source: Caselaw Access Project

author: The Chancellor.

license: Public Domain

text:
    Reed vs. Wheaton.
    Where a creditor’s bill is founded upon a judgment in the supreme court, or a decree of the court of chancery, so that an execution thereon may be issued to any county, the complainant must show affirmatively, in his bill, that ho has exhausted his remedy, by issuing an execution to the county in which the defendant resided at the time when such execution was issued ; or he must state in his bill some sufficient legal excuse for issuing his execution to a different county.
    If the defendant has removed from the state, or if his residence, upon diligent search and enquiry, cannot be found, the execution may be issued to the county where he resided at the commencement of the suit against him, or the bounty in which his last known place of residence was.
    This was an appeal from the decision of a vice chancellor denying an application to dissolve an injunction. The complainant recovered a judgment against the defendant, in May, 1839. And the bill alleged that an execution was afterwards issued thereon to the sheriff of Genesee countv, which was returned unsatisfied ; but there was no averment in the bill that the defendant was a resident of that county, at the time of issuing the execution. By the answer of the defendant, it appeared that in April, 1839, previous to the recovery of the judgment, he removed into the adjoining county of Niagara, about ten miles from his former residence; and that if an execution had been issued to that county, it could have been levied upon personal property which he had there, and which was subject to a sale on execution, sufficient to have satisfied the debt and costs. The answer also charged, upon information and belief of the defendant, that the sheriff, when he returned the execution unsatisfied, informed the attorney of the complainant that the defendant had removed to Niagara county.
    July 16.

      N. Hill, jun. for the appellant.

      W. L. F. Warren, for the respondent.
   The Chancellor.

It is evident in this case that the complainant has not exhausted his remedy at law on his judgment. And, if the averments in the answer are true, there has not even been a bona fide attempt to collect the debt out of the defendant’s property. But as the allegations in the answer, that the defendant lived in Niagara county at the time of issuing the execution, and that the complainant well knew that fact at the time of filing his bill in this suit, are not responsive to any thing contained in the bill, the vice chancellor would probably have been right in disregarding them, if the bill itself had shown sufficient to have authorized the issuing of the injunction originally. The bill, however, is defective in substance in this respect; as there is no averment therein that the defendant, at the time of the issuing of the execution to the sheriff of Genesee, was a resident of that county, or that he ever had resided there. In the case of Leggett v. Hopkins & Smith, (ante, p. 149,) it was decided that where the judgment was in the common pleas, so that an execution could not be issued to any other county than that in which the judgment was obtained, it would be sufficient to issue an execution to the sheriff of that county, although the defendant resided elsewhere. In such a case it is not necessary, in the bill, to say any thing about the defendant’s residence. But where the judgment is in the supreme court, so that an execution may be issued to any part of the state, or where the bill is founded upon a decree of the court of chancery, the process of which court may also be sent into any county, the complainant who comes into this court for relief upon the ground that he has exhausted his remedy by execution on the judgment or decree, must show affirmatively, by his bill, that he has issued his execution to the sheriff of the county where the defendant resided at the time such execution was issued; or he must insert some other averment showing a sufficient and legal excuse for not sending his execution to the county where the defendant resides. If the defendant has removed from the state, or if his residence, upon diligent search and inquiry, cannot be found, that may be a sufficient excuse for sending the execution to the county where he resided at the time of the commencement of the original suit against him, or where his last known place of residence was. But such an excuse will not avail the complainant where it distincly appeal’s that previous to the filing of the bill here, he is informed that the defendant has a fixed residence in this state; in case he has visible property there subject to sale on execution, sufficient id satisfy the debt and costs. Where it is necessary to si jw that the complainant has exhausted his remedy, by the issuing of an execution to the county where the defendant resides, it is not sufficient merely to describe the defendant in the bill as a resident of a particular town or county; as that description of the defendant, even if it could be considered as sworn to by the complainant, merely relates to the time of filing the bill; and is not an averment of residence at the time of issuing the execution. But here the defendant is not even described as being a resident of the county to which the execution issued, either at the time of filing the complainant’s bill or at any time previous thereto. As there was nothing in the bill to show that the complainant had exhausted his remedy at law, so as to authorize him to come into this court for relief, the vice chancellor was clearly wrong, in refusing to dissolve the injunction, which had been erroneously, allowed upon the bill itself. His decision must, therefore, be reversed, with costs; and the injunction is dissolved.


text:
    Rogers and another vs. Dibble.
    Where a bill Was filed in the court of chancery to correct an erroneous description of premises in a deed, and the bill was dismissed by the court of chancery; but upon an appeal to the court for the correction of errors, the decree of the chancellor was reversed, with costs to the complainants, both in the appellate court and in the court below; Held, that the defendant was not exempt from imprisonment, upon an execution for the recovery of such costs.
    The act to prevent imprisonment for debt does not exempt the defendant from imprisonment on execution, upon every decree of the court of chancery founded on contract; but only in those cases where the suit or proceeding in chancery was instituted for the recovery of money due upon a contract, or upon a previous judgment or decree which was founded on a contract, or for the recovery of damages for the non-performance of a contract.
    A party to a suit cannot be imprisoned upon an execution for the costs of a writ of error or of an appeal, where he would have been exempted from imprisonment upon the judgment or decree against him in the original suit.
    1839. July 16.
    This "was an' application by the defendant to set aside the capias ad satisfaciendum, in this cause, on the ground that he was not liable to arrest and imprisonment. The object of the suit was to reform a deed which had been given to the defendant by D. Boardmán, and which by mistake embraced a piece of land included in a subsequent conveyance from Boardman to the complainants; and also for a perpetual injunction to restrain the defendant from proceeding in an ejectment suit which he had brought against them for that piece of land. The complainants’ bill was dismissed by the vice chancellor, and his decision was affirmed upon an appeal to the chancellor. But upon a subsequent appeal to the court for the correction of errors, both decrees were reversed with costs. .That court thereupon declared and decreed that a mistake had occurred in the description of the premises intended to be conveyed by the deed of Boardman to the defendant. And he was decreed to convey to the complainants the piece of land which by mistake had been included in that deed; and was perpetually enjoined from further proceeding at law to recover from the complainants that piece of land. He was also decreed to pay the complainants’ costs in the court below, as well as their costs upon the appeals. The ca. sa. was issued for the costs in both courts; upon which execution the defendant was arrested and imprisoned by the sheriff.

      L. H. Palmer, for the complainants.

      J. Ellsworth, for the defendant.
   The Chancellor.

Although it is not stated in the affidavit upon which this application is founded that the defendant was a resident of the state at the time he was arrested and imprisoned on this execution, I shall assume the fact that he was so, for the purpose of deciding the question whether he is liable to arrest and imprisonment for the costs in this cause. There is nothing upon the face of the execution which has been issued in this case to show that the suit in which these costs were decreed was founded on contract. No presumption therefore of the defendant’s non-residence can arise from the fact that the sheriff has arrested him thereon ; although he might be liable to an action of false imprisonment for arresting a resident upon an execution which showed on its face that he was not liable to such arrest. It is settled, by several decisions of the supreme court, that if the original action was one in which the parties were exempted from arrest, under the non-imprisonment act, they could not be arrested upon an execution for the costs of a writ of error founded upon the judgment in such suit. (9 Wend. Rep. 430. 13 Idem, 70.) The defendant therefore was not liable to arrest for the costs of the appeals, if he could not have been arrested for the costs in the original suit before the vice chancellor.

