parties to the agreement of 1841, but they clearly mistook their rights under the will. That, however, will not authorize the court to compel the defendant Haight to invest his money upon a doubtful title, which must almost necessarily subject him to future litigation and expense in case any of the ten children, now living, should happen to die before the time appointed for a division of the trust property.

The decree appealed from must therefore be reversed, with costs to the defendant Haight, and the complainant’s bill must be absolutely dismissed with costs,

       This decree was reversed, upon appeal to the court for the correction of errors, in December, 1843.


text:
    The People, ex rel. Backus, vs. Spalding.
    1843. May 2.
    A supreme court commissioner has no jurisdiction or authority to discharge a party upon habeas corpus, who is in custody upon a commitment for a con. tempt, by a court of competent jurisdiction, plainly and specially charged in such"commitment, and where the time for which the prisoner might lawfully be detained has not expired.
    A discharge of a debtor under the bankrupt act does not operate to discharge him from a commitment for the non-payment of a fine, imposed upon him for an actual contempt, and where such fine is directed to be paid into court to abide the order of the court in relation to the same.
    Where a defendant, in a suit in chancery, is ordered or decreed to pay a sum of money it becomes a debt, and the ordinary precept to commit the defen, dant, for not paying the money according to the order of the court, is in the nature of a capias ad satisfaciéndola ; and the defendant may be discharged from such imprisonment under the insolvent acts, upon a surrender of his property.
    But where a fine is imposed upon a party for a wilful contempt of the court by violating an injunction, or for any other criminal conduct of the like nature, he can neither be discharged under the insolvent laws nor under the bankrupt aot
    Whether a discharge under the recent bankrupt act, will operate to discharge the bankrupt for a commitment for a contempt for the non-payment of a sum of money, payable under an order or decree of the court of chancery; Qucere?

    This was an appeal by the defendant, from an order of the vice chancellor of the eighth circuit, to recommit the defendant upon a conviction for a contempt. The defendant had been convicted for the wilful breach of an injunction, and had been fined for such misconduct, as directed by the statute. After his commitment he was discharged from his debts under the bankrupt act. A supreme, court commissioner, supposing that a fine imposed upon a party for such misconduct was an ordinary debt, from which the defendant could be discharged under the late bankrupt act, assumed the authority to discharge him upon habeas corpus.

      J. L. Curtenius, for the appellant.
    The discharge under the bankrupt law discharged the appellant from the payment of the fine and from the imprisonment on the mittimus to enforce its collection. The fine belonged to the party, the relator. His loss or injury, to indemnify him for which the fine was imposed, was produced by the disposition of the property or money of the appellant on which the relator by his creditor’s bill had a lien. The fine is not a punishment, but a remedy to replace the amount of the loss; when paid, it will reduce so much of the relator’s debt. It is merely a remedy to assist the party in collecting his debt. The whole proceeding is under the control of the party. (7 Paige, 325. 2 R. S. 471, § 48.) If the order inflicting the fine amounted to a judgment, it would not have been a judgment of a higher nature than one recovered for a tort. And such a judgment is a debt from which a debtor maybe discharged under our insolvent laws. (Cowen, 66. 22 Wend. 364. 19 Idem, 629.) In Ex parte Smith, (5 Cowen, 276,) it was held that a discharge under the act to abolish imprisonment for debt, extended to one committed to gaol for not fulfilling an order of filiation and maintenance. Such an order is a debt, and is equivalent to a judgment. (9 John. 367. 3 Hill, 558.) Under the bankrupt act a discharge extends to all debts, contracts or engagements, (17 Wend. 478. 1 John. 38.) The fine inflicted against the appellant1'1 is a "debt, and was therefore discharged by the appellant’s certificate. The vice chancellor had no jurisdiction to recommit the appellant. By the decision of the commissioner the matter was res adjudica ta. (25 Wend. 65.)

      A. Gardiner, for the respondent.
    The commissioner had no authority to discharge the defendant. The bankrupt act under which his discharge was granted is unconstitutional. It is retrospective in its operation. The judgment in this case was obtained prior to its passage. The act authorizes the discharge of the debtor without the concurrence and against the consent of his creditors. The bankrupt act does not extend to a commitment for a wilful disobedience of an order or process of a court of record. And it does not confer upon our state commissioners authority to determine upon the validity of a discharge, granted by the U. S. courts. The commissioner is not a court of justice, within the meaning of the bankrupt act. The defendant was committed for wilfully violating the injunction of this court; the cause of imprisonment being plainly and specially stated on the face of the mittimus. (2 R. S. 207, § 10, sub. 3.) The defendant was convicted and punished as for a criminal contempt. The tine mentioned in the mittimus is neither a debt, contract or engagement, and is therefore not embraced by the defendant’s discharge. The fine is not a debt due the relator; it must be paid into court, and it can only be obtained on the special order of the court. The question in this case has been decided in this court. The bankrupt law is nothing more than an insolvent law. And discharges under these laws have been held not to extend to commitments for fines imposed for a contempt of court in violating an injunction. The party in such cases is not in execution in a civil action ; and the proceeding is not in substance a civil proceeding. (2 Paige, 314. 3 Ves. 504. 1 Cowp. 136. 4 Paige, 283.) There is a distinction between criminal contempts, and those resorted to as a mere mode of collecting a pecuniary demand. The statute in reference to the compensation to the party aggrieved regulates the extent of the fine, but does not alter the nature of the offence. (2 R. S. 443, § 20, 21.) The application of the defendant for a discharge should have been made to the court of chancery. A contrary course would lead to a conflict of jurisdiction. (Eden’s Bank. Law, 429. 1 Hill, 165, 171. Ex parte Bonesteel, per Concklin, J.)

