text:
    In the matter of Dyer, an infant.
    A guardian of an infant who is under fourteen, appointed by the court of chancery, continues such guardian until the infant is twenty-one years of age, unless sooner removed by the court appointing him; and the infant, upon arriving at the age of fourteen, cannot have a new guardian appointed as of course.
    The court of chancery has concurrent jurisdiction with a surrogate in removing a guardian appointed by the latter, for the causes specified in the revised statutes on that subject; but the surrogate has no jurisdiction to remove or discharge a guardian appointed by the court of chancery, or to compel such guardian to account, either before or after his removal by the court appointing him.
    A surrogate has no authority to remove a guardian, or to accept the resignation of a guardian appointed by himself and appoint another in his place, or to compel a guardian to account, except in the particular cases specified in the statute on this subject.
    Where the surrogate appointed a new guardian in the place of the guardian appointed by the court of chancery, and proceeded to settle the account of the old guardian ; Held, that the whole proceedings were void for want of jurisdiction.
    This was an application to the chancellor, to discharge and cancel a mortgage given to the register of this court by Genet T. Lansing, as the general guardian of the person and estate of Thomas Dyer, an infant, appointed by the court of chancery in 1828, to secure the amount due from him as such guardian, upon payment of the balance due from him to the new guardian appointed by the surrogate. It appeared, from the papers presented on the application, that after the infant had arrived at the age of fourteen years, he applied to the surrogate of Albany county, who appointed a new guardian in the place of the guardian appointed by the court of chancery ; and proceeded to take the account of the former guardian, as if such guardian had been originally appointed by such surrogate.

      W. W. Frothingham, for the petitioners.
   The Chancellor.

The surrogate had no jurisdiction or authority, in this case, to appoint a new guardian in the place of the one appointed by the court of chancery. And the appointment of such new guardian, and the taking of the account of the old guardian, by the surrogate, were both unauthorized and void. In the case of Nicoll, an infant, (1 John. Ch. Rep. 25,) Chancellor-Kent decided that a guardian, appointed by the court of chancery, for an infant under the age of fourteen, continued until the infant arrived at twenty-one, unless such guardian was removed by this court upon good cause shown; and that the infant could not have a new guardian appointed, as of course, on his arriving at the age of fourteen. This court may remove a guardian appointed by a surrogate, for good cause shown. It has, in this respect, concurrent .jurisdiction with the surrogate, since the revised statutes have given jurisdiction to the surrogate to remove a guardian appointed by himself, on proof of the incompetency. or misconduct of the guardian. But the surrogate has not concurrent jurisdiction with the chancellor, to remove or change a guardian appointed by the court of chancery, or to compel such a guardian to account, either before or after such removal. The guardian appointed by the surrogate only continues until the infant arrives at the age of fourteen, and until another guardian is legally appointed; and if a guardian so appointed is superseded by the appointment of a new guardian, or is removed by the surrogate appointing him, for incompetency or misconduct, such surrogate has jurisdiction to campe¡ t])e guardian to account, concurrent with the court of chancery. But the surrogate has no authority to call any guardian to account, or to discharge or remove a guardian, except in the particular cases specified in the statute ; or even to accept the resignation of a guardian appointed by himself and to appoint another in his place—the surrogates, in this respect, taking no incidental power or constructive authority, by implication, which is not expressly given by statute. (Matter of Andrews, 1 John. Ch. R. 99. 2 R. S. 220, § 1.) If a guar- - dian appointed by this court has wasted the estate of his ward, or has become incompetent or irresponsible, an application must be made here to remove him, and to compel him or his sureties to account. Until he is so removed, no new guardian can be appointed in his place. The mortgage which this guardian has given cannot therefore be discharged upon this application.

Petition dismissed.


source: Caselaw Access Project

author: The Chancellob.

license: Public Domain

text:
    Bulkley vs. Van Wyck.
    The answer of infants by their guardian is a pleading merely, and not an eiamination for the purpose of discovery; it is not evidence therefore in their favor, although it is responsive to the bill and sworn to by their guardian ad litem.
    Á complainant cannot, by any form of pleading, compel an infant to become a witness against himself.
    Where the defendants are not jointly interested in respect to the claim made against them by the bill, the complainant may waive an answer on oath as to some of them, and not as to the others.
    Where a party in the suit has no interest in a question which is brought up on an appeal by another party, the party who has no interest in the question can neither be charged with nor allowed costs upon such appeal.
    This was an appeal from so much of an order of the vice chancellor of the first circuit, allowing the complainant to amend, as precluded him from waiving an answer on oath from the new parties; who, by the amendments, were to be made defendants in the suit.

