text:
    Crosby, adm'r, vs. Berger and others, ex'rs.
    The privilege of an attorney, or counsellor, extends to information derived from his client as such; either by oral communications, or from books or papers shown to him by his client, or placed in his hands in his character of attorney or counsel, by such client.
    But the privilege does not extend to information derived from other persons, or other sources, although the information is derived or obtained while acting as such attorney or counsel.
    Whether the privilege of an attorney or counsellor is not at an end when he becomes an executor and legatee of his client, by the appointment of the latter. Qumre ?
    • This was an appeal by R. Lockwood, one of the defendants in this cause, from a decretal order of the vice chancellor of the first circuit, disallowing exceptions to a report, which report allowed the fourth and fifth exceptions to Lockwood’s answer, for insufficiency. The bill was filed against Lockwood, as one of the executors and the principal legatee of Devine Duvet, to reach the property, in the hands of himself and his co-executors, which was allgdged to have come to the hands of the testatrix as executrix of l Balbi. The bill called for an account of the property which thus came to. her hands. To this part of the bill the defendant Lockwood declined answering; and as an excuse for so doing, he stated, iq his answer, that Duvet never filed any inventory, and that he acted as her attorney, solicitor aqd counsel 5 and as . such he derived all his knowledge and information of the amount and value and species of property left to her by Balbi. And as such confidential attorney, solicitor and counsel, he submitted to the court that he could not, without a violation of such professional confidence, discover the same, or make answer to that part of the discovery prayed for by the complainant. The neglect to answer this part of the bill formed the subject of the fourth exception to the answer. The fifth exception was for not answering as to the estate of Duvet which came to the hands of the defendants as her executors.

      R. Lockwood, appellant, in person.

      B. F. Butler, for the respondent.
   The Chancellor.

It is not necessary to examine the question as to the fifth exception, as that question was decided adversely to the appellant, in the case of The Bank of Utica v. Messereau, (7 Paige's Rep. 517.)

The appellant is undér a mistake in supposing that an attorney or counsellor is privileged from answering as to every thing which comes to his knowledge while he is acting as attorney or counsel. The privilege only extends to information derived from his client, as such; either by oral communications, or from books or papers shown to him by his client, or placed in his hands in his character of attorney or counsel. Information derived from other persons, or other sources, although such information is derived or obtained while acting as attorney or counsel, is not privileged. (Spenceley v. Schulenburgh, 7 East's Rep. 357.) The object of the rale, protecting privileged communications from being disclosed by the attorney or counsel, is to secure to parties who have cqnfided the facts of their cases to their professional advisers, as such, the benefit of secrecy in relation to such communications j so that the client may disclose the whole of his case to his professional adviser, without any danger that the facts thus communicated to his attorney or counsel will be used in evidence against him, without his own consent. But the principle of the rule does not apply to the discovery of facts within the knowledge of the attorney or counsel, which were not communicated or confided to him by his client; although he became acquainted with such facts while engaged in his professional duty as the attorney or counsel of his client. (See Coveney v. Tannahill, 1 Hill's Rep. 33, and cases there cited.) Thus in the case of Sawyer v. Burchmore, (3 Myl. & Keene, 572,) Lord Cottenham, while master of the rolls, decided that an attorney was bound to produce letters communicated to him from collateral qüarters, and to answer as to matters of fact, as distinguished from matters communicated to him by his client in professional confidence. And the same principle was afterwards confirmed by him, as lord chancellor, in the more recent case of Desborough v. Rawlins, (3 Myl. & Craig, 515.) The decision of Lord Brougham, in the case of Greenough v. Gaskell, (1 Myl. & Keene, 98,) does indeed appear to extend the privilege further than the previous cases would warrant; and beyond the principle upon which the privilege is foimded. But I think the true rule on the subject is to be found in the decisions of Lord Cottenham before referred to, in the able opinion of Mr. Justice Bronson, in the case of Coveney v. Tannahill, in our own supreme court, and in the recent opinion of Lord Langdale in Robinson v. Flight, in July last. (8 Lond. Jurist Rep. 888.)

In the present case, it may be true, as stated in the answer of Lockwood, that he derived all his knowledge and information as to the amount and value and species of property left to Duvet, by the will of Balbi, as her confidential attorney, solicitor and counsel; and yet he may not have obtained any part of that knowledge or information from her, either directly or indirectly. In the course of his professional duty he may have examined the public records and found deeds there, conveying real estate to Balbi; and hé may have examined and ascertained, either by his own view or from the information of others, the situation and value of such reál property: In the same way he may have ascertained that large amounts of stock were standing in the name of Balbij upon the books of various corporations, at the time of his death) and the value of such stocks. And it is wholly improbable that the defendant, who admits he was the general attorney and solicitor of Duvet, has no knowledge or information as to the property of Balbi, except such as he has obtained from Duvet herself, in his character of attorney and counsel. The fourth exception to the answer was therefore well taken : and it is not necessary to inquire whether Duvet’s privilege was not at an end when Lockwood became her executor and legatee, by' her own appointment.

The order appealed from must be affirmed with costs.


source: Caselaw Access Project

author: The Chancellor.

license: Public Domain

text:
    Emmons vs. Cairnes, &c.
    Where the defendant took eight exceptions to the complainant’s bill, for impertinence, seVen of which were allowed by the master, and the complainant excepted to the report, and th'e vice chancellor disallowed all the exceptions allowed by the master; and, upon appeal to the chancellor, the decision of the vice chancellor was reversed as to one exception only ; and the order upon the appeal directed that neither party should recover costs against the other, upon the exceptions to the bill, or on the reference thereof, or upon the appeal; but that the defendant should pay to the complainant six-eighths of the costs upon thd exceptions to the master’s report, to be taxed ; Held, that the 62d rule did not apply, artd that the complainant was eiltitled to six-eighths of the taxable costs upon the exceptions to the master’s report, and was not limited to ‡ 10.
    Wfaere a bill'of costs which is verified by affidavit is taxed, and the safare is afterwards re-taxed by the consent of the parties, and the necessity of verifying the bill upon the re-taxation is waived by the defendant; the general affidavit attached to the first bill is sufficient evidence, prima facie, that the services charged in the bill have been performed. And the verification of the last bill by affidavit being waived by the defendant, he cannot object that the services charged in such bill have not been performed; without producing some evidence before the taxing officer tending to establish that fact.
    It is not sufficient to produce evidence of the incorrectness of the bill, u[5on the hearing of an appeal from the decision of the taxing officer. Such evidence must be produced before Such officer. And the appeal from bis taxation must be decided on the same state of facts that was presented to him upon the taxation of the costs.
    This was an application, by the defendant W. Skidmore, for the . re-taxation of the complainant’s costs, upon exceptions to a master’s report, on exceptions to a bill for impertinence. Eight exceptions were taken to the bill, and the master allowed them all except one. The complainant excepted to the report, and the vice chancellor disallowed the exceptions which were allowed by the master. Upon appeal to the chancellor, the decision of the vice chancellor was reversed, as to one exception only. And the order, upon the appeal, directed that neither party should recover costs against the other upon the exceptions to the bill, or on the reference thereof, or on the appeal; but that the defendant Skidmore should pay to the complainant six-eighths of the costs upon the exceptions to the master’s report, to be taxed. A bill of costs was made out, and verified in the usual form, and was taxed. The complainant consented to a re-taxation, upon condition that he should be permitted to make out a new bill, containing additional charges; and Upon this bill the defendant waived the necessity of an affidavit verifying the' charges before the taxing officer. The defendant objected to two items, which were contained in the original bill, as well as in the new bill. But he produced no affidavit, or other evidence, before the taxing officer, to show that the services had not been performed as charged. On the application for re-taxation, however, he produced an affidavit questioning the performance of the services. He also insisted that, under the provisions of the 62d rule, the complainant was "only entitled to have his costs taxed at six-eighths of ten dollars.