Upon a careful examination of the provisions of the act under which this application is made, I am satisfied, however, that this is not a case in which the defendant is exempt from imprisonment on execution founded upon the decree. The statute does not exempt parties from imprisonment upon every decree of this court made in a suit founded upon contract. It is not necessary, therefore, to inquire whether this suit was founded upon the original contract between the defendant and Boardman which by mistake was not properly carried into effect by the subsequent deed that was intended to be given in conformity thereto, or upon the inequitable attempt of the defendant to recover land, by the ejectment suit against the complainants, which had been included in that deed by mistake. The first section of the act provides that "no person shall be arrested or imprisoned on any civil process issuing out of a court of law, or on any execution issuing out of any court of equity, in any suit or proceeding instituted for the recovery of any money due upon any judgment or decree founded upon contract, or due upon any contract express or implied, or for the recovery of any damages for the non-performance of any contract.” (1 R. S. 2d ed. 807.) To exempt either party therefore from arrest upon the process of this court, such process must be an execution issued in a suit or proceeding instituted for the recovery of money due upon some previous judgment or decree founded upon contract, or in a suit or proceeding instituted for the recovery of money due upon a contract either express or implied, or for the recovery of damages for the nonperformance of a contract. But this suit, even if it was founded upon the contract originally made with Boardman previous to the execution of the deed to the defendant, was not instituted either for the recovery of money due upon that contract, or to recover damages for the non-performance of the contract3 for there was no charge or allegation in the bill which would have entitled the complainants to a decree for any money due upon that contract, or for damages for the non-performance thereof by the defendant. The only decree to which they could be entitled, upon the case made by their bill, was a decree to reform the deed 3 or rather a decree for a conveyance to the complainants of the piece of land which was included in that deed by mistake 3 or for a perpetual injunction to restrain the defendant from proceeding at law to recover the land included in the deed by mistake, and to restrain him from using the legal title which he had acquired under the erroneous deed in any manner that was inconsistent with their equitable rights.

The motion to set aside the execution and to discharge the defendant from his arrest thereon is therefore denied, with $10 costs.


text:
    Butler vs. Emmett and others.
    A creditor who has assigned all his interest in a debt against his deceased debtor, to a third person, is not authorized to present a petition to the surrogate to compel the executors or administrators of the decedent to sell the real estate, for the payment of such debt, where the personal property of the decedent is insufficient for that purpose; but the assignee of the debt, who is the real creditor, must institute the proceedings before the surrogate in his own name.
    It seems, that a judgment creditor of the decedent cannot institute proceedings before the surrogate to compel a sale of the real estate of the decedent upon which such judgment is a lien ; nor can he come in and prove the judgment debt before the surrogate, for the purpose of obtaining a distributive share of the proceeds of the real estate which has been sold under an order of the surrogate, subject to the lien of his judgment, according to the provisions of the revised statutes; but his remedy, to obtain satisfaction of his debt out of the proceeds of the real estate of the decedent, is to revive his judgment by scire facias, and to sell the real estate upon execution.
    The purchaser, at a sale of the real estate of a decedent for the payment op debts, under an order of the surrogate, takes the property subject to all the previous incumbrances thereon, by judgment, mortgage or otherwise. And if he wishes to obtain a perfect title to the premises, free from incumbrances. the amount of such incumbrances must be ascertained before the "sale; and the premises must be sold upon the condition that the amount, as thus ascertained, shall be paid out of his bid upon the property, and that the residue of such bid only shall be returned to the surrogate as the proceeds of the sale which are to be distributed rateably among the other creditors of the decedent.
    It seems, that an order of a surrogate may be entered by him, nunc pro tune, as of the time it was actually made, where by mistake, or inadvertence, it was not entered in his books at the time it was made.
    Whether an administrator can apply to the surrogate for an order to sell the real estate, for the payment of debts, before he has made and filed an inventory of the personal estate of the decedent, only verified according to law—gumre ?

    An irregularity in giving notice to the heir at law of the decedent, of an application to the surrogate for an order to sell real estate for the payment of debts, is cured by a subsequent petition of such heir, to the surrogate, for an order to confirm the sales which had previously been made under the former order, and to authorize the administrator to give deeds to the purchasers and to receive the purchase money bid upon such sales.
    An application by a creditor, to compel the personal representatives of the decedent to sell his real estate for the payment of debts, must he made within three years after the granting of letters of administration on the estate. And where an order for the sale of a portion of the real estate has been made, a subsequent application, by a creditor whose claims have not been allowed by the surrogate in the manner prescribed by law, must also be made within the three years from the time of granting administration on the estate ; and notice of such application must be given to the heirs at law of the decedent, as well as to his personal representatives.
    It seems, that a surrogate has not the power to compel the purchaser of the real estate of the decedent, at a sale made by the executors as administrators under an order of such surrogate, to take the conveyance of the property and to pay to the executors or administrators the purchase money bid upon the sale.
    July 16.
    This was an appeal from a decision of the surrogate of the city and county of New-York. Charles Smyth, of the city of New-York, died intestate in the beginning of the year 1832, leaving a widow and two children, one of which children was an officer in the army stationed at Fort Moultrie in the harbor of Charleston, and the other a resident of New-York. Administration .on his estate was granted to Ann Smyth, his widow, on the 8th of October, 1832. In January, 1834, she presented a petition to the surrogate of New-York, stating, among other things, the granting of administration to her, and that the intestate left no personal estate whatever which she had been able to discover, and that he left none according to her belief; that the debts due by him at the time of his death, as far as she could ascertain the same, amounted to $11,661,38, including two mortgages upon a part of his real estate amounting together to about the sum of $5700; a particular account or statement of which debts, and the persons to whom they were due, was contained in a schedule annexed to her petition. The petition also contained a statement of all the real estate of which the intestate died seized, and conformed in other respects to the requirements of the statute ; and concluded with a prayer that the administratrix might be authorized to mortgage, lease, or sell so much of the decedent’s real estate as should be necessary for the payment of his debts, and that all persons having an interest in the estate might be directed to appear and show cause, See. according to the provisions of the revised statutes on that subject. An order was made- according to the prayer of the petition, requiring all persons interested to show cause on the tenth of March, 1834. On that day creditors appeared and established debts to the satisfaction of the surrogate, to the amount of $2275,29; and he thereupon made an order, bearing date on the last mentioned day, authorizing the administratrix to sell certain portions of the real estate to pay those debts. By the affidavit on file, however, it appeared that the notice to show cause which was published in the state paper, was first published on the thirty-first of January, only thirty-eight days before the time appointed by the surrogate. Under this order, the administratrix advertised and sold real estate to the amount of $10,470, which sales were duly reported to the surrogate on the 20th of September, 1834, and confirmed by him; but before the sales were completed and the deeds given by her to the purchasers the administratrix died. On the 8th of December, 1834, T. A. Emmett, upon the petition of Constantine Smyth, the only surviving heir of Charles Smyth, was duly appointed by the surrogate administrator de bonis non, and was also directed, by an order of that date, to execute conveyances for the lots thus sold, and to make further sales of the real estate of the decedent, for the purpose of satisfying his debts. He thereupon proceeded to give his conveyances accordingly, and brought into the surrogate’s office of the proceeds of those sales to the amount of $6520, but it did not appear what had become of the residue of the purchase money of the sales made by Mrs. Smyth in her life-time. The money brought into the surrogate’s office was only sufficient to pay sixty per cent upon the claims of the creditors that he afterwards permitted to come in and take a share thereof, in addition to the debts which were allowed upon making the order to sell.
    On the 17th of November, 1835, and more than three years after the granting of letters of administration on the estate of Charles Smyth, States Wilkins, as the personal representative of Ann Smyth, the administratrix, presented a petition to the surrogate claiming a debt of $10,000, as due to her estate from the estate of her deceased husband, upon a judgment recovered against him in the name of Thomas Addis Emmett, deceased, as her trustee, in October, 1811; and praying that the administrator de bonis non might be required to mortgage, lease, or sell the real estate of the decedent for the payment of his debts. On presenting that petition, an order was made by the surrogate for Emmett, the administrator de bonis non, to appear and show cause why he should not be required to proceed and sell the real estate of his intestate for the payment of his debts. The administrator appeared by his counsel, and the case was adjourned from time to time, until after the death of Constantine Smyth, the only remaining heir at law, who died on the 28th of December, 1835, without issue and without heirs. The counsel for the administrator afterwards, and without any notice having been published for the heirs of C. Smyth to show cause why the debt should not be allowed, and a further sale of the real estate not embraced in the former orders should not be made, withdrew his opposition to the claim of Wilkins; and, as the counsel for Wilkins supposed, the surrogate allows ed the claim sometime in Jaunary, 1836. But no order was then made and entered in the books of the surrogate upon the application,'and no entry of the allowance of the debt was made. The administrator de bonis non¿ supposing himself authorized, under the order of the 8th of December, 1834, to proceed and sell other lands not specified in the first order of sale, proceeded to advertise and sell the residue of the real estate. And on the 19th of July, 1836, several parcels thereof were sold at public vendue, as and for a good title, and were bid off by the respondents, Seaman Lowerre and Andrew Wright; and one parcel was struck off to the respondent, T. M. Hooker, who was not present at the sale, and without any authority from him to the auctioneers to do so. The sales were afterwards duly reported to the surrogate, and confirmed as the sales made under the orders of the 10th. of March and of the 8th of December, 1834. After the making of these sales in July, 1836, the counsel of the purchasers, Lowerre and Wright, having examined the surrogate’s records and finding, as they supposed, that the proceedings were irregular, so advised their clients, who accordingly declined to complete their purchases. Afterwards, and some time in the month of September, 1836, the counsel who had appeared for the administrator on the application of Wilkins, brought to the surrogate’s office an order of sale to be entered, bearing date on the 5th of January previous, and requested the clerk to enter it. The clerk declined to do so, as he was not aware, as he stated to the counsel, that any such order had been directed by the surrogate, who was not then present. The counsel for the administrator afterwards saw the surrogate, who directed the order to be entered, and told the clerk to enter the $10,000 claim of Wilkins as allowed, as the counsel of the administrator had withdrawn all opposition thereto. The clerk accordingly entered that debt as allowed on the 15th of September, 1836, and entered the order as of the date of the 5th of January previous ; though, as he stated in his affidavit, produced by the respondents in the court below, he did not think or believe that the surrogate saw the date of that order, or knew that it was antedated at the time he directed it to be entered. That order, after reciting the previous orders of the 10th of March and the 8th of December, 1834, and that the sales made under those orders were insufficient to pay the debts, and reciting the subsequent allowance of the $10,000 claim of Wilkins upon the judgment in the supreme court, as a good and valid claim against the estate, but to be postponed to the payment of all other debts, ordered and directed the administrator de bonis non, as well as for the purpose of satisfying the debts first allowed as ‘of the claims and debts subsequently allowed, including that judgment, forthwith to sell the two pieces of land, in the order described, (which were the same lands sold in July, 1836,) and that he should make return of the sales to the surrogate for confirmation before the execution of any conveyances to the purchasers, and pay the proceeds of the sales to the surrogate to be disposed of by him according to law.
    In December, 1838, G. F. Butler, the appellant, to whom Wilkins, the administrator of Mrs. Smyth, had assigned all his interest in the judgment on the 9th of November, 1835, presented a petition to the surrogate, setting forth some of the proceedings which had taken place before the surrogate, and stating, among other things, the report of the sale by the administrator de bonis non, and the order confirming the same, and that such administrator had not proceeded to execute deeds to the purchasers as directed by the order of the 14th of October, 1836, nor paid to the petitioner the amount of the judgment so assigned to him or any part thereof, and praying that such administrator de bonis non might be directed by the order of the surrogate to proceed and tender the conveyances to Lowerre, Wright and Hooker, the purchasers ; and that they might be directed forthwith to complete their several purchases, and pay the consideration money therefor into the office of the surrogate, or that an attachment might he granted against them¡ and that Bleecker & Sons, the auctioneers by whom the premises were sold, might be directed to pay the ten per cent deposited by the purchasers at the time of such sale, or for such other or further order as the nature of the case might require. Upon the presenting of that petition, the surrogate issued a citation to Emmett, the administrator, and to the purchasers and to Bleeker & Sons, the auctioneers:, to show cause before him on the Second of January, 1839, why the prayer of the petition should not be granted. And after hearing the several parties and their affidavits and other proofs, the surrogate came to the conclusion that the proceedings in relation to the sale of the said real estate had not been had pursuant to the directions of the statute on that subject, and were therefore coram non judie'e and void, so that the purchasers would not obtain a good title under any conveyances Which the administrator might execute. And the surrogate being also satisfied that he had no jurisdiction over the purchasers or the auctioneers to make such an order as was asked for by the petitioner against them, he made an order denying the prayer of the petition as to Emmett, the administrator, and dismissed the petition as to the others. From this decision and order of the surrogate, Butler appealed to the chancellor.