      W. Silliman, for the complainant.
    «8. L. McDonald, for the defendant
   The Chancellob.

The defendant in this case has no interest whatever in the question presented upon this appeal; as the answers of the new defendants, responsive to the bill, cannot be used as evidence, either for or against him, at the hearing, in relation to any matter in which he has a personal interest. If, as suggested, the new defendants are infants, their answer on oath, by their guardian, would not be evidence in their own favor ; and in that case it is perfectly immaterial to them whether an answer on oath is or is not waived, as the statutory provision on this subject is not applicable to the case bf an infant, who never could be compelled by the complainant to become a witness against himself, by any form of pleading. He is not allowed to answer personally; and his answer by his guardian is a pleading merely, and not an examination for the purposes of discovery, although an answer on oath is not waived by the complainant. If any of the childeren are adults, they may have an interest in the question whether an answer on oath shall be waived as to them. But as they were not before the court, on the application to amend the bill for the purpose of making them parties, no decision could be made which would prevent them from making the objection afterwards, if the waiver of an answer on oath was irregular as to them. The proper course, therefore, would have been to allow the complainant to make the amendment as proposed, in this respect; saving the right of the new defendants to object to the form of the bill when they should be brought before the court, to answer the same. I do not, at present, see any legal objection to a complainant’s waiving an answer on oath as to one defendant and not as to another, where they are not jointly interested in the claim made against them. Where the complainant seeks to charge all the defendants jointly, in the same right, it might perhaps furnish a good ground of demurrer to the form of the bill, that the answer on oath was waived as to one defendant and not as to the others. Upon this question, however, I do not intend to express an opinion in the present case, as it is not now before me for decision. The object of the complainant in this suit, so far as I can understand it from the papers before me, is, to show that the property in controversy belongs to the defendant, and not to his children who are to be brought before the court by the amendment, and to obtain a decree for the payment of his debt out of the property on that ground. Their interests, therefore, are separate and distinct, and the answers or admissions of one would not be evidence for or against the other.

The order of the vice chancellor must be modified so far as to permit the complainant to waive an answer on oath as to such of the children of the present defendant as are infants, and also as to such of them as are adults; but without prejudice to their rights, if they have any, when they shall be brought before the court as parties. As the defendant has no interest in the question which is brought before the court by this appeal, he is neither entitled to, nor can he be charged with costs; and his children, who are not yet made parties to the suit, by the amendment of the bill, are in the same situation as to costs. None can, therefore, be given, either against or in favor of the appellant.

The proceedings are to be remitted to the vice chancellor,, so that the amendments may be made there, and the cause be brought to a hearing before him.


author: The Chancellor.

text:
    Field vs. Maghee.
    ’The real party in interest must be a complainant in the court of chancery, and the assignee of a chose in action is not authorized to file a bill for the recovery of the same in the name of the assignor, who has parted with all his interest in the subject matter of the suit.
    Where the complainant in a suit in chancery is the real party in interest, the court has no jurisdiction over third persons, who are not parties to the suit, to compel them, on a summary application, to pay the costs of the suit, or to refund monies received by them under a decree which was afterwards reversed, and which they received in consequence of their having an equitable lien upon the monies to be recovered in the suit, as security for a debt due to them by the complainant.
    Whether the money collected under the decree, and paid over to such creditors of the complainant before the reversal of the decree, can be recovered back from them after such reversal ? Qncere.
    This was an application by the defendant to compel S. and J. Kellogg and W. Osborn to refund a sum of money which bad been collected under the original decree in this cause, before it was reversed; and also to compel (hem to pay the costs which had been awarded to the defendant, against the complainant, on an appeal by the latter to the court for the correction of errors. The complainant was a judgment creditor of Emma Boyer; and the bill in this cause was filed to obtain satisfaction of the judgment out of her real estate, which the complainant alleged had been fraudulently conveyed to the defendant, Mary Maghee. The vice chancellor made a decree in favor of the complainant, and about $1000 was made by a sale of the land under that decree; which sum, after deducting costs, &c. was paid over, by the complainant’s solicitor, to (be Kelloggs and Osborn, to whom, previous to the commencement of ibis suit, (he complainant had hypothecated his claim as security for the payment of a debt. The defendant afterwards appealed to the chancellor, and the decree of the vice chancellor was reversed ; and the money which had been raised by the sale of the land, and paid over to the complainant, or his solicitor, was decreed to be restored to the defendant, with interest. The complainant afterwards appealed to the court for the correction of errors, and the decree of the chancellor was affirmed, with costs.

      William Kent, for the defendant.