      N. Dane Ellingwood, for the complainant.

      W. Skidmore, defendant in person.
   The Chancellor.

The objection to the items of costs was not well taken. The general affidavit to the first bill, which included these items, was sufficient evidence, prima facie, that the services had been performed. And the defendant having waived an affidavit' of verification to the last bill, could not object that the services had not been performed; without producing some evidence, to the taxing officer, tending to show that fact. It is not sufficient tó produce evidence here, for the first time, showing that the services charged in the bill, and verified in the usual way, were not in fact performed. But such evidence should be produced before the taxing officer. And if he decides wrong, upon the evidence before him, the court will correct such decision upon the same state of facts which were presented to him. The charge for the affidavit verifying the bill of costs was properly allowed, although no such affidavit was annexed to the last bill. Such an affidavit having been made and annexed to the first bill, the complainant was entitled, to charge for it,, although the defendant waived a verification of the new bill; as only one charge for the service was made.

Upon examining the terms of the order under which these costs was allowed*, I think the taxing officer was right in supposing that the sixty-second rule did not apply. The object in limiting the amdunt of costs, where a party does not succeed as to the whole of his exceptions to the master’s report, was to relieve the court from the necessity df apportioning the costs in, reference to the exceptions Allowed. But in this case, as it appears, the court thought proper to apportion the costs in reference to the number of exceptions finally allowed, so far as related to the costs of the hearing, before the vice chancellor; and to allow the complainant no costs on the appeal, although he had succeeded as to six-sevenths df the exceptions which were in controversy upon such appeal; It must, therefore, have been the intention of the court, by this order, to give to the complainant six-eighths of the taxable costs,, upon the exceptions to the master’s report, to which he would have been entitled if all of such exceptions had beén finally allowed, by the vice chancellor, and there had been no appeal. The construction would .have been otherwise if the order had simply allowed costs upon the exceptions, to be taxed. For, in that caáe, the taxing officer would merely strike out of the bill the charge for drawing and copies of the single exception, to the master’s report, which was finally disallowed ; and would allow the other charges in full, but limiting the whole amount of costs to be paid by the defendant to ten dollars.

The application for re-taxation must be denied, with ten dollars costs.


author: The Chancellor

text:
    M. Mount, by her next friend, vs. Mount.
    Where a bond for costs, in the penalty of $250, with sureties, is required to be given in a suit, the sureties respectively must justify in double the amount of the penalty of such bond.
    This was an appeal, from the decision of a vice chancellor, in relation to the amount in which the sureties of the next friend should justify, upon an order requiring him to give security for costs.

      T. S. Brady, for the appellant.
    P. Dow, for the respondent.
   The Chancellor

decided that, under the existing laws' relative to the exemption of property from execution, a person who was not worth more than $250 was not good security for costs. He said that where a bond for costs in the penalty of $250 was required, the sureties, respectively, should be required to justify in double- that amount-; to render it probable- that the amount of the penalty of the bond could be collected of either or both of the sureties upon execution.

Order accordingly.


text:
    New-York Dry Dock Company vs. The American Life Insurance and Trust Company, &c.
    Where a complainant has a perfect defence at law, to a suit commenced against him there, he is not entitled to the special interference of the court of chancery, by injunction, to restrain the proceedings at law previous to a decree in the suit instituted in chancery.
    The mere neglect of the defendant, in the suit in chancery, to object to the jurisdiction of the court, will not entitle the complainant to a preliminary injunction to restrain the proceeedings at law; and thus make it the duty of the court of chancery to assume the exclusive jurisdiction of the subject matter of the suit.
    But when a final decree is made in the suit in chancery, the court, by injunction, may restrain any proceedings at law which are inconsistent with the rights of the parties as established by such decree; and may insert a clause in the decree to that effect.
    The bill, in this case, was filed to set aside pertain securities, which were illegal and void at law, as well as in equity, if the allegations in the complainant’s bill were correct. After the filing of the bill here, the defendant instituted a suit at law upon the. securities. And the complainant now applied for an injunction; to restrain the proceedings in that suit; the defendants having answered the bill without insisting, as an objection to the juris- ' diction of this court, that the complainant’s remedy was perfect at law.

      G. Wood & S. Sherwood, for the complainant.
    S. Stevens & J. Rhoades, for the defendants.
   The Chancellor

decided, that where the complainant had a perfect defence at law, to a suit instituted against him there, he was not entitled to the special interference of this court, by injunction, to restrain the proceeding there, previous to a decree in the suit instituted in this court. He said the mere neglect of the defendants here to object to the jurisdiction of the court, did not entitle the complainant fo a preliminary injunction to .restrain the proceeding at law; and thus to make it the duty of this court to assume the exclusive jurisdiction of the subject matter of the suit; but that when a final decree should have been made here, the court, by injunction, might restrain any proceedings at law which were inconsistent with the rights of the parties as established by such decree, and that a clause to that effect might be inserted in the final decree.

Motion for injunction denied.


text:
    Johnson and wife vs. Swart.
    A master’s report will not be set aside upon the ground that the master was prejudiced against the party making the application, and had been concerned as attorney in another suit in which similar questions had arisen, where such party, after being apprised of these objections to the master, has proceeded before him on the reference, and has filed exceptions to his report.
    Objections to the execution of a reference by a particular master, if valid, should be made before such master has heard and decided the matter pending before him on the the reference.
    Objections cannot be made to the regularity of a master’s report, after the party making the objections has affirmed the regularity of the report by excepting to the same.
    This was an application, on the part of the defendant, to set aside a master’s report, upon a reference under a decree of the court, upon the ground that the master was prejudiced against the defendant-; and because he had been concerned as an attorney in another suit in which similar questions had arisen. It appeared, however, that the defendant did not make his application the first opportunity he had after he was apprised of this objection to the master; but that he had proceeded before the master, subsequent to that time, and had afterwards filed exceptions to the report.

      A. C. Paige, for the complainants.

      Stephen P. Nash, for the defendant.
   The Chancellor

said, that if these objections to the master’s execution of the reference were valid, they should have been made before such master had heard and decided the matters pending before him upon the reference. He said a party could not lie by, and take the chance of a report in his favor, and then avail himself of an objection of this kind, when he found the report was adverse to his interest; and that it was also too late to object to the regularity of a report after the defendant had excepted to such report.


text:
    Curtis and others vs. Leavitt, receiver, &c. and others.
    Where a bill is filed for the purpose of establishing the validity of an assignment to the complainants, in trust; and the defendant, in consequence of the particular frame of the bill, has entered into a stipulation for the appointment of a receiver of the fund iri controversy, and to abandon his defence in other suits instituted by the same complainants, and the court has acted upon such stipulation, and appointed a receiver accordingly; the complainants will not be permitted to amend by changing the entire character of their bill.
    The court will not, upon a special application, allow an amendment of the complainant’s bill, where the effect of the amendment will be to make the bill so defective, either in form or .substance, that a demurrer thereto can be sustained.
    A bill in chancery to protect property until some other person shall file a bill, in the same court, to settle the right to such property, cannot be sustained.

      It seems, the court of chancery will not entertain a bill to protect property pending a litigation in the probate court, as to the validity of a will or the right of administration ; where the probate court itself can fully provide for the protection of the property ofthe decedent, pending the litigation, by granting letters ad colligendum.