      A. L. Jordan, for the appellant.

      L. W. Kip & W. C. Wetmore, for the respondents.
   The Chancellor.

As it was expressly denied by Hooker that he was present at the sale, or ever authorized the auctioneers or any other person to bid upon the property for him or in his name, there is no pretence of claim against him. He was therefore very improperly made a party to this appeal. The order of the surrogate dismissing the petition as to him must be affirmed with costs In this court to be taxed. And he is to be permitted to enrol the decree of affirmance and to take out an execution here to recover those costs.

The case as to the other respondents, and particularly as regards the administrator de bonis non, presents a great variety of questions, some of which I will now proceed to consider. In addition to the objection made by the counsel for the respondents, however, it may be proper to remark that the petitioner does not appear to be entitled to the benefit of the proceedings on the petition of Wilkins to the surrogate, presented on the 17th of November, 1835, and the supposed allowance of the estate of Ann Smyth of $10,000 by the surrogate upon the proceedings founded thereon; for it appears by the petition of the appellant, that he had purchased all of Wilkins’ interest in that judgment on the 9th of November previous. Wilkins, therefore, was not a creditor of the estate of C. Smyth, either in law or in equity on the 17th of November, and had no authority to institute proceedings to compel a sale of the real estate for the benefit of Butler. Even if the judgment for the benefit of Mrs. Smyth had been standing in his name as trustee, I am inclined to think the proceedings could not have been instituted in his name after he had assigned all his interest in the judgment to another. But as the judgment was in the name of T. Addis Emmett, the elder, and Wilkins, as administrator of his mother, was a mere cestui que trust, it is very evident that he had no right to institute such a proceeding in his own name after he had assigned all his beneficial interest in the judgment to Butler.

Again ; the judgment, if valid, was a subsisting lien, as against the heirs at law of the defendant therein, upon all the real estate of which the intestate died seized in the city of New-York, or elsewhere in this state. And I am in dined to think the objection is well taken, that a judgment creditor standing in that situation cannot institute proceedings before the surrogate to compel a sale of the real estate on which his judgment is a lien. The thirty-second section of the title of the revised statutes, under which the proceedings were instituted, (2 R. S. 105,) declares in express terms, that every sale and conveyance made pursuant to the provisions of that title shall he subject to all charges by judgment, mortgage, or otherwise, upon the lands so sold existing at the time of the death of the testator or intestate. And it seems to follow as a necessary consequence that the mortgagee, or judgment creditor is not entitled to any part of the avails of the estate thus sold, to satisfy the incumbrance which still remains upon the land in the hands of the purchaser. Where the whole real estate to which the incumbrance extends is sold, there, perhaps, may be an arrangement made between the personal representative of the decedent and the bidders, at the sale under the surrogate’s order, that the incumbrance shall be paid off out of the amount of the bid ; so as to give the purchaser a clear title. But in that case the amount of the incumbrance to be paid must be ascertained and paid out of the purchase money, by the seller ; and the surplus only should be reported to the surrogate, and paid over to him, as the actual proceeds of the sale to be distributed among the creditors. Such an arrangement being a mere matter of convenience which the lien creditor has no right to insist upon, I do not see how he can, consistently with this section of the statute, either apply to the surrogate to compel a sale, or come in and prove his debt before the surrogate, for the purpose of having it paid out of the proceeds of the real estate on which it is a lien.

It is not necessary for the decision of this case to inquire whether the administratrix was authorized to apply for a sale of the real estate, before she had made and filed an inventory of the personal property,or a statement showing that none existed, duly verified in the form prescribed by the sixteenth section of the article of the revised statutes relative to the duties of executors and administrators in taking and returning inventories, (2 R. S. 85.) In every respect, except as to the form of the inventory and the manner of verification prescribed,sworn statement in the petition on which the first order of sale was founded, that the decedent left no personal estate whatever which she had been able to ascertain or discover, answered all the purposes of an inventory. And if the surrogate had jurisdiction to grant the order, for the persons interested in the estate to show cause why the same should not be sold, the irregularity of making the order to sell before the six weeks notice was duly published in the state paper, was probably cured by the subsequent petition of the only surviving heir at law to appoint an administrator de bonis non to carry the sales which had taken place under that order into effect.