      F. B. Culling, for the Kelloggs and Osborn.
   The Chancellor.

The defendant’s application is founded upon the supposition (hat there had been an assignment of the complainant’s judgment, to the Kelloggs and Osborn, and that the suit in this court was brought in the name of Field, as a nominal complainant merely, for their benefit. If such had been the fact, it would of itself have been a perfect defence to the suit, as the complainants in this court must be the real parties in interest, where a chose in action has been absolutely assigned. That defence was set up in the answer of the defendant, but no proof was introduced to substantiate the fact, although this allegation in the answer was put in issue by the replication. For the purposes of this suit, therefore, it is settled that Field was the legal and equitable owner of the'judgment for the satisfaction of which the bill was filed. Although the Kelloggs and Osborn had an equitable lien upon the monies which might be recovered in the suit, for the payment of their debt, unless Field should discharge that debt in some other manner, the nominal plaintiff was in fact the real party in interest as complainant, and this suit was properly brought by him in his own name. The Kelloggs and Osborn, therefore, were neither the nominal nor the real complainants in this court. And the court has not jurisdiction over them, upon a summary application, to compel them to refund the money received from the complainant’s solicitor, or to pay the costs of the appeal in the court for the correction of errors. It is not shown that Field, or his sureties in the appeal bond, are insolvent. The defendant, therefore, has a perfect remedy by an execution against Field, or by a suit upon the bond, to obtain satisfaction for the costs of the appeal. And if the Kelloggs and Osborn are liable to refund the money received under the original decree, it can be recovered by the defendant in an action for money had and received to her use. If the decision in Lyman v. Edwards, (2 Day's Rep. 153,) was correct, they probably are not liable at all, and her only remedy is against Field, upon the decree of reversal. I am, however, strongly inclined to doubt the correctness of that "decision ; but as the question is not now properly before me, I do not wish to be considered as having formed a definitive opinion on this point.

The motion must be denied, but it is denied without costs.


text:
    Gould vs. Spencer.
    It is irregular to make any process returnable on Sunday. And where the complainant made his subprena returnable on that day, and afterwards took out an attachment thereon against the defendant for not appearing, the court set aside the attachment as irregular.
    The court of chancery has jurisdiction to restrain proceedings elsewhere, for an abuse of its process, and may compel the injured party to apply to this court for redress. It is not necessary, therefore, to make it a condition of an order setting aside an attachment for irregularity, that no suit at law shall be brought; but it will be sufficient if a restraining clause is inserted in the order of this court.
    This was an application to set aside an attachment, which had been issued against the defendant, for not appearing. The appearance was entered with the register, at Albany, on the 7th of August, 1835; which was within twenty days after the return day of the subpoena. And a notice of the appearance was sent to the complainant’s solicitor, but through some mistake was not received. On the morning of the 24th of August, one of the solicitors for the defendant informed the complainant’s solicitor that he had sent such notice of appearance to be served on him. But the latter said he had not received it, and that he had issued an attachment against the defendant and should not accept notice of appearance without payment of the costs of the attachment. On the same day a notice of appearance was served ; and on the third of September, the defendant was arrested on the attachment, by the sheriff of the county of Oswego. It was subsequently ascertained that the subpoena was made, returnable on Sunday, and that the order for the attachment was not entered with the register, at Albany, until the 24th of August, and the attachment was tested on that day.
    J. Rhoades, for the complainant.
    S. Stevens, for the defendant.
   The Chancellor.

The attachment in this case was irregularly issued, and must be set aside. The order for the attachment must have been entered at Albany, on the 24th of August, after the opening of the register’s office on that day. And yet, in the morning of that day, the complainant says he saw one of the defendant’s solicitors and informed him that he had issued an attachment against the defendant. The attachment, therefore, must have been issued before the order which authorized the issuing of such a.process was entered. And as no costs were legally due at that time upon the attachment thus irregularly issued, the solicitor should have recalled it, and not allowed the defendant to be arrested thereon after the notice of appearance was received.

Again ; the subpoena which was made returnable on Sunday was irregular, and did not warrant the entering of the order for an attachment, even if no notice of appearance, had been given. This court, although legally open on all other days, cannot be opened or held on Sundajr, for any purpose whatever. (2 R. S. 275, § 7.) It is therefore irregular to make any process returnable on that day. Sunday is expressly excepted in the 19th rule, which authorizes process to be made returnable on any day, either in vacation or term, unless otherwise directed.