    This was an appeal, by the complainants, from a decision of. the vice chancellor of the first circuit, denying their application to amend their bill. The North American Trust and Banking Company had made two several assignments, to the complainants, of bonds and mortgages; the first assignment embracing about a million of dollars, and the second about half a million of dollars, in such securities, in trust to secure the payment of certain bonds of the banking company; which assignments, the receiver of the company, who was subsequently appointed to close up its concerns, and many of the mortgagors in such bonds and mortgages, insisted were unauthorized and illegal. In a great number of suits which had been commenced for the foreclosure of such mortgage's, by the complainants as such trustees, and in which suits Leavitt, as the receiver of the banking company, was made a defendant, he insisted upon the invalidity of the assignments, as a defence to such suits. Many of the mortgagors, and other defendants in such suits, also by their answers contested the right, of the complainants to the bonds and mortgages; under the respective assignments thereof from the banking company. Leavitt, the receiver, had also given notice to the complainants of his intention to file a bill against them, for the purpose of testing the validity of the assignments, and of having them set aside as unauthorized and illegal. The complainants, therefore, to save the expense of litigating the same question in each of the suits which they might be obliged to bring, for the foreclosure of the several bonds and mortgages, and to prevent the delay and expense of allowing the mortgagors, and those who had succeeded to their rights in the premises upon which the respective mortgages were liens, to litigate this question in the foreclosure suits which might thereafter be brought upon such mortgages, filed their bill in this cause, against the receiver of the North American Trust and Banking Company, and against the holders of the bonds for the security of which such assignments were made. The bill stated all these matters at length, and all the various facts and circumstances upon which it was alleged that the several assignments were made; charging, among other things, that it was necessary to have the bonds and mortgages which had become due and payable foreclosed without delay; on account of the insufficiency of the mortgaged premises, and the insolvency of many of the mortgagors. And the complainants prayed, in their bill, that the several assignments, declarations of trust, bonds or obligations, and all the transactions detailed in the bill, might, by a decree of this court, be adjudged and declared to be valid and effectual for all and every of the objects and intents therein expressed; that the claim of the complainants to the bonds and mortgages assigned to them, and to the proceeds thereof, might be decreed to be valid and effectual against Leavitt, as the receiver of the banking company, and all persons claiming under him; and that such receiver might be decreed to execute to the complainants such releases, and other conveyances, as should be necessary to give them the full possession and control of all the trust funds. They further prayed that particular directions might be given to them, by the court, for the discharge of their duties as trustees.; and that it might be decreed and adjudged that they were entitled to the salaries arid compensation specified in the assignment, or to some other reasonable allowance for their services as such trustees, and also to all necessary costs, disbursements and expenses. The complainants also prayed that Leavitt the receiver might be enjoined and-restrained from intermeddling with the bonds and mortgages assigned to them as such trustees, and from interfering with them in the discharge of their duties, or from resisting the foreclosure of the mortgages by them, or the collection of the moneys due thereon, or from doing any other act to hinder, delay, or prejudice them in the premises; that in the mean time a proper person might be appointed by this court, as a special receiver, to foreclose and collect the bonds and mortgages, and to hold the proceeds subject to the final decree of this court, or other termination of this suit; and that Leavitt, the receiver of the banking company, might be ordered and directed to execute, to such special receiver, an assignment of all his interest and claim in and to the bonds and mortgages which were then in the process of foreclosure, or which it might be necessary to foreclose and collect; the complainant's at the same time to make an assignment, to such special receiver, of their interests in such bonds and mortgages. They further prayed that Leavitt, the receiver of the banking company, might be decreed to pay to the complainants their costs, out of the funds in his hands as such receiver; and that they might have such further relief, or that they might have such other relief as might be agreeable to equity.
    The subpoena in this suit was served upon the defendant Leavitt on the first of October, 1842. He immediately appeared in the cause; and soon after he received a dopy of the complainants’ bill, and a notice of an order to answer the same. An application for the appointment of a special receiver in this cause was thereupon made, to the chancellor; who referred such application to the vice chancellor of the first circuit, to hear and decide the same. While such application was pending and undetermined, the solicitors for the several parties in the suit entered into a stipulation, or agreement} for the appointment of such receiver; upon certain conditions. Pursuant to that stipulation, or agreement, an order was made by the vice chancellor, on the 16th of December, 1842, for the appointment of J. J. Palmer, as special receiver of all the bonds and mortgages which had theretofore been assigned, by the banking company, to the complainants as trustees, by the two agreements and assignments mentioned in their bill in this cause} and therein described as the million and the first half million trusts, and which had not been collected by the trustees; excepting the bonds and mortgages upon which the complainants had commenced foreclosure suits but had not obtained decrees therein, but including the present possession of all the bonds and mortgages find the right to control the proceeds of the same; and also excepting a bond and mortgage, given by J. Miller, in the order particularly described. The order also directed the complainants, and Leavitt as the receiver of the banking company, to assign, to the special receiver, all their interest in the, bonds and mortgages, and in the decrees which might have been obtained on any of them. The order also contained full powers to the special receiver to enforce the collection of the bonds and mortgages, and to hold the proceeds thereof for the benefit of such of the parties as might appear to be entitled to the same. The order further declared that all the powers thereby conferred upon the special receiver were to be subject to the ultimate decision of the suit or suits, then pending against, or to be instituted by Leavitt, as receiver of the banking company, for the purpose of determining the validity of the assignments to the complainants} and other matters between Leavitt as such receiver and the complainants as trustees, and the other parties interested in said trusts; and subject to the further order of the court of chancery. The order contained various other provisions for the recovery and preservation of the fund in controversy. It also contained the following clauses: “ And it is further ordered, that in case the said complainants shall at any time think proper to amend or dismiss the bill filed by them in this cause, they shall have the samé right to do so as if this order had not been made; but no amendment to be made by them in the said bill shall affect the appointment, authority, or powers of the said, special receiver under this order. And in case they shall dismiss their said bill, the necessary order or orders, for continuing the authority or powers of the said special receiver, shall be first entered in the suit or suits to be instituted by the said David Leavitt, as such receiver, as hereinafter provided. And it is further ordered, that the said David Leavitt, as such receiver, shall, if he thinks proper, file his answer to the bill of complaint‘in this cause; and shall also file such cross-bill or bills, and such original bill or bills as he may be advised, 'for the purpose of determining the debts, trusts, and other matters in controversy between him, as such receiver, and the complainants, as such trustees, and the other parties interested in the said trusts; and that all parties in such suit or suits do proceed with all reasonable diligence to put the same at issue, and to complete the proofs therein, at the earliest day possible; and so as to avoid, as far as may be, all collateral questions not affecting the merits, and to obtain a decision upon the substantial right of the parties without unnecessary expense or delay.”
    On the 12th of February, 1843, the complainants gave notice of an application for leave to amend their bill, by striking out and amending the prayer thereof, so that the only prayer of the amended bill, immediately after the usual prayer for an answer from the defendants therein, would be as follows: And that the said David Leavitt may be enjoined and restrained from intermeddling with the bonds and mortgages and property assigned as aforesaid to your orators as such trustees, and from hindering, delaying, or interfering with the special receiver, to be appointed as hereafter mentioned, in the discharge of his duties as such special receiver; and from resisting or in any way .interfering with him in the foreclosure of the said bonds and mortgages, or in the collection of the moneys due thereon, or on any of the securities assigned as aforesaid to your orators; and from doing any other act to the hindrance, delay, or prejudice of your orators in the premises; and that in the meantime a proper person may be appointed, under the direction of this court, as special receiver and charged with the duties hereinafter specified; and that the said David Leavitt, as receiver as aforesaid, may be ordered to make and execute, under the direction of one of the masters of this court, proper instruments of assignment, to such special receiver, of all his right, title, interest and claim in and to all and singular such bonds and mortgages, so as aforesaid assigned to your orators, as are now in the process of foreclosure, or as it may be necessary to foreclose and collect; your orators at the same time making assignments to such special receiver, of their interests in such bonds and mortgages so to be assigned by the said David Leavitt as such receiver; and that the said special receiver may be vested with the proper and necessary powers to foreclose and collect such bonds and mortgages, and to hold the proceeds subject to the final decree of this court, or other termination of this suit; or that such special receivership may be constituted in such other manner, and with such other or further powers, as to the chancellor may seem proper. And that your orators may have such further relief, in respect only to the appointment and control of such special receiver, and to the property and funds committed to his care, or such other relief as may be agreeable to equity; this bill of complaint being filed only for the collection of the said assigned property, and the prosecution of suits for the recovery thereof, for the benefit of the parties interested therein, by means of the special receiver, until the litigation as to the rights of your orators and the said David Leavitt, as such receiver, in regard thereto, shall be settled and determined in the suit which the said David Leavitt may institute against your orators as threatened by him; or until the rights of your orators and of the said David Leavitt shall be otherwise legally determined. '
    Before the hearing of this application to amend, the defendant Leavitt had completed and put in his answer to the complainants’ bill, and had also filed a cross-bill to set aside the assignments, to the complainants in this suit, of the several bonds and mortgages constituting the million and first half million trusts, as unauthorized and invalid; which answer and cross-bill were very voluminous, and had been in a course of preparation long before notice of the application to amend was given. The vice chancellor, to whom the application to amend was referred, denied such application, with costs.