   The Chancellor.

It is perfectly clear that the commissioner in this case had no jurisdiction or authority to discharge the defendant. The statute declares that where, upon the return to a writ of habeas corpus, it appears that the party is detained in custody for a contempt, plainly and specially charged in the commitment, by a court having authority to commit for such contempt, and that the time during which such party may be legally detained has not expired, it shall be the duty of the officer before whom the habeas corpus is returnable, forthwith to remand such party. (2 R. S. 567, § 40.)

It is not necessary in this case to inquire, whether a discharge under the bankrupt' act will operate as a discharge of a commitment, as for a contempt, for the non-payment of a sum of money payable under an order or decree of the court of chancery. But in a case like the present, where the defendant is fined and imprisoned for an actual contempt, and the fine is directed to be paid into court to abide the final order of the court in relation to the same, there is no pretence that the bankrupt law was intended to relieve the defendant from the consequence of his criminal misconduct.

Where the defendant in this court is ordered or decreed to pay a sum of money, it becomes a debt; and the ordinary precept to commit him for not paying it, is in the nature of a capias ad satisfaciendum, and the defendant may be discharged under the insolvent act, upon a surrender of his property. (Van Wezel v. Van Wezel, 3 Paige’s Rep. 38.) But where a fine is imposed upon a defendant for a wilful contempt in violating an injunction, or for any other criminal conduct of the like nature, he can neither be discharged under the insolvent laws nor under the bankrupt act; but he is in the same situation, in this respect, as if such fine had been imposed upon him on a conviction for an assault and battery or for stealing. And until the act of the last session, the court itself, which had imposed the fine for the protection of the rights of the relator, could not discharge the defendant without actual payment.

The decision of the vice chancellor was unquestionably right, and the order appealed from must be affirmed, with costs.

         Affirmed upon appeal to the court for the correction of errors, in December, 1813.


text:
    Tooker and others vs. Oakley.
    1843. May 2.
    Where two administrators filed a bill in the name of themselves and of their co-administrator, without the consent of the latter, and the defendant applied to take the bill off the files and to dissolve an injunction which had been granted thereon, upon that ground, the court permitted the administrators who filed the bill to amend the same, without prejudice to the injunction, by striking out the name of their co-administrator as complainant and making him a defendant, and by inserting an allegation that he was unwilling and would not consent to join in the suit as a complainant.
    If an executor or administrator who is a necessary party, to a suit in chancery, refuses to join with his co-executors or administrators, as a complainant in the suit, the proper course of the latter is to make him a defendant; stating the fact in the bill that he refuses to join in the suit as a complainant.
    But in actions at law by executors or administrators, the proper course is to institute the suit in the first place in the name of all, and if either of them afterwards declines to have the suit prosecuted in his name, the others, who instituted the suit, may by summons and severance obtain leave to continue the suit in their own names only.
    This case came before the court upon a motion by the defendant, to take the complainants’ bill off of the files of the court and to dissolve the injunction obtained thereonj and upon a cross motion, by the complainants, for the appointment of a receiver. The defendant, and the complainants’ intestate were in copartnership at the death of-the latter, and the goods of. the firm were put up at auction, with the assent of the administrators and the surviving partner, and were mostly bid off by the latter. The bill in this cause was filed by W. A. Tooker, in the name of all the administrators, to set aside the sale, on an allegation that it was improperly conducted, so that the property was sold below its value 5 and to have a receiver of the effects of the copartnership appointed, and for an account. The application to dismiss the bill was founded upon the affidavit of ¡N. Oakley, one of the complainants, who swore he was the acting administrator, that he was satisfied that the sale was fair, and that this suit had been instituted by his co-administrator without consulting him, and without his consent.

      L. H. Sandford, for the complainants.

      J. Rhoades, for the defendant.
   The Chancellor.

All the executors or administrators of the testator or intestate must be made parties to a suit in chancery of this description. The practice at law is to bring the suit in the first place in the name of all, and if either of them is unwilling to have the suit prosecuted in his name afterwards, the one who has instituted the suit may then, upon a summons, have a judgment of severance and continue the suit in his own name only. (2 Walf. on Parties, 1530. Went. Off. of Ex. 212.) But in this court, if one of the executors or administrators, who is a necessary party, refuses to join in the suit as a co-complainant, the proper course is to make him a party defendant; stating in the bill the fact that he would not consent to be a complainant in the suit. (Thompson v. Graham, 1 Paige’s Rep. 384. Finch v. Lord Winchelsea, 1 Eq. Cas. Abr. 2. Calv. on Parties, 11, n. 3.) The present suit therefore cannot be carried on in the name of the defendant’s father, as one of the complainants, without his consent. And the other complainants must amend their bill, by striking out the name of N. Oakley as one of the complainants, and making him a defendant, and by inserting a proper averment in the bill that he was unwilling and would not consent to join in the suit as a complainant. If such amendment is made within thirty days it may be made without prejudice to the injunction, and the motion to take the bill off the files and to dissolve the injunction is to be denied. But if such amendment is not made and served upon the defendant’s solicitor within thirty days after service of a copy of the order to be entered upon this application, the motion is to be granted, with costs to be paid by the complainants W. A. Tooker and Phebe Tooker.

The application for a receiver must be denied ; but with liberty to renew it after the bill shall have been amended. And the costs of the defendants upon both of these motions are to abide the event of this suit.