As the complainant’s solicitor insisted upon strict practice, in this case for the purpose of getting costs, which had arisen from the accidental delay of the solicitors of the defendautsin serving their notice of appearance, and has himself made a fatal slip, his client must be charged with the costs of this application, and the costs on the- attachment. The order for setting aside the attachment as irregular must contain a clause restraining the defendants from bringing any action at law for the illegal arrest. It is not necessary that the order should be, in its terms,'conditional, as this court has jurisdiction to restrain a proceeding elsewhere for any abuse of its process, and to compel the party injured thereby to come here for compensation. (Aston v. Heron, 2 Mylne & Keene, 390. Nugent v. Nugent, 2 Moll. Rep. 378.)


text:
    Ryckman vs. Parkins.
    Where the interests of the parties to a suit are adverse, nothing beyond legal taxable costs can be allowed by one party as against another. Neither does the court allow extra counsel fees, to be paid to the complainant’s counsel, out of a fund in court belonging to a defendant, except in those cases where the counsel has been employed to recover or create such fund for the joint benefit of both parties.
    The complainant in a judgment creditor’s bill is not entitled to extra costs and counsel fees, to be paid out of the estate of the debtor, in the hands of a receiver appointed by the court.
    As a general rule, a receiver appointed in a cause should not employ the solicitor of either of the parties in the suit to assist him in the discharge of his duties as receiver.
    Upon the equity of the statute allowing interest to be collected upon executions, issued upon judgments rendered on contracts or on prior judgments, complainants in chancery are entitled to interest upon decrees in similar cases ; and the decree should be so drawn as to direct the payment of interest, upon the amount decreed, until such amount is paid according to the directions of the decree, so that the interest may be levied upon the execution.
    Where a creditor’s bill is filed to obtain satisfaction of a judgment against the defendant, in an action of tort, upon which no interest could be levied Upon the execution at law, the complainant is not entitled to interest in this court, until tire final decree directing the payment of the debt and costs out of the defendant’s property ; except in those cases where the defendant has fraudulently assigned or transferred his property, which might otherwise have been reached by an execution upon thé judgment.
    As a general rule, the court of chancery does not allow interest on unliquidated demands, or on judgments upon which interest could be levied upon an execution at law.
    This was an application, on the part of the complainant, for an order requiring the receiver appointed in this case, to pay, out of the fund in his hands, interest on the judgment for the satisfaction of which this suit was brought; and also the complainant’s reasonable counsel fees, which he had expended in the prosecution of the suit. The judgment was obtained in an action of slander, in January, 1833, and the execution xvas returned, nulla bona, a few days thereafter» The bill in this cause was filed on the 21st of February, in the same year, and an order for the appointment of a receiver was subsequently made. On the 21st of June, 1833, a final decree- was made, upon the bill taken as confessed, directing payment, by the receiver, out of the funds of the defendant in his hands, of the amount of the cómplainant’s judgment, with the costs of this suit. The receiver afterwards paid over to the complainant his -taxable costs, together with the principal of the judgment in the slander suit. And upon an ex parte application for the payment of the interest and counsel fees, as it appeared that several other creditors’ bills had been filed against the defendant since the commencement of this suit, the chancellor declined making any order; but permission was given to the complainant to renew the application upon due notice to all parties interested in such application. Such notice having been given,

      J. Rhoades, for the complainant,
    renewed the motion, both as to interest and counsel fees. He insisted that the proceedings in this case were in the nature of a suit on the judgment, in a court of law; in which suit interest might be recovered, by way of damages, for the detention of the debt.

      J. L. Graham, the receiver,
    submitted the rights of the defendant, and others whom he was supposed tq represent, to the decision of the court; insisting,.however, that the allowance of the counsel fees to the complainant, beyond his taxable costs, would be unprecedented in such a case.
    /. Williams, for H. Thison and R. Stephenson, the complainants in two of the subsequent suits, opposed the application.
   The Chancellor.

There is no foundation whatever for the claim for payment of the complainant’s counsel fees, out of the fund which belongs to the defendant, or to his other judgment creditors. If the receiver has employed any of the Complainant’s counsel to assist him in the recovery or protection of the fund, in the performance of which services they have acted as his counsel, and not in the character of solicitors or counsel for the complainant, they must look to the receiver for payment. As a general rule, however, the receiver is not allowed to employ the solicitors of either of the parties in the suit to assist him in the discharge of his duties. The solicitors of the several parties are bound in duty to their clients to watch the proceedings of the receiver, and to see that he faithfully discharges his trust. The undertaking to act as the solicitor or counsel for the receiver, under such circumstances, would therefore frequently cast upon the person thus assuming to act, inconsistent and conflicting duties ; both of which duties could not properly be discharged by the same person. As between party and party, the counsel for the complainant has in no case a right to be paid extra counsel fees out of a fund belonging to a defendant, except where the counsel has been employed to obtain or create such fund for the joint benefit of both parties. Where the interests of the parties are adverse, nothing beyond the legal taxable costs can be allowed by one party as against the other. The application for counsel fees must therefore be rejected.