      W. C. Noyes & B. F. Butler, for the appellants.

      G. N. Titus & M. T. Reynolds, for the respondent.
   The Chancellor.

The vice chancellor was clearly right in refusing to allow; the amendments asked for in this case. At the time the original bill was filed, the complainants were aware that Leavitt, the receiver, intended to file a bill, to set aside the assignments to the complainants as illegal and unauthorized! And if they supposed they had the right to file an original bill in this court, for the mere purpose of preserving the fund in controversy until he, or some other person, should think proper to commence a suit against them, in the same court, to test the validity of'the assignments to them, they should have framed their bill accordingly, in the first instance; so as to give the defendant an opportunity to oppose the appointment of such a receiver, if the complainants were not entitled thereto upon such a bill, or if the rights of the complainants were not truly stated therein. Here the defendant has consented to the application for a receiver, and to abandon his right to set up his defence in the several foreclosure suits, upon a bill which was framed in such a manner as to enable him to set up the same defences to the claim of the complainants, and with the like effect; and which afforded proper grounds for filing the cross-bill, which has been filed by him in this case, to obtain a decree setting aside those assignments in case the complainants should not succeed in maintaining their validity. It is true, the order and stipulation reserved to the complainant the same right to amend his bill, or to dismiss the same, as if the order and stipulation had not been made. But the same order and stipulation reserved the right to the defendant Leavitt to put in his answer to that bill; and to file a cross-bill, if he should be advised to do so, for the purpose of determining the validity of the assignments, and other matters in controversy between him and the complainants and their cestuis que trust. The filing of a cross-bill^ therefore, was perfectly proper, even if it was not absolutely necessary, to settle these matters in controversy; and to bring the litigation to an end within some reasonable time. For, under the reservation contained in the stipulation and order, the complainants, at any time before the hearing of the cause upon pleadings and proofs, might dismiss their bill, if the testimony in the case was not satisfactory to them, upon payment of costs; and might thus compel- the defendant Leavitt to litigate the same matters over again in a new suit instituted by him. The intention of Lea-vitt to file such a cross-bill as was contemplated in the stipulation and order, therefore, furnished no good grounds for allowing the complainants to make an amendment, in this injunction bill, vthich would probably destroy the foundation of the-defendant’s bill, as a cross-bill. For the litigation upon the original bill in this cause, and upon the defendant’s cross-bill, could proceed pari passu, and could be decided upon the same evidence, under the order of the court.

The reservation of the same right to amend as if the stipulation and order had not been made, gave to the complainants no greater or other rights to amend than they would have had, at the same time and in the same stage of the cause, if that stipulation had not been executed. What, then, were the rights of the complainants to amend at the time this application was made 1 They had several months before that filed their bill in this cause, under oath, to establish the validity of the assignments creating the million and the half million trusts; charging the defendant Leavitt with making a false and inequitable claim to the assigned property, and with subjecting them to great delay ¡and expense, as well as endangering the trust fund, by resisting their claims in numerous suits which they had been obliged to institute to foreclose the assigned bonds and mortgages; in which suits they had made him a defendant. And in their bill they had asked to have their rights settled in this suit, and to have the trusts declared valid, and that a receiver of a considerable portion of the property should be appointed; and for an injunction against Leavitt, restraining him from interfering with the trust property, or resisting their claims in the foreclosure suits. The bill was also filed with full knowledge that the counsel of the defendant Leavitt had been a long time engaged in preparing an original bill, to be filed by Leavitt, to establish his claim to the property embraced in the million trust, and to set aside the assignment thereof, to the complainants, as illegal and void. The'filing of this bill, therefore, rendered it proper, if not absolutely necessary, that the defendant should change his original bill into a cross-bill, not only to set aside the million trust, but also to set aside the first half million trust; both of which trusts were embraced in the complainants’ injunction bill in this cause. And after the defendant Leavitt and his counsel had been for a long time engaged in preparing an answer in this suit, and a cross-bill, notice of this application was given, to amend the bill in such a manner as necessarily to change the whole structure of the defendant’s cross-bill, if not entirely to destroy its foundation as a cross-bill. Under such circumstances, even if the amendment now asked for was shown to be material to the attainment of justice, the application should only be granted, upon the terms of paying all the costs which the defendant Leavitt had incurred in preparing his cross-bill, and his answer in this suit, with the costs of the proceedings thereon down to the time of the hearing of the motion before the vice chancellor, at least; if not to the time of the final decision upon that application. For, the defendant was not bound to suspend his proceedings, upon a mere notice of such an application to amend; after he had entered into a stipulation to proceed, with all reasonable diligence, to put the matters in controversy in readiness for hearing by the earliest day possible.

I can see no good reason, however, for granting these amendments upon any terms. For instead of diminishing expense, and expediting the decision of the questions in controversy between these parties, the amendments proposed, if allowed, would probably produce both delay and expense. The complainants may indeed dismiss their bill, upon payment of costs; after obtaining an order, upon the cross-bill of the defendant Leavitt, continuing the authority of the special receiver, according to the terms of the stipulation. But that dismissal would not, probably, destroy the foundation of the cross-bill, so as to render the filing of a new original bill by Leavitt necessary; as the amendments asked for in this case unquestionably would do, if granted; the effect of those amendments beiDg to make this a mere bill to preserve the trust fund until some person thinks proper to file a bill, in this court, to ascertain to whom it rightfully belongs.

Again; the court will not grant an amendment, when the effect of such amendment will be to render the complainants’ bill so defective, either in form or substance, that a demurrer thereto could be sustained. It is not necessary to inquire whether the amendments proposed are so framed as to meet the object thi counsel for the complainants had in view when those amend • ments were asked for. That object appears to be to deprive the defendant Leavitt of the power of litigating any question whatever in this suit, and to leave the fund in the hands of the special receiver forever, unless some one of the parties to this suit should think proper to institute another and independent suit, in this court, to determine who is entitled to the fund; and that in the'meantime the defendant Leavitt may be restrained from making any defence whatever in the foreclosure suits, to which the complainants had made him a party. That, I believe, is an experiment which has never before been tried in this court. And I am unable to discover any principle upon which it can be sustained. This court, it is true, allows a .bill to be filed here for the preservation of property pending a suit in the ecclesiastical court, as to the validity of a will, or during the continuance of a suit there in the case of a contested administration. But the original ground of such jurisdiction was that the ecclesiastical court had the exclusive power to determine the question as to who had the right to administer the estate of the decedent; and that until that question was determined there was no person vested with any power, or authority, to sue for and recover the debts or other property of the decedent, so as to prevent its being lost by insolvency or otherwise. For until the decision of the court of king’s bench in Walker v. Woollaston, (2 Peer Wms. Rep. 276,) it was supposed that a grant of letters ad colligendum, or a limited administration, was not sufficient to authorize the special administrator to bring an action to recover the estate of the decedent. Since that decision it appears to have been settled, in England, that the court of chancery will not appoint a receiver to protect the property pending the litigation in the ecclesiastical court, without a suggestion that the property is in danger and cannot be secured by means of an administration pendente lite. (Knight v. Duplessis, 1 Ves. sen. 324. Richards v. Chave, 12 Ves. 461. Jones v. Goodrich, 10 Sim. Sep. 327.) In the case referred to by the counsel for the appellant, on the argument, (Wood v. Hitchings, 2 Beav. Rep. 289,) the administration pendente lite had terminated, by the decision of the prerogative court; and that court being inhibited from proceeding pending the appeal to the privy council, there was no person authorized to collect the property; except by the aid of the court of chancery. And in De Fencheres v. Dawes, (5 Beav. Rep. 110; 6 Lond. Jur. 594,) the question was not raised, by the demurrer, as to the right of the complainant to file the bill for a receiver pending the litigation in the ecclesiastical court, It is probable, therefore, that some sufficient reason was stated in the bill, in that case, for the interference of the court; or that the defendant was willing to allow that part of the bill to stand, for the purpose of preserving the property. The demurrer, to the residue of the bill, was allowed upon the ground that such bill was preriiaturely filed.