I do not understand, however, the heir as consenting to any subsequent sales, except such as had been authorized by the order of the tenth of March, 1834, and to satisfy debts which had been already ascertained and allowed. And I presume the order of the 8th of December, 1834, did not authorize the sale of any lands not specified in the previous order ; although there is no copy of that order in the surrogate’s return. The surrogate is required, in his order of sale, to specify the land to be sold. (2 R. S. 103, § 20.) And if there were no lands specified in the order of the 8th of December, then it is perfectly clear that the administrator de bonis non was only authorized under that order, to sell the lands specified in the previous order of the 10th of March, if any of them- still remained unsold. The administrator, however, acted upon the supposition that the order of the 8th of December authorized him to sell the lands purchased by Lowerre and others, in July, 1836; as his return to the surrogate shows that he sold them under that and the previous order, and not under the supposed order of the 5th of January, 1836, which was not entered until after that sale.

If the order of the 5th of January, 1836, was actually made at that time by the surrogate, and if he was then authorized to make such an order, he probably had the right afterwards to enter it nunc pro tunc, as of that date, if by any inadvertence it was not entered in the books of his office at the time it was made, I am satisfied, however, that he had not jurisdiction and power to make such an order founded upon the petition of Wilkins. In addition to the objection that a judgment creditor could not apply for a sale of real estate on which his judgment was a lien, and that he had sold and assigned all his interest in the debt as cestui que trust before the presenting of that petition, as an original application by a creditor to compel the administrator to proceed and sell real estate not embraced in the former order of sale, and for the satisfaction of a debt not previously ascertained and allowed by the surrogate in the manner prescribed by the revised statutes, the application to the surrogate should have been made within three years from the time when the original letters of administration were granted to Ann Smyth, on the estate. (2 R. S. 108, § 48.) And it is not sufficient in such case, even when the creditor applies within the time prescribed by law, for him merely to cite the personal representative, to show cause why the application should not be granted. If the petitioner’s claim is founded upon anew debt not before allowed as valid, and if he seeks a sale of other portions of the estate which the executor or administrator has not been already authorized to sell, the surrogate, if no cause to the contrary is shown, must in the first place make an order for the persons interested in the estate to show cause why such sale should not be made, for the purpose of giving the heirs or devisees an opportunity of contesting the alleged indebtedness, or showing that a sale of the real estate is not necessary. And notice of such order must be duly published as upon an original application by the executor or administrator. (2 R. S. 108, § 50.) Here no such previous order or notice was given ; but the order of the 5 th of January is founded solely upon the withdrawal by the counsel of the administrator of his opposition to the claim of the petitioner. If the administrator was the general agent of the heir at law, and was authorized as such to appear and consent to a sale without such previous order or notice, the death of the heir at law, before any such consent was given by the counsel of the administrator, necessarily revoked the agency and power. In this case, however, the administrator clearly never had any such power from the heir at law. At least there was nothing before the surrogate from which any such power could fairly and legally be inferred.

For these reasons I think the surrogate was right in the conclusion at which he arrived, that this sale was unauthorized ; that no conveyances which could be given by the administrator de bonis non, would be sufficient to protect these purchasers in the enjoyment of the premises. The appellant’s remedy, therefore, if this is a valid judgment, is to revive it in the name of the personal representative of the nominal plaintiff, with his assent, and to sell the real estate on execution ; or to come in before the vice chancellor upon the decree of foreclosure, which it appears has been entered there, and establish his claim to the surplus as against the people of the state to whom it is said the property now belongs by escheat. This is sufficient to dispose of the whole case upon this appeal, as the appellant has no claim to relief as against any of those whom he has made parties to these proceedings. It is not necessary, therefore, that I should examine and decide the question whether a surrogate has jurisdiction and power to compel the purchasers under a regular order of sale made by him to take the title and pay the purchase money. I think, however, there can be very little doubt that the decision of the judge a quo was right upon that point also.

The order appealed from must be affirmed, with costs, as to all the respondents who have answered the petition of appeal. And they are at liberty, after the decree of affirmance is enrolled, to take out their executions for costs in this court.


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    Brandreth vs. Lance and others.
    The court of chancery has not jurisdiction to restrain the publication of a libel, by injunction, upon a bill filed by the party whose character or business will be injured by the publication.
    An injunction to restrain a publication can only be granted in cases where the publication'will interfere with the complainant’s right either of literary or other property in the subject matter of the publication.
    Whether the writer of private letters has such a property in them as to authorize the court of chancery to restrain an improper publication of them, by the person to whom they were directed; queers 1

    July 16.
    This case came before the court upon the demurrers of Lance and Hodges, two of the defendants, to the complainant’s bill. 1 The complainant was the proprietor and vender of a nostrum known by the name of “ Brandreth’s Vegetable Universal Pills.” And, as the bill alleged, by advertising this medicine extensively in the public papers in the state of New-York and elsewhere, and thus giving publicity to it and its general efficacy in the cure of diseases, the complainant had derived and was still deriving therefrom a comfortable support for himself and his family. The complainant also alleged that for the purpose of vending his pills he had been in the habit of keeping various offices, and of employing many agents and clerks; that among others he had employed the defendant, Lance, but had been obliged to discharge him for improper conduct; that in consequence of being thus discharged Lance became very much enraged and vowed revenge, and threatened to destroy the complainant; and that he thereupon opened a rival establishment for the purpose of vending medicine or pills in the city of New-York. The complainant further charged in his bill, that a short time previous to the filing thereof he had been spoken to by the defendant Trust, and informed that Lance had applied to him to write the complainant’s life, and that he was inclined to do so, but would relinquish the undertaking for a bonus of $50 ; that the complainant spurned the offer, and bade Trust not to presume to repeat such a proposition, and that shortly thereafter, and previous to the filing of the bill, the complainant received a printed sheet, enclosed to him in a letter, containing the title page and preface and two other pages of a work or pamphlet entitled “ The Life, Exploits, Comical Adventures and Amorous Intrigues of Benjamin Brandling, M. D. V. P. L. Y. S., a distinguished pill vender, written by himself; interspersed with racy descriptions [of scenes of life in London and New-York which work, by the title page, purported to be printed at New-York, by D. M. Hodges, for the proprietors, and to be had of all the booksellers. The residue of this first sheet of the work, which was set out at length in the bill, contained a ludicrous preface in which the complainant was represented as avowing his object in raking up and publishing all the vices and follies of his youth, to be for the double purpose of amusing himself and as a warning to others to avoid them. And the table of contents represented him asi being filius nullius, or rather as beingjilius populi, the child of many fathers, and as having passed through the various and successive grades of sailor, confectioner, painter, brass founder, pedlar, jeweller, bagman to a pill vender, money broker, author, poet, and dramatist; until he had risen to the rank of a wholesale manufacturer of that rare medicine, upon which the smiles of fortune had been so freely bestowed. - The complainant further charged that the before mentioned book, or pamphlet, was then actually printing by the defendant Hodges, for Lance, and under the direction and superintendance of the defendant Trust, who was the author of the work; that the same, so far as ¿appeared by the printed sheet set out in the bill, was a false, malicious, and highly injurious libel, upon the complainant, and was intended to libel him and to bring him into public disgrace and contempt; although in the title page the person whose life it purported to be was called Benjamin Brandling instead of Brandreth, his real name ; and that the defendants were printing the work, and causing it to be printed for the purpose and with the intent of publishing the same and causing it to be widely distributed throughout the country. He therefore prayed for a perpetual injunction restraining the defendants from printing or publishing such book or pamphlet, or the contents thereof, or any part thereof; and that they might be decreed to deliver up the manuscript of the work, and all and every copy thereof, or of any part of the same printed by them, or either of them, to be cancelled and destroyed; and for such further or other relief as he might be entitled to in the premises. To this bill the defendants, Lancé and Hodges, put in separate de - murrers, both as to the discovery and relief sought.

      James Smith, for the complainant.