The decree in this case, which was final as to the right of the complainant to obtain satisfaction of his judgment out of the defendant’s property, directed the payment of the amount due on the judgment at the date of the decree ; to" be paid by the receiver out of the effects of the defendant. And if that payment was delayed for the purpose of getting in the estate, and converting the same into money, it is right and proper that the complainant should be paid the legal interest upon what was then due, until the debt was actually paid. The statute allowing interest to be collected on executions, on judgments rendered upon contracts or upon prior judgments, (2 R. S. 364, § 9,) does not, in terms, extend to executions issued upon the decrees of this court. But upon the equity of that statute, the complainant is entitled to interest upon a decree in such cases. And the decree should be so drawn as to direct the payment of interest on the amount decreed, until the principal is paid according to the directions contained in the decree; so that the interest may be levied upon execution. In the present case, as the fund is in the hands of the office* of the court, he may be directed to pay the interest "which accrued after the date of the decree, although the decree itself contained no express direction to that effect in case the payment should not be made immediately.

Whether the complainant is entitled to interest, intermediate the docketing of the judgment and the entry of the final decree of this court, depends upon the question as to what was the amount due upon the judgment at the time the decree was made. That is, the amount which the receiver was then directed to pay. And if no interest was then due upon the judgment, none can be allowed.under this deéree, which cannot be altered except upon a rehearing. • If the judgment had been founded upon contract, the plaintiff would have been entitled to interest thereon; and the amount due at the date of the decree would, in that case, have been the aggregate amount of the judgment and the interest thereon from the time such judgment was rendered. But, upon a judgment in tort, no interest is recoverable, except as damages for the detention of the debt. And a decree for the payment of the amount of a judgment, in such a case, but containing no direction as to the interest or damages, would only authorize the Collection of the-original judgment. In Stafford v. Mott, (3 Paige’s Rep. 100,) which is somewhat analogous to the present, I arrived at the conclusion that a direction to a master to ascertain the amount due on á judgment, which judgment did not, per se, carry interest, was not a direction to compute and allow interest; but that the amount due on a judgment in tort, was the sum for which such judgment was entered, including the costs. As a general principle, a court of equity does not allow interest on unliquidated demands, or on judgments upon which interest cannot be levied by execution. But when the demand has been liquidated by the report of a master, or the decree of this court, it is the usual course here to allow interest from that time:. (Hunn v. Norton, Hopk. Rep. 344.)

The statute, under which the bill in this cause was filed, authorizes the court to decree satisfaction out of the defendant’s _ . . _ . . „ . 1 effects and choses in action, &c. of the sum remaining due on the judgment. In ordinary cases, therefore, the court will not decree the payment of precedent interest, upon judgments in tort; except in those cases where the defendant has fraudulently assigned or transferred his property, which would otherwise have been liable to the execution at law. In this case, it is not alleged, or even suggested, that the defendant ever had any property in this state which was liable to be sold upon execution. Neither has he delayed the complainant in obtaining bis decree, by a vexatious defence or protracted litigation. There is nothing shown, then, to sustain the claim for interest prior to the decree, or to take this case out of the general rule. This part of the complainant’s claim must therefore be disallowed. And as he has succeeded only as to a part of his application, and has subjected the fund belonging to others to the expense of opposing the residue of his claims, the costs of the motion are not allowed to him , which costs would have been allowed, if he had limited his claim to the interest, on the judgment, which has accrued subsequent to the decree for payment

An order must be entered directing the receiver, out of the fund in his hands, to pay interest on the amount of the judgment from the date of the decree, and on the costs from the time of taxation, to the time when actual payment was made.

The costs of Thison and Stephenson, in opposing this application, are also to be taxed and paid by the receiver out of the fund in his hands. And the trust of the receiver is then to be considered at an end, so far as concerns the complainant in this suit; but not as to other suits, in which he has been appointed the receiver of the defendant’s estate and effects.


text:
    Kelly & Frazier vs. Eckford and others.
    In ordinary cases the complainant cannot he compelled, upon motion, to sub-, mit his books, or other documentary evidence in his possession, to the inspection of the defendant, to enable the latter to answer the bill and make his defence in the suit. But if the complainant, upon request, refuses ta permit the defendant to inspect such books or documents, he cannot after-wards object that the answer is insufficient in not stating their contents. And where the books or documents of the complainant are material for-the defendant’s defence of the suit, the defendant must file a cross bill against the complainant for