In this court, the necessity of having a discovery from the defendant, or of having an injunction or receiver to protect property from waste or destruction pending a suit, has sometimes induced the court to retain the cause here, and to give relief to the complainant in the same suit; to prevent a double litigation of the same matter by another suit in a court of law. But I am not aware of any case, in which this court had original jurisdiction over the subject matter of the litigation, as well as the right to give special relief, by the granting of an injunction, or by the appointment of a receiver of the property pending the litigation in the same court, where the complainant has been permitted to file a bill for the special relief merely; and so to frame his prayer that it would be improper for the court to settle the matter.in controversy between the parties, without the commencement of an entirely distinct and independent suit in the same court.

Here the bill upon its face professes to make out a case not only entitling the complainants to an order for the temporary relief, by an injunction and receiver pending the litigation, but also to a final decree settling the rights of the parties to the whole matter in controversy between them; provided a proper prayer for relief, or even the general prayer for relief, is left in the bill. Upon full consideration of the subject, I am satisfied that if the original bill had been framed upon the principle that is proposed by these amendments, the defendant Leavitt might have demurred to it, for want of equity; and that no receiver could have been properly appointed under it. The complainants cannot, therefore, after they have obtained the temporary relief sought for, destroy their whole bill, under pretence of amending it; and where they have no right to amend except upon application to the court, as a favor. And if they now wish to get rid of this suit, and to compel the defendant Leavitt to hold the affirmative upon the questions in litigation between them, they must exercise the right, reserved to them by the stipulation and order, to apply for the necessary order in the cross-suit of the defendant Leavitt for continuing the receivership, and for leave to dismiss their own bill, upon payment of costs, as directed by the statute in such cases. This will leave to the complainant in the cross-bill the same right, to apply for liberty to dismiss his cross-bill, and to leave the fund in the hands of the special receiver until one party or the other chooses to assume the responsibility of filing a new original bill; if there is indeed any advantage in being a defendant instead of a complainant, in this litigation, which is at least doubtful. Probably the better course for both parties, is to put the matters both of the original and cross-suits in a situation to be determined without delay, and proceed to a hearing thereon as they now stand; so that neither party will be in a situation to withdraw from the litigation, and thus prevent a final decision of the matters in controversy between them, without the consent of the other.

The order denying the application to amend was not erroneous ; and it must be affirmed with costs.


text:
    In the matter of the will of Sarah Stewart.
    Where by the laws of the state in which a feme covert is domiciled, she is authorized to dispose of her property by will, her will may be proved and established, as a valid will of personal property, in the state of New-York; and letters testamentary, or letters of administration with the will annexed, will be granted accordingly here.
    Testamentary dispositions of real property are governed by the lex loci rei sites. The will of a feme covert, therefore, is not valid as a will of real property situated in the state of New-York; although it would be valid by the laws of the state where the testratrix was domiciled, and where such will was executed.
    But the will of a feme covert, whoso residence was in the state of Ohio, may be proved and established here as a válid execution of a power of appointment, authorizing her to dispose of her real estate by will; a power to a feme covert to appoint or dispose of real property, by will, being valid under the provisions of the revised statutes relative to powers.
    This was an application to establish the will of a feme covert, who was domiciled in the state of Ohio at the time of her death; a commission having been issued for that purpose, under the provisions of the revised statutes.
    S. H. Hammond, for petitioner.
   The Chancellor.

This is an application to establish the, will of Sarah Stewart, late of Cleveland, in the state of Ohio, deceased, as a valid will both of real and personal property. It appears by the testimony, that the testatrix was a feme covert, and was domiciled in the state of Ohio at the time .of executing her will and at the time of her death, and that the will was executed there, in the presence of two witnesses. She left real and personal property in the county of Onondaga; to which she was entitled as part of the estate of her deceased father. And it is established by the testimony that, by the laws of Ohio, the will of a feme covert is valid. There must, therefore, be a decree, declaring that the instrument propounded is duly proved and established as a valid will of the personal estate of the testatrix, wherever such estate is situated. And the will must be transmitted to the surrogate of the county of Onondaga, with directions to him to grant letters testamentary thereon, or letters of administration with the will annexed; in the same manner as if such will had been duly proved before him, as a will of personal estate.

The will of this feme covert, however, is not valid as a will of real property situated within this state. For the devise of such property is governed by the lex loci rei sitm. But it is valid as an appointment of real estate under a power, in relation to any real property which the decedent, by the laws of this state, was authorized to appoint or dispose of by will, under the provisions of the 110th section of the article of the revised statutes relative to powers. (1 R. S. 735.) If any of the real estate of the testatrix, therefore, was subject to such a power of appointment by devise or testamentary disposition, under the will of her father, or otherwise, the decree may also declare that this will of Mrs. Stewart was duly executed for that purpose; and may establish it as a valid will of real estate, to that extent, and direct that it be recorded as such. But as a feme covert has no power to devise lands here, except in the execution of such a power, the decree must declare that the will is not duly proved, as a will of the real property of the testatrix situated in the state of New-York; except so far as it may operate as an appointment of her real estate^ by will, under a valid power for that purpose.


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    Wood vs. Oakley and others.
    Where a bill wag filed in 1843, to foreclose a mortgage, and the complainant omitted to make certain judgment creditors of the mortgagor parties to the suit, but he duly filed a notice of the pendency of the suit, in the form prescribed by the 9th section of the act of 1840, to reduce the expense of foreclosing mortgages in the court of chancery; Held that the equity of redemption of the judgment creditors, in the mortgaged premises, was barred by the foreclosure and sale under the decree in that suit; although such decree was not obtained until after the passage of the act of May, 1844, which virtually repealed the 9 th section of the act to reduce the expenses of foreclosing mortgages in the court of chancery.
    It is'a general rule, in the construction of statutes, that they are not to have a retro-, active effect, so as to impair previously acquired rights.
    Courts of justice apply new statutes only to cases which subsequently arise; unless there is something in the nature of the new provisions adopted by the legislature, or in the language of such statutes, which shows that they were intended to have a retrospective operation.
    It is a settled principle of the court of chancery, that a party who comes into that court for equity, must himself be willing to do that which is equitable.
    Whether since the act of May, 1844, amending the 9th section of the act to reduce the expense of foreclosing mortgages in the court of chancery, a judgment creditor, who has not been made a party to the suit, would be permitted to redeem the mortgaged premises from a sale, under a decree of ibreclosure, where the prem.-ises have been sold for their full value; unless he has some real equity, beyond @ mere nominal lien upon the equity of redemption ? Qucere.