      T. W. Clerke, for the defendant Hodges.

      S. Sherwood, for the defendant Lance.
   The Chancellor.

It is very evident that this court cannot assume jurisdiction of the case presented by the complainant’s bill, or of any other case of the like nature, without infringing upon the liberty of the press, and attempting to exercise a power of preventive justice which, as the legislature has decided, cannot safely be entrusted to any tribunal consistently with the principles of a free government. (2 R. S. 737, § 1, and Revisers’ note.) This bill presents the simple case of an application to the court of chancery to restrain the publication of a pamphlet which purports to be a literary work, undoubtedly a tale of fiction, on the ground that it is intended as a libel upon the complainant. The court of star chamber in England, once exercised the power of cutting off the ears, branding the foreheads, and slitting the noses of the libellers of important personages. (Hudson’s Star Chamber, 2 Collect. Jurid. 224.) And, as an incident to such a jurisdiction, that court was undoubtedly in the habit of restraining the publication of such libels by injunction. Since that court was abolished, however, I believe there is but one case upon record in which any court, either in this country or in England, has attempted, by an injunction or order of the court, to prohibit or restrain the publication of a libel, as such, in anticipation. In the case to which I allude the notorious Scroggs, chief justice of the court of king’s bench, and his associates, decided that they might be safely entrusted with the power of prohibiting and suppressing such publications as they might deem to be libellous. They accordingly made an order of the court prohibiting any person from printing or publishing a periodical, entitled “ The Weekly Packet of Advice from Rome, or the History of Popery.” The house of commons, however, considered this extraordinary exercise of power on the part of Scroggs as a proper subject of impeachment. (8 Howell’s State Trials, 198.) And I believe no judge or chancellor from that time to the present has attempted to follow that precedent. There is, indeed, in the reported case of Du Bost v. Beresford, (2 Camp. Rep. 511,) which was an action of trespass against the defendant for destroying a libellous picture, a most extraordinary declaration of Lord Ellenborough, that the Lord Chancellor, upon an application to him, would have granted an injunction against the exhibition of the libellous painting. It is said, however, in a note to Horne’s case, in the state trials, that this declaration of Lord Ellenborough, in relation to the power of the Lord Chancellor to restrain the publication of a libel by injunction, excited great astonishment in the minds of all the practitioners in the courts of equity. (20 Howell’s St. Tr. 799.) It must unquestionably be considered as a hasty declaration, made without reflection during the progress of a trial at nisi prius ; and as such it is not entitled to any weight whatever.

The utmost extent to which the court of chancery has ever gone in restraining any publication by injunction, has been upon the principle of protecting the rights of property. Upon this principle alone Lord Eldon placed his decision, in the case of Gee v. Pritchard, (2 Swanst. Rep. 403,) continuing the injunction which restrained the defendant from publishing copies of certain letters written to him by the complainant. But it may, perhaps, be doubted whether his lordship in that case did not, to some extent, endanger the freedom of the press by assuming jurisdiction of the case as a matter of property merely, when in fact the object of the complainant’s bill was not to prevent the publication of her letters on account of any supposed interest she had in them as literary property, but to restrain the publication of a private correspondence, as a matter of feeling only. His decision in that case has, however, as 1 see, received the unqualified approbation of the learned American commentator on equity jurisprudence. (See 2 Story’s Eq. 222, § 948.)

In this case the complainant does not claim the exercise of the extraordinary jurisdiction of this court on the ground of any violation of the rights of literary property, or because a work is improperly attributed to him which will be likely to injure his reputation as an author, or even as a manufacturer of pills. For although his counsel insist that it must necessarily have the effect to injure the sale of his pills, he has not alleged in his bill that he even believes it will have any such effect. And in the absence of such an allegation, I am, as a matter of opinion, inclined to the belief that with that class of persons who would be likely to buy and take his "universal pills,” as a general remedy for any and every disease to which the human body is subject, the supposition that he was the author of the publication in question, and was also the extraordinary personage which this table of the contents of the work indicates, would be very likely to induce them to purchase and use his medicine the more readily.

As the publication of the work, therefore, which is sought to be restrained, cannot be considered as an invasion of the rights either of literary or medical property, although it is unquestionably intended as a gross libel upon the complainant personally, this court has no jurisdiction or authority to interfere for his protection. And if the defendants persist in their intention of giving this libellous production to the public, he must seek his remedy by a civil suit in a court of law ; or by instituting a criminal prosecution, to the end that the libellers, upon conviction, may receive their appropriate punishment, in the penitentiary or otherwise.

The demurrers must be allowed, and the complainant’s bill dismissed, as to these defendants, with costs.

         See 1 Chitty’s General Practice, 697.


text:
    Hegeman vs. Wilson and others.
    An injunction, to restrain the plaintiff in a suit at law from proceeding upon his execution against a third person, who is the defendant in that suit, to sell the property of the complainant in the suit in the court of chancery, is not an injunction to stay the proceedings in a personal action after judgment, within the intent and meaning of the sections of the revised statutes which require a deposit of the amount of the judgment upon the issuing of the injunction, and which authorize the plaintiff in the judgment to take the money out of court upon giving security to refund.
    Where the situation of the property levied upon by execution as the property of the defendant in the execution, is such as to render it proper that a deposit of the amount of the execution should be made, or that security to the plaintiff in the suit at law should be given upon the granting of an injunction to a complainant who is not a party to that suit, the court or the officer who allows the injunction, should either require a deposit of the money, or the giving of a bond with sureties, as a condition precedent to the issuing of the injunction. But the party against whom such injunction has been obtained upon a deposit of the amount of his execution, is not entitled, as a matter of right, to take the money out of court upon giving security to refund the same if the complainant succeeds in his suit.
    July 16.
    This was an appeal from a decision of the vice chancellor of the first circuit. The defendant Van Amringe was the assignee and owner of a judgment recovered in the superior court of the city of New-York, against E. Bloomer, another of the defendants in this suit: upon which judgment he had taken out an execution and caused it to be levied upon certain leasehold premises and a planeing mill and machinery thereon situated, as the property of the defendant Bloomer, but which, as the complainant alleged in his bill, was not the property of Bloomer, but his own. And the bill in this cause was filed, among other things, to restrain the sheriff, and the defendant Van Amringe, from selling this property upon that execution. A preliminary injunction was granted accordingly, upon the complainant bringing into court and depositing with the clerk the sum of |650, to abide the further order of the court. An application was thereupon made to the vice chancellor, by Van Amringe, for leave to take the money out of court, upon giving a bond with sureties to repay the same with interest whenever required to do so by the order of the court. Upon this application several affidavits were read on both sides as to the ownership of the property in question ; and the vice chancellor upon hearing of the parties denied the application, and directed the costs thereof to abide the event of the suit. From this decision Van Amringe appealed to the chancellor.

      W. Silliman, for the appellant,

      A. L. Jordan, for the respondent.
   The Chancellor.

The question as to the ownership of this property cannot be settled upon an application of this kind, upon affidavits, as that would be anticipating the decision of the main question in the cause without giving the parties an opportunity to examine and cross-examine witnesses in the usual way. It is only necessary, therefore, to look into the affidavits for the purpose of seeing whether there is a strong probability that the property in question belongs to the defendant in the execution ; for the purpose of determining whether it is equitable that his judgment creditor, who had levied thereon, should have possession of the fund pending this litigation. Upon the present papers I am inclined to think the defendant Bloomer had no interest in the property which could be sold upon the execution of Van Amringe. Although Wilson swears there was no consideration for the assignment from Bloomer to Moon, that appears to be a fact which it is impossible that he should know, unless he was present at the time of the assignment and heard the parties thereto declare that it was without consideration ; which is wholly improbable. Besides, he is positively contradicted both by Bloomer and Moon. He therefore has sworn positively to a matter of which he was not cognizant, or Bloomer and Moon have been guilty of wilful perjury.