    This was an appeal by X P. Moore, the purchaser at a master’s sale, from an order of the vice chancellor of the first circuit, directing him to complete his purchase of premises which had been sold to him, under a decree of foreclosure. ’
    Charles Oakley was the owner in fee of the mortgaged premises, in September, 1838, when he mortgaged them to The North American Trust and Banking Company, to secure the payment of $23,000. In August, 1839, C. Oakley conveyed the premises to J. R. Oakley, subject to the payment of the mortgage; which mortgage, after several mesne assignments, was transferred to the complainant In April, 1843, the complainant filed his bill in this cause, to foreclose the mortgage; and made the mortgagor, together with the subsequent purchasers of the equity of redemption, and other persons having specific liens thereon, parties. But several persons who had recovered judgments against C. Oakley, while he owned the premises, or against J. R. Oakley, the purchaser of the premises from him, and whose judgments were general liens upon the equity of redemption, were not made parties to the suit. On the day of the filing of the bill, a notice of the commencement and object of the suit, in the form, and containing all the particulars required by the act of May, 1840, to reduce the expense of foreclosing mortgages in the court of chancery, was filed in the office of the clerk of the county in which the mortgaged premises were situated. And due proof of the filing of such notice was made to the court at the time of entering the final decree of foreclosure in the cause; on the 25th of June, 1844. In September, 1844, the premises were sold by the master, under the decree, and were bid off by the appellant, in separate parcels, for the aggregate sum of $7050. The purchaser signed a written memorandum, containing the terms and conditions of the sale, and the price.bid by him for the premises, and a promise to comply with such terms and conditions. The appellant afterwards refused to complete his purchase, upon the ground that the judgment creditors, who had general liens upon the equity of redemption, had not been made parties to the foreclosure suit; and that the final decree in the suit was not made until after the act of the 7th of May, 1844, in relation to the foreclosure of mortgages, went into effect.

      E. Slosson, for the appellant.

      E. Sandford, for the respondent.
   The Chancellor.

The only question which arises in this case is, whether the appellant will obtain a good title to the mortgaged premises, as against the judgment creditors who have not been made parties to the foreclosure suit, but whose judgments were subsequent to the mortgage. And, upon that question, I have no doubt that the vice chancellor came to a correct conclusion. It is true the legislature, at its last session, indirectly repealed the most beneficial provision of the act of 1840, to reduce the expense of foreclosing mortgages in the court of chancery; and have again subjected the parties, in a foreclosure suit, to the useless expense of making all persons, who have obtained judgments or decrees against the owners of the equity of redemption, within ten years, parties to the suit. As a substitute for the unnecessary expense of ascertaining the names and residences of all persons who obtained any such judgment or decree, and making them parties to'the suit, and serving subpoenas and notices upon them if they resided in any part of the state, or of advertising for them if they were non-residents, the act of May, 1840, had directed a notice of the commencement of the suit, and of the object thereof, to be filed in the county clerk’s office, at least forty days before the entering of the decree; and with liberty to the judgment creditors to come in as interveners and protect their rights, whenever they had rights which they deemed worth protecting. The 9th section of that act then provided, that it should not be necessary that any person having a lien upon the mortgaged premises, by judgment or decree, subsequent to the mortgage, or any person having a lien or claim, by or under such judgment or decree, should be made a party to a suit for the foreclosure of the mortgage. It'also declared that every decree of foreclosure and sale of lands mortgaged, should bar and foreclose all claim and equity of redemption of every person having such subsequent judgment or decree, and his heirs and personal representatives, and of all persons claiming under him or them, subject to the provisions of the subsequent sections of that act; but that no such decree should be made unless proof should be given, in such manner as should be required by the court, that notice of tile pendency of the suit had been filed, as required by the next preceding section, for at least forty days before such decree should be made.

At the time this suit was commenced, therefore, and probably for a long time after it was in readiness for hearing, upon the pleadings and proofs, as to the defendants who made a defence, there was no necessity for making judgment creditors parties; either to foreclose their equity of redemption, or to give them a full and perfect right to the surplus moneys, if any there should be, upon the sale of the mortgaged premises. The act of the 7th of May last, relative to the foreclosure of mortgages, (Sess. Laws of 1844, p. 531, § 5,) does not in terms repeal any part of the 9th section of the act of May, 1840. It only professes to amend it by leaving out every thing that is material; so that it shall read as follows: “ No decree of foreclosure and sale of lands shall be made unless proof shall be given, in such manner as shall be required by the court, that notice of the pendency of the suit has been filed, as is required in the next preceding section, at least forty days before such decree shall be made.” So much of the 9th section of the act of May, 1840, as is inconsistent with the amendment of May, 1844, cannot, therefore, apply to any future suit. But the first clause of the original section, which declared that it should not be necessary to make any person who had a lien upon the mortgaged premises, by judgment or decree, subsequent to the mortgage, a party to the suit for the foreclosure of the mortgage, remains in full force as to every suit which had been commenced, against the proper parties, previous to the 27th of May, 1844, when the amendment of the last session took effect as a law.

It is a general rule in the construction of statutes, that they are not to have a retroactive effect, so as to impair previously acquired rights. And courts of justice will apply new statutes only to future cases which may arise, unless there is something in the nature of the new provisions adopted by the legislature, or in the language of such new statutes, which show that they were intended to have a retrospective operation. The question was fully considered by the supreme court of this state, in Dash v. Van Kleeck, (7 John. Rep. 477,) and it is unnecessary for me to refer to the authorities which were cited and commented upon in that case. Here there is nothing in the act of May, 1844, or in the subject matter of the amendment of the former act, to indicate an intent, on the part of the legislature, that the amendment should operate upon suits then pending, and which suits had been instituted against all proper parties; to enable the complainants to obtain decrees which would be effectual to bar the equity of redemption of creditors who had general liens only. A retrospective operation of the amendatory act of 1844 would operate with peculiar hardship upon the complainant in this suit; and it could be of no possible benefit to the judgment creditors, who had merely nominal liens upon the mortgaged premises. It is not pretended by the purchaser that there is any doubt as to the validity of the mortgage upon which the foreclosure took place, or that the equity of redemption is in fact worth any thing to these subsequent judgment creditors. His whole objection to the title, therefore, proceeds upon the supposition that a court of equity might, at some future time, permit these creditors to redeem the premises, upon payment of the whole amount due on the complainant’s mortgage, with interest thereon; although they had been allowed the privilege of becoming parties to the suit, and of bidding upon the property, to raise a surplus for their benefit, if they had thought proper to do so, under the provisions of the statute which are still in force, as well as by the original act.

As the statute now stands, by this amendment of the 9th section, the complainant in a foreclosure suit is obliged to file a notice of the pendency and object of the suit, at least forty days before he can obtain a decree. And judgment creditors, whose liens are subsequent to the mortgage, and who are not parties to the suit, may apply tó be made parties; or they may claim a share of the surplus moneys arising from a sale under the decree, or may apply to set aside a sale under the decree, in the same manner as if they were parties to the suit. It is very doubtful, therefore, whether this court would sustain a bill, by a creditor having such a lien, to redeem the mortgaged premises from a bona fide purchaser who had given the full value of the premises, at the master’s sale; unless such creditor could show some equity beyond a mere nominal lien upon the equity of redemption at the time of such sale, even if the act of May, 1840, had been passed as it is now left by this amendment of the original act.

It is a settled principle of this court, that a party who comes into this court for equity must himself be willing to do that which is equitable. And where a judgment creditor, who is not made a party, has no defence to interpose to the bill of foreclosure, and is aware of the existence of the suit and of the decree of sale, so that he may attend the sale and see that it is fairly and properly made, and that the premises are sold for their fair value, to raise a surplus for his benefit, if they are indeed worth more than the amount of the complainant’s debt and costs, it is hardly probable that this court would allow him the benefit of a subsequent rise in the value of the property, or in consequence of buildings, or improvements, which the purchaser under the decree had subsequently erected or made.

But whatever may be the construction and effect of this statute, as to cases which have been commenced subsequent to the amendment, in reference to the equity of redemption of judgment creditors not made parties, but whose rights are still provided for where they are actually aware of the pendency of the foreclosure suit, I am satisfied that the judgment creditors, in the present case, have no right to redeem the premises from the sale to the appellant.