The only question upon this appeal therefore is, whether this is a case coming within the provisions of the revised statutes, requiring the deposit of the amount of the debt and costs, upon granting an injunction to stay proceedings at law in a personal action after judgment; and authorizing the court to pay over the money thus deposited to the credit of the plaintiff in the suit at law, upon his bond, with sureties, to repay the same with interest if so directed by the order of the court. (2 R. S. 189, § 147, 148.) As I have had occasion to observe in another case, the party who has obtained a verdict or judgment at law is, as against the defendant in that suit, prima facie entitled to the money thus recovered. And one object of this statute was to give him the possession of the fund while the equitable right to the same was in further litigation in this court, upon his giving security to restore the amount in case the adverse party finally succeeded in showing that the verdict or judgment was inequitable. But the reasons upon which this statutory provision is founded are not applicable to a case where there is no privity between the complainant, who applies to this court for an injunction, and the defendant in the suit at law; and where the object of the injunction is not to stay the proceedings in the suit at law against the defendant therein, or against his property upon which the judgment or execution is a legal lien. Here, if the allegations in the complainant’s bill are true, the property in controversy never was either legally or equitably affected by the judgment or execution, and there is no privity whatever between him and the defendant in the suit at law, in respect to the judgment or execution. The ground of his application to this court for relief, if the court of chancery has any jurisdiction of the case, is not that the enforcing the collection of judgment against any property of the defendant therein is unjust or inequitable ; but that the appellant, and the sheriff under his direction, are endeavoring to collect an execution against a stranger, by a levy and sale of the complainant’s property, in a manner which will produce irremediable mischief, and for which he has no adequate relief by a suit at law against the sheriff. I think it therefore is not a case in which a deposit of the amount of the judgment, or even the giving of security, was absolute-necessary to entitle the complainant to an an injunction. In other words, this was not an injunction to stay the proceedings in the action at law, within the meaning of the statutory provision before referred to. Van Amringe therefore, as the real plaintiff in that suit, was not entitled as a matter of right to take the money out of court upon giving a bond and personal security. Independent of the statute, the nature of the property levied on was such that it was a proper case for the officer who allowed the injunction to require a deposit of the amount of the • judgment, or the giving of security for the payment thereof, or of the damages the owner of the judgment might sustain if the allegations in the bill were unfounded, as a condition of the granting of the injunction. But in such a case the party against whom the injunction is granted has no claim to the immediate possession of any part of the fund which is brought into court, by the adverse party, as a mere security for the damage which may be sustained by the issuing of the injunction.

The decision of the vice chancellor was therefore not erroneous, and must be affirmed with costs ; and without prejudice to the right of either party to apply to the vice chancellor to have the fund in court invested, either upon bond and mortgage, or in the Trust Company, upon interest, to abide the further order of the court in this cause.


text:
    Van Hook vs. Throckmorton and others. Wright vs. Tremells.
    A purchaser under a decree of foreclosure is not entitled to a writ of assistance to turn a person out of possession of the mortgaged premises, although such person went into possession pendente lite, unless he went into possession under, or by the permission of, some one of the parties to the suit.
    Where the complainant in a foreclosure suit assigns all his interest in the mortgage pendente lite, and the defendant also sells his interest in the equity of redemption ; it is irregular to proceed in the name of the original complainant to foreclose the equity of redemption as against such assignee ■of the mortgagor. But the suit should be continued against him by a bill in the nature of a bill of revivor and supplement, filed by the assignee of the complainant,
    A purchaser at a master’s sale is entitled to a writ of assistance to put him in possession of the mortgaged premises as against the defendants in the suit, or those who have gone into possession under them pendente lite. But the court is not bound to grant a writ of assistance to a subsequent purchaser from the purchaser at the master’s sale ; and it will not there, fore grant such writ, if injustice will be done thereby.
    July 16.
    These cases came before the chancellor upon an appeal from a decision of the vice chancellor of the first circuit, refusing a writ of assistance to put the respondent Thomas Hegeman out of possession of certain leasehold premises in the city of New-York, and of a planeing mill and other machinery thereon. The appellant was a purchaser under a mortgage foreclosure, of an undivided portion of the premises, in the last of the above causes, and the assignee of Van Hook was the purchaser of another undivided portion of the premises, under a foreclosure in the first entitled cause.

      W. Silliman, for the appellant.

      A. L. Jordan, for the respondent.
   The Chancellor.

There are two objections to the appellant’s application to turn the respondent out of possession of the share of the premises embraced in the mortgage of Tremells. Although the respondent Hegeman went into possession of the premises subsequent to the commencement of the suit, he did not enter under any person who was a party to that suit, or under any one who had derived title to or gone into the possession of the premises under a party, subsequent to the commencement of that suit. He purchased from Wilson who was in possession and claimed to be the absolute owner of the premises ; and who conveyed the same to him with warranty. As Wilson was in the actual and undisturbed possession of the premises at the time of the commencement of the foreclosure suit against Tremells, if the complainant wished to obtain possession against him, on the ground that he had entered under the mortgagor subsequent to the mortgage, he should have made Wilson a party to the suit; and then Hegeman, who purchased from him pendente lite, might have been turned out of possession under the decree. But as Wilson was in possession at the commencement of the foreclosure suit, claiming a right to the property, and could not therefore be turned out of possession under the decree in a suit to which he had not been made a party, his subseqent grantee cannot be in a worse situation in that respect.

But even if Wilson had been made a party, this decree-of foreclosure would have been irregular as against Hegeman his grantee. The complainant having assigned all his interest in the suit to another person pendente lite, and the respondent Hegeman having in the meantime become the purchaser of Wilson’s interest, it would have been wholly irregular as to him to continue the suit in the name of the original complainant, instead of filing a bill in the nature of a bill of revivor and supplement, in the name of the complaimant’s assignee, and making Wilson’s assignee a party to the same. The decision of the vice chancellor as to that part of the premises embraced in the mortgage of Tremells was therefore unquestionably right.

The decision as to the part embraced in Van Hook’s mortgage depends upon different principles. In that case, Wilson, under whom the respondent Hegeman subsequently derived his title, was a party to the suit; and Hegeman sits in the seat of his grantor. And if Van Hook had applied for the possession, for his own benefit, immediately after his purchase under his decree of foreclosure, I do not know but that it would have been the duty of this court to have interfered, and to have put him in possession by a writ of assistance against Hegeman the purchaser pendente lite. Even in that case, however, as Van Hook had then another security for the payment of his debt, from Wilson who had conveyed these premises to Hegeman with warranty, this court might have required, as a condition of its interference in this summary way, that Van Hook should give to Hegeman the benefit of such other security, for his indemnity for the loss of these premises. There is no settled practice of this court, entitling a subsequent purchaser from the purchaser at a master’s sale, as a matter of right, to the assistance of the court to obtain the possession of premises which his grantor had purchased under the decree. And such assistance should not be given to him when there is, as in this case, a very strong probability that injustice would be done to the person in possession by such a proceeding. Although Van Hook had actually obtained the legal title to the mortgaged premises, by the purchase under his decree, it is evident that at the time of the sale to the appellant Halsey, he did not intend to insist upon his legal rights as against Wilson ; except so far as was necessary to secure the payment of his debt and costs. And that if he had known at that time that Wilson had conveyed the premises to Hegeman, with warranty, he would not have been a party to the attempt on the part of Wilson to defraud his grantee by obtaining the transfer of the title of Van Hook to Halsey. As the appellant, therefore, who could not have been ignorant of the sale to Hegeman, and of his agreement to have the payment of this mortgage suspended for two years, had chosen to buy a lawsuit, for the purpose of assisting Wilson in this unjustifiable attempt to destroy the title of Hegeman his grantee, I think the vice chancellor was right in refusing him a writ of assistance ; and leaving him to his remedy, if he has any, by a suit at law to obtain possession of the property.

For these reasons, the decision and order appealed from must be affirmed with costs.


author: The Chancellor

text:
    Whitney vs. Post and others.
    Where a. cause pending before a vice chancellor is in readiness for hearings but cannot be heard, because such vice chancellor before his appointment-had been counsel in the cause, the chancellor upon application to him may direct the cause to be heard before any other vice chancellor, at a stated* term of his court. And in such case, the decree must be entered with the clerk of the circuit where the suit was pending; the name of the vice-chancellor before whom the cause was heard being inserted in the caption of the decree, instead of the name of the vice chancellor of that circuit.
    July 31.
    This cause was in readiness for hearing before the vice chancellor of the eighth" circuit, who was legally incompetent to hear and decide it, because he had been counsel for one of the parties. An application was therefore made to the chancellor, either to hear the cause himself, or to refer it to some other vice chancellor to hear and decide the same.
   The Chancellor

directed the cause to be heard before the vice chancellor of the fifth circuit, at any of his regular terms ; and that the decree which might be made therein be entered by the clerk of the eighth circuit, inserting the name of the vice chancellor before whom the cause was . heard in the caption of such decree, instead of the name of the vice chancellor of the eighth circuit.


text:
    Bunce and wife vs. Vander Grift and others.
    Where a feme sole takes out letters testamentary as an executrix, and after-wards marries, it is not necessary for her husband to file a written consent with the surrogate, to render him liable for her acts as such executrix. The provision of the revised statutes which requires the written consent of the husband, to render him jointly liable with his wife for her acts as executrix, only applies to cases where she is a feme covert when she applies for letters testamentary.
    The husband who marries an executrix after she has taken out letters testamentary, is jointly liable with her for her acts, done as executrix, after as well as before the marriage. And he may be sued with her during their joint lives; and if he dies first, his assets will continue chargeable in equity, and she will also be liable after the death of her husband for moneys which came to the hands of either, during her coverture, by virtue of the trust.
    A feme covert executrix or trustee may convey the trust property, under a power given to her for that purpose, without the consent of her husband, and may apply the proceeds of the sale to the purposes directed by the trust. And the husband cannot compel her to sell and conveyithe property contrary to her own will or judgment, as she must acknowledge the conveyance to have been executed voluntarily, and without fear or compulsion, as in other cases.
    Where real estate is directed to be sold under a power, and to bo distributed as personalty, if the person entitled to the proceeds dies before the execution of the power, such proceeds are to be distributed as the personal estate of the decedent, in the same manner as if the property had been sold before his death.
    August 6.
    This was an appeal from the decision of a vice chancellor denying an application for the dissolution of an injunction. The hill was filed by Bunce and wife, she being one of the children of J. F. Mason, deceased, for the partition of a lot in the city of New-York, and to restrain the defendants Gundrey and his wife, or either of them, from proceeding to sell the premises by virtue of a power of sale contained in the will of J. F. Mason. The testator died in August, 1832, seized in fee of the premises, leaving Mrs. Bunce and five other children his only heirs at law; one of whom died previous to the commencement of this suit without issue. The testator, by his will, gave to his wife the use and income of all his property, so long as she remained his widow, for the support of herself and her children. After her death, or re-marriage, he ordered the property to be sold by his executors, either at public auction or otherwise, giving them full power and authority jointly or severally to sell and convey the same. The money arising from the sale he gave to his six children in equal shares, to be paid to them respectively as they arrived at full age; and if any of them died under age without issue, his or her share was given over to the survivors. His wife was appointed executrix and C. Millar and J. Bloodgood executors of the will; but by a subsequent codicil, the appointment of Bloodgood was revoked, and the testator thereby appointed his wife and Millar to execute the will, and conferred upon them all the powers which by the original will were given to the executors. Millar did not assume the trust, and letters testamentary were granted to the executrix only. About a year and a half after the death of the testator, she intermarried with the defendant Gundrey, who, as the bill alleged, had from the time of such marriage assumed the entire control of the premises without any interference on her part, and had leased the same and received the rents and profits thereof without consulting Bunce and wife. The complainants also alleged in the bill, that Gundrey and wife claimed the right to sell the premises under the power contained in the will, and that the premises had been advertised for sale without consulting the complainants ; and that Gundrey was improvident in his affairs and loose and intemperate in his habits, and that he and his wife were in such precarious circumstances as not to afford adequate security for the due and perfect administration of the estate of the decedent. The answer of Gundrey and wife denied the allegation in the bill, that he was loose and intemperate in his habits, or that he and his wife were in such precarious circumstances as to render it unsafe for her to execute the trust. They also denied that they advertised the premises for sale without consulting with Bunce; but on the contrary, they alleged that the time of sale was fixed upon according to his own recommendation.

      T. S. Brady, for the appellants,

      E. A. Willet, for the respondents.
   The Chancellor.

The only allegations in the complainants’ bill which could have justified the issuing of an injunction in this cause are fully denied, not only by the answer of the appellants, but also by the answers of the other defendants; who have a common interest with the complainants in the proceeds of the real estate of which the testator died seized. For the purpose of disposing of the question arising on this appeal, therefore, I must consider it as true that the executrix and her husband were proceeding in perfect good faith to sell the real estate, for the purpose of dividing the proceeds thereof among the several persons entitled thereto, as directed by the testator in his will.

The objection that Gundrey has not filed a consent in writing with the surrogate to be jointly liable with his wife for her acts as executrix, is not well taken. The fourth section of the article of the revised statutes relative to the granting of letters testamentary, (2 R. S. 69,) is only applicable to the case of an executrix who is a feme covert at the time she applies for such letters. Where she is a feme sole at the time, she assumes the trust and takes out letters testamentary, the husband who marries her after-wards is liable for her acts, both before and after the marriage. So long as they both live, he may be sued jointly with her for a devastavit committed by either; and even if he dies before her, his assets are chargeable in equity. She also is liable after the termination of the coverture for moneys which came either to her hands or the hands of the husband, in virtue of the trust. (Adair v. Shaw, 1 Sch. & Lef. Rep. 243. Bellew v. Scott, 1 Strange’s Rep. 440.) Upon a sale of real estate by a feme covert under a power, either as executrix or otherwise, she may convey without the consent of her husband and apply the moneys as directed by the power. But she cannot be coerced by him to execute the deed, as she is required to acknowledge it as her voluntary act, upon a private examination, as in other cases. (1 R. S. 735, § 110, 117.) There is no valid reason, therefore, for depriving the other defendants of the benéfit of the power granted" to the executrix by the will, and subjecting this real estate to the extra expense of a sale under a decree in partition;

The legal title, it is true, is vested in the complainants and defendants jointly, but not in the precise proportions stated in the bill. Upon the death of the testator, the remainder in fee, after the re-marriage of the widow, descended upon the six children ; subject to her right of dower therein, and also subject to the execution of the power of sale as directed by the testator. But the legal title in the share of the one that died did not' immediately descend and vest in the remaining five so as to give each one undivided fifth of the premises, as stated in the bill. On the contrary, the mother took a life estate in that one sixth of the premises under the sixth section of the chapter of the revised statutes relative to the title to real property by descent, as amended by the act.of 1830. (1 R. S. 752, § 6, of 2d ed.) In equity, however, this real estate must be considered as converted into personalty for the purposes of the will from the time of the re-marriage of the widow. The beneficial interests of the several parties in the premises, are for this reason the same as if the land had in fact been converted into personal property at that time. The rights to the beneficial interest in the share of the deceased child, therefore, depend upon the question whether he died before or after he arrived at the age of twenty-one. If he died under age, then his share is to be equally divivided between the five surviving brothers and sisters, under the limitation in the will. But if he was of full age at the time of the happening of that event, then the beneficial interest in the one sixth of the proceeds of the sale which was to be made under the power, belonged to him absolutely ; and must be distributed as personal estate, between his mother and his five surviving brothers and sisters equally. (2 R. S. 96, § 75, sub. 6. Leigh § Dalz. Eq. Corv. 6, 91.)