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

       See Curtis v. Hitchcock, (10 Paige’s Rep. 399.)


text:
    Champlin and Jones vs. Parish.
    The statute of frauds does not alter the rules of pleading; and if the complainant states in his bill the making of a contract, without alleging’ that it was by parol, the court will presume that the contract was in writing, and duly executed, where the nature of the contract is such that it would not be valid unless it was in writing.
    And where the agreement stated in the bill is denied, by the answer of the defendant, the complainant must prove such an agreement as would be valid within the statute of frauds ; although nothing is said in the answer on that subject.
    But where the making of the agreement is admitted by the answer, the defendant must insist, in his answer, that it was not-in writing, and therefore was not binding upon him.
    Under the provisions of the revised statutes, a contract for the sale of lands is not binding upon either party, unless the agreement is in writing, and is subscribed by the party by whom the sale is made, or by his agent duly authorized. And it is not sufficient to charge the vendee, upon such a contract, that the agreement is duly subscribed by him, or his agent.
    It is’ also necessary, in order to make such an agreement valid and binding upon either of the parties, that it should be actually subscribed by the vendor, or by his authorized agent.
    A mere memorandum of the agreement, in the hand-writing of the vendor, or of his agent, containing the names of the parties and the terms and conditions of the sale, &e. but not subscribed with the name of the vendor, or of his agent, is not sufficient, under the provisions of the revised statutes.
    The revised statutes do not require a written authority from the vendor, to his agent, to enable the latter to make an executory contract for the sale of lands; but the agreement itself must be in writing, and subscribed by such agent.
    The provision of the revised statutes, declaring that an auctioneer’s memorandum, entered in his sale book, in a particular form, at the time of the sale, shall be deemed a note of the contract of sale, applies only to sales of goods; and not to sales of real estate.
    If an auctioneer is to bo considered as the agent of both parties, upon a sale of lands at auction, still he must reduce the contract to writing, at the time of the sale, and must subscribe it, as the lawfully authorized agent of the parties, or at least as the agent of the vendor; in order to render it a valid contract of sale, under the provisions of the revise^ statutes.
    This case came before the chancellor upon appeal, from the decree of the late assistant vice chancellor of the first circuit. The facts were the same as in the case of Champlin & Jones v. Haight & Herring, as reported in 10 Paige's Rep. 274, except that the terms and conditions of the sale were not reduced to writing, and signed by the parties; which in that case the answer of the defendant Haight admitted had been done. The same decree, however, was made by the assistant vice chancellor in this case, as in that. The defendant Parish appealed from the whole decree; and the complainants appealed from such provisions of it as were contained in the similar decree in the case of Champlin v. Haight, and as were appealed from in that case.

      H. W. Warner, for the complainants.

      A. M. Sherman & J. Rhoades, for the defendant.
   The Chancellor.

The questions which arose and were considered by this court, in the case of these complainants against Haight and Henry, having been settled by the court for the correction of errors, upon appeal from my decision in that case, they are not open for examination here. And if no other questions were presented by the pleadings and proofs in the present case, it would be the duty of this court to make a decree in conformity with the decision of the court of dernier resort. In that case there was no difference of opinion, between this court and the court for the correction of errors, as to the construction 'of the will of Elizabeth De Peyster, or as to the law. But that court decided that there was not sufficient evidence of an intention, on the part of the trustees, to divide the proceeds of the sale before the time appointed by the will of the testatrix; or to divide such proceeds in violation of the trust. The result of that decision necessarily was, that the defence there wholly failed ; and that the complainants were entitled to the usual decree for the specific performance of the contract which had been made and signed by the parties, in that case, by their agents duly authorized. In the present case a different state of facts was presented, for the consideration of the assistant vice chancellor; some of which facts appear to have been entirely overlooked by him in his decision.

Several formal objections to the complainants’ bill were raised by demurrer. But as the demurrer was disallowed by the court, upon the ground that it was overruled by the answer which accompanied the same, the assistant vice chancellor, very properly, decided that those formal objections, which were not raised in the answer, could not avail the defendant upon the hearing of the cause on the pleadings and proofs; and that the demurrer, which had been disallowed upon the argument thereof, must be considered as stricken out of the record.

The question as to the validity of the contract, for the sale of the premises' in question, under the statute of frauds, was raised in this case by the bill, answer, and replication. And the complainants wholly failed in proving a contract, for the sale of the premises, which was legally binding upon either of the parties to this suit. It is settled that the statute of frauds does not alter the rules of pleading. And if the complainant, in his bill, states the making of a contract, without alleging that it was by-parol, the court will presume that it was in writing, and duly-executed; where the nature of the agreement is such that it could not be valid unless it was in writing. Where the agreement stated in the bill is denied, by the answer of the defendant, the complainant must prove such an agreement as will be valid within the statute of frauds; although nothing is said in the answer on that subject. But if the making of the agreement is admitted by the answer, the defendant, in such answer, must insist that it was not in writing, and therefore not binding upon him. (Cozine v. Graham, 2 Paige's Rep. 181. Ontario Bank v. Root, 3 Id. 478. Talbot v. Brown, 1 A. K. Marsh. Rep. 437. Welf. Eq. Pl. 327. Story's Eq. Pl. 590, § 763. Harris v. Knickerbacker, 5 Wend. Rep. 638.)

Here the bill charges that the property was put up for sale, at public auction, by the complainants, and that the defendant at such sale became the highest bidder for, and the purchaser of six several lots, (describing them;) which lots were struck off to him at the said sale; that at the time and place of sale he entered into a contract of purchase, with the complainants, as to each and every of these lots; and that a note or memorandum of such contract was thereupon made and subscribed by W. H. Franklin, the auctioneer, and the lawfully authorized agent of the defendant for making the said note or memorandum in writing, stating the consideration, or purchase money, for which the several lots were sold to the defendant and purchased by him, and which written note or memorandum, was as follows, &c. as by the said note or memorandum in possession of the said W. H. Franklin would appear, upon production and proof thereof; and to which, for greater certainty, the complainants referred. The defendant by his answer, however, does not admit the making of the contract, as stated in the bill, or that he became the purchaser. It is true he admits that the lots were put up and offered for sale by the complainants, and that he bid thereon the several sums or prices mentioned in the bill, upon the terms, conditions, and promises set forth in the answer ; and, that the several lots were struck down to him. But he expressly denies that he thereby became the purchaser, of the said lots. He further states that he has not seen any note or memorandum of such sale, or of any contract relative thereto, subscribed by the said W. H. Franklin; nor has he any knowledge or information that any note or memorandum, was made and subscribed by the said William H. Franklin, as the agent of the defendant, or otherwise, except what he derives from the bill in this cause. And he therefore prays that the complainants may be left to prove the same. He also denies that the terms and conditions of the sale, as stated and set forth to him and other persons attending the sale, are truly or fully set forth in the complainants’ bill. He likewise states several other terms, or conditions, upon which the property was put up and offered for sale, which it is not necessary for me to advert to here. He then makes a general denial, in his answer, that he by himself o,r by any lawfully authorized agent, proposed, offered, agreed, or assented, by any contract, or written or printed memorandum, to purchase the lots upon any other terms and conditions than those stated in his answer; and concludes with a general denial and traverse of every allegation in the bill which is not admitted by his answer.

From this statement of the pleadings, it is perfectly evident that the defendant has not admitted the making of any agreement, with the complainants, for the purchase qf the premises in controversy, which is valid and binding within the statute of frauds. Nor has he admitted the making of any verbal or parol agreement with them, of the tenor and effect stated in the bill. And the proof, introduced by the complainants, shows that no agreement in writing, nor any noté or memorandum of .an agreement, was ever made and signed by either of these parties, or by the auctioneer as their agent, so as to constitute a written agreement which could be binding upon either. It only appears, by the auctioneer’s memorandum, that certain real estate, which was once the property of Elizabeth De Peyster, was put up and sold by some one, at the Merchants! Exchange ; and that six several lots were bid off by a person by the name of Parish, at the prices mentioned in the complainants’ bill. But the names of the complainants no where appear in the memorandum, as vendors or otherwise; nor is there any such reference to them as to indicate who were in fact the vendors on such sale, or by whom the conveyance of the premises was to be made. (See Anderson v. Harold, 10 Ohio Rep. 399.)

Under the former statute of frauds it was only necessary, to the validity of an executory contract for the sale of lands, that it should be in writing, and signed by the party sought to be charged, or by his agent duly authorized. And it was not necessary, in a suit brought against such party, to prove that the contract was so executed, as to be binding upon both parties; as a written agreement, within the statute. Nor was it necessary that the name of the party sought to be charged, or that of his agent, should be actually subscribed to the agreement. (Clason v. Bailey, 14 John. Rep. 484. McCrea v. Purmort, 16 Wend. Rep. 460.) The revised statutes, however, changed the law upon this subject very materially. Those statutes declare that every contract, for the leasing for a longer period than one year, or for the sale of any lands, or any interest in lands, shall be void; unless the contract, or some note or memorandum thereof, expressing the consideration, is in writing, and is subscribed by the party by whom the lease or sale is to be made. (2 R. S. 135, § 8.) But every instrument required to be subscribed by any party, under that provision, may be subscribed by the agent of such party, lawfully authorized. (Idem, § 9.) Under these provisions of the revised statutes, the court for the correction of errors has decided that a contract for the salé of lands is not binding upon either party, unless the agreement is in writing, and is subscribed by the party by whom such sale is to be made, or by his agent duly authorized; and that it is not sufficient to charge the vendee, upon such a contract, that the agreement is duly subscribed by him, or by his agent. (Townsend v. Hubbard, 4 Hill’s Rep. 351.) It is also necessary, in order to make such an agreement valid and binding upon either of the parties, that the agreement should be actually subscribed by the vendor, or by his authorized agent. And a mere memorandum of the agreement, in the hand-writing of the vendor, or, of his agent, con taining the names of the parties and the terms and conditions of the sale,- &c., but without being subscribed with the name of such vendor, or of his agent, is not sufficient, under the provis ions of the revised statutes. (See Davis v. Shields, 26 Wend. Rep. 34.)

In the' case under consideration, the note or memorandum of the agreement, is neither subscribed by the parties by whom the sale was to be made, nor by any person for them. It is true, the auctioneer was the agent of the complainants in making the sale. And he was probably authorized by them to execute 1 written agreement to the purchaser, as such agent; so as to make the contract binding upon them. For there is nothing in the revised statutes which requires that the agent of the vendo; should have a written power, to enable such agent to make and subscribe a mere executory contract of sale, for his principal, Previous to the revised statutes, it had repeatedly been decided, both in this country and in England, that a written power was not .necessary to enable an agent to enter into an executory agreement for the sale of lands; where the agreement was not under seal. (Coles v. Trecothick, 1 Smith’s Rep. 233. Barry v. Lord Barrymore, 1 Sch. & Lef. Rep. 29. Clinan v. Cooke, Idem, 22. McComb v. Wright, 4 John. Ch. Rep. 659. Talbot v. Bowen, 1 A. K. Marsh. Rep. 437.) And this court has decided, in a recent case, that the revised statutes has not altered the law in this respect. (Mc Whorter & Baldwin v. McMahan, 10 Paige’s Rep. 386.) But the statutory provision, which declares that an auctioneer’s memorandum, entered in his sale-book, in a particular form, at the time of the sale, shall be deemed a note of thé contract of sale, only applies to the sale of goods. (2 R. S. 136, § 4.) And even if an auctioneer is to be considered as the agent of both parties, upon the sale of lands at auction, as was insisted by the complainants’ counsel upon the argument in this case, still such auctioneer must reduce the contract to writing, at the time of the sale, and must subscribe it as the lawfully authorized agent of the parties; or at least as the agent of the vendor, in order to render it a valid contract of sale under the provisions of the revised statutes relative to contracts for the sale of lands.

The complainants in the present case having wholly failed in establishing a valid contract of sale, the vice chancellor should have dismissed the bill, with costs. The decree must, therefore, be reversed upon that ground; and a decree for the dismissal of the bill, with costs, must be entered. And the complainants must pay to the defendant the costs in this court; but the costs upon one appeal only are to be allowed. The costs are to be paid, by the complainants, out of the funds in their hands belonging to the trust estate.


text:
    Soule vs. Corning.
    Where a complainant is proceeding in a suit in equity, and in an action at law for the same subject matter, the defendant is not entitled to an order to compel him to elect in which suit he will proceed, until such defendant has fully answered the complainant’s bill.
    The complainant cannot be required to elect, while a demurrer or plea to the bill, or an exception to the defendant’s answer for insufficiency, remains undisposed of.
    Where the complainant in the suit in equity is the real plaintiff in the action at law, it is not a valid objection to an application, by the defendant, to compel the complainant to elect in which suit he will proceed, that the action at law is brought in the name of another person, as the nominal plaintiff
    This was an application, on the part of the defendant, to compel the complainant to elect, whether he would proceed in this suit, or in an action at law which had been commenced by the complainant, in the name of another person, as was alleged, for a part of the same subject matter for which this suit was brought. The defendant had demurred to the complainant’s bill, and the demurrer was still pending and undecided, at the time the appli-action was made to compel the complainant to elect.

      B. Davis Noxon, for the complainant.

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

The affidavit upon which this motion is founded, states that the suit at law is brought, by the complainant, for his own benefit, in the name of Scroepel, as the assignee of the latter. And I am of opinion that the mere fact that the nominal plaintiff, in the suit at law, is a different person from the complainant here, affords no sufficient reason for refusing an application to compel the complainant to elect. The application, however, is premature, while the demurrer in this suit is undisposed of. The rule is stated in all the books of practice, and in reported cases, to be that the defendant is not entitled to an order to elect, until he has fully answered the complainant’s bill. In Tillotson v. Ganson, (1 Vern. Rep. 103,) an order, that the complainant should elect, was discharged as irregular, because it was obtained before the defendant had answered. And in Brown v. Poyntz, (3 Mad. Rep. 24,) Sir John Leach discharged an order, to elect, which had been obtained during the pendency of exceptions to the defendant’s, answer for insufficiency; upon the ground that the complainant was entitled to a complete answer, to enable him to decide in which court it would be most advisable to prosecute his claim.

In the case of Vaughan v. Welsh, (Mosel. Rep. 210,) Lord King discharged an order to elect, which had been obtained before the argument of the defendant’s plea. And a similar decision was made by the same chancellor, a few months afterwards, in an anonymous case, where the defendant had pleaded in bar of the relief sought by the complainant’s bill. (Idem, 304.) In this last case, his lordship observed, that the order to elect went upon the supposition that the complainant had an election to proceed in either court; and yet the defendant had pleaded matters to show he had no relief in equity. Therefore the complainant was not bound to make his election until that plea was argued. And in Fisher v. Mee, (3 Mer. Rep. 45,) Lord Eldon discharged an order to elect, where the defendant had pleaded in bar to a part of the relief sought by the bill, and had answered as to the remainder; which plea had not been disposed of by the court. For, as was observed by Sir Samuel Romilly, in that case, the complainant could not except, so as to obtain a full answer, until the plea was disposed.of; and the defendant could not call upon the complainant to elect until he had answered fully.

The reasons for refusing an order to elect, during the penden-cy of the question whether the matters of a plea are not sufficient to bar all relief whatever in this court, so as to leave no case for election unless the allegations in the plea are denied, apply still more strongly to the case of a demurrer to the whole bill. For, as the order to elect proceeds upon the supposition that, if the. allegations in the complainant’s bill are true, he has a concurrent remedy in this court and in the suit at law, it is evident that be should not be called on to elect before answer; and while the defendant, by his demurrer, is insisting that he is not entitled to any relief in this court. If the demurrer should be allowed in this case, therefore, the bill will be dismissed, and no motion to elect will be necessary. And if the. demurrer is overruled, or the complainant is allowed to.amend, the defendant must put in a full and perfect answer before he can call upon the complainant to elect.

Motion denied with $ 10 costs.