If the answers of the defendants in this case responsive to the complainants’ bill are true, there was no foundation for an application to this court either for an injunction, or for a partition of this estate which the executrix was proceeding in good faith to sell and distribute, in the manner in which the testator had himself directed it to be done ; and the bill, so far as it seeks either an injunction or partition, will he dismissed at the hearing, unless an entirely different case should he made out by the proofs in the cause. For this reason, I think the decision of the vice chancellor in refusing to dissolve the injunction was erroneous. It must therefore he reversed, with the costs upon this appeal ; and the injunction must be dissolved. The costs of the application to the vice chancellor must take the usual course and abide the event; as it is barely possible that the proofs to be taken in the cause may so far contradict the answers as to show that it was a proper case for equitable interference.


text:
    Jermain vs. Langdon and others.
    It is irregular for a complainant to proceed against a defendant, as an absen- • tee, who is not in fact absent from or concealed within the state; but who has, on the contrary, a fixed and notorious domicil in the state. And in such cases if the defendant applies the first opportunity after he has notice of the proceedings against him, and before a sale under the decree, he will be let ,in to defend of course, and without costs.
    Where a defendant is proceeded against as an absentee he is entitled, of course, at any time before a sale under the decree, to come in and make his defence, if he has any, upon payment of such costs as the court may deem reasonable. In such cases, however, it is not necessary to vacate the decree in the first instance ; but the court may permit the decree to stand until it is ascertained that the defence set up by the defendant is valid, and may allow him to proceed in the mean time with his defence as if the decree had been opened or vacated.
    This was an application on the part of Langdon and wife, two of the defendants, to set aside the order taking the bill as confessed in this cause against the defendant, J. Langdon, with costs. The bill was filed to foreclose a mortgage given by J. Langdon to W. Hunt; which mortgage was afterwards duly assigned to the complainant. At the time of the giving of the mortgage Langdon and his wife resided in the state of New-Hampshire. They were therefore proceeded against as absentees. And an order for publication was obtained, upon an affidavit of the complainant’s solicitor that he had "taken out a subpcena against them but could not, after diligent search and inquiry, find them to serve the same ; but that he was informed by the mortgagee and by the clerk of the county in which the mortgaged premises were "situated that they lived at Portsmouth in New-Hampshire. The bill was afterwards taken as confessed for want of appearance pursuant to such order; and the usual decree for a sale of the mortgaged premises was entered, upon an affidavit that all the proceedings to take the bill as confessed had been regular. By the affidavit on the part of Langdon and wife, however, it appeared that about one year previous to the filing of the bill he removed with his family to this state, where he was residing at the time of the commencement of this suit and when the order for publication was obtained. It appeared from the correspondence between Lang-don and the complainant that the former knew the fact that proceedings had been instituted to foreclose the mortgage, several months before the bill was taken as confessed ; and that he had promised to pay up the interest in arrear and the costs, upon the doing of which the complainant had offered to stay the proceedings in the suit.

      J. Rhoades, for the complainant.

      M. T. Reynolds, for the defendants.
   The Chancellor.

It is not necessary to consider the question at this time, which was raised on the argument, whether a proceeding against a party as a non-resident, who has a fixed and notorious domicil in this state at the time, is absolutely void as against him, for want of jurisdiction ; where the order for publication has been obtained upon a proper affidavit showing that the defendant was a non-resident at that time. For if this proceeding as to Langdon is void for want of jurisdiction, he cannot be injured by a sale under this decree; as his rights in that case will be the same as if no such decree had been made. My present impression, however, is that the proceedings and decree would not be void for want of jurisdiction, but would be merely voidable for the irregularity. There can be no doubt, however, that it is clearly irregular to proceed against a party, as an absentee, who has a fixed and notorious residence in the state; and who is neither absent therefrom nor concealed so that process cannot be served on him. In such a case, therefore, if the defendant applies for leave to come in and defend the suit, the first opportunity he has after he is informed of the proceeding against him and before an actual sale to a bona fide purchaser under the decree, it will be a matter of course to permit him to come in and defend, without charging him with any costs. But in a case of mere unintentional irregularity, the party who wishes to take advantage of it must apply the first opportunity ; unless he can satisfy the court that he has been deprived of some substantial right, either legal or equitable, in consequence of such irregularity. Here it is not alleged, in the papers upon which this application is founded, that the defendants have any defence whatever to the suit. And from the letters which are before me I presume the object of the defendants is mere delay. The motion to set aside the order to take the bill as confessed must therefore be denied with costs.

The defendants, however, if they have any defence in fact, are, by the statute, permitted to make it at any time before the premises are actually sold under the decree ; in every case in which they are proceeded against as absentees. (2 R. S. 188, § 137.) The only restriction upon the right is the payment of such costs as may by the court be deemed reasonable. And as the complainant proceeded against these parties as absentees, it does not lie with him to object that they were not so in point of fact. Where an absentee, however, comes in to stay the sale, under this provision of the revised statutes, it is not absolutely necessary that the decree should be opened, or vacated, before it is ascertained that the defendant has a valid defence. The court therefore may permit the defendant to put in an answer, where he applies after a decree has been entered, and may at the same time allow the decree to stand until the hearing and determination of the question as to the validity of the defence set up in the answer. Where the defendant is thus permitted to appear and put in his answer, after decree, the court upon the final hearing may either vacate the decree entirely, or may affirm or modify it as may be just and proper ; and the sale in the meantime will be stayed.

The defendant Langdon, therefore, upon entering an appearance for himself and wife and filing a bond with the register, within twenty days, with two sufficient sureties in the penalty of $250, to be approved of by a master in the usual form, conditioned to pay to the complainant such costs as may eventually be awarded to him in this suit against these defendants, is to be at liberty, at any time within forty days after service of a copy of the bill, to put in an answer to the same for himself and wife, in the usual, form. And upon entering such appearance and filing such bond the sale of the premises under the decree is to be stayed until the further order of this court. But if they neglect to give such bond, or to put in their answer, within the time prescribed for that purpose the complainant may proceed under his decree.


text:
    Waffle vs. Vanderheyden & Hatch.
    Where upon the examination of the agency book at the place at which the ser, vice'of a paper was to be made, it appeared that the solicitor of the adverse party had no agent at that place; Held, that a service by mail was regular, although it afterwards appeared that such solicitor had filed an appointment of an agent previous to such service, but the clerk had neglected to enter it in the list of agents kept in his office.
    Where the complainant neglects to serve a subpoena upon a defendant in the bill, against whom an injunction has been granted affecting his rights, such defendant may appear voluntarily and apply to dissolve the injunction, without waiting for the service of the subpoena.
    August 6.
    This was an appeal from an order of the vice chancellor of the seventh circuit, dissolving an injunction, on the ground that the bill had not been served as required by the 35th rule of the court of chancery. The solicitors of the respective parties resided in different counties, but within twenty miles of each other. The complainant’s solicitor had filed an appointment of agent; but, by mistake, his name had not been entered in the book of agents kept by the clerk. The defendants’ appearances having been duly entered, and their solicitors finding, by an examination of the agency book, that the complainant’s solicitor had not, as he supposed, any agent residing at the place where the clerk’s office was kept, sent a notice of the appearance to him by mail, directed to his place of residence. And having waited eighteen days, and receiving no copy of the complainant’s bill, he made an affidavit of the facts, and gave notice of a motion to dissolve the injunction. On the part of the complainant, the affidavit of his solicitor was read in opposition to the motion, showing that he had filed an appointment of an agent, and also that he had served the injunction and subpoena upon but one of the defendants ; but he did not deny the receipt of the notice of retainer by due course of mail, and more than twelve days before the receipt of the notice of the application to dissolve the injunction.

      W. Porter, jun. for the appellant,.

      H. Myers, for the respondents.'
   The Chancellor.

As the neglect to have the name of the agent entered in the agency book was the fault of the clerk, and not of the complainant’s solicitor, it would have been a matter of course to have retained the injunction,, if the solicitor had shown that the notice of retainer did not come to hand- in season to enable him to serve a copy of the bill within the time required by the rule. There is no pretence of that kind, however, and there probably could not have been in this case. The appellant,, therefore, relied upon mere technical grounds as to the regularity of the proceedings of the defendants’ solicitor ; and if he was wrong as to those grounds, the order of the vice chancellor dissolving the injunction with costs was properly granted.

It is alleged in the affidavit of the complainant’s solicitor that he has never served either the injunction or a subpoena on the defendant Hatch. That, however, was not necessary to enable Hatch to enter his appearance, and to join with the other defendant in an application to dissolve the injunction, which was equally binding upon both, if they actually knew the fact that such an injunction had been granted. And the neglect to serve the subpoena upon one of the defendants' after obtaining an injunction staying the proceedings in a suit commenced by both, might of itself have been a good ground for dissolving the injunction, if unexplained.

I think the defendants’ proceedings were also regular in-sending the notice of retainer by mail. Such a service is expressly authorized by the 14th rule, where the solicitor has no agent residing at the place of service. And the party making the service is not bound to look beyond the agency book for the purpose of ascertaining whether there is an agent at that place. The agent himself should not only file his appointment, but should also see that his name is properly entered on the list of agents ; as that is the only record of the appointment to which other solicitors have access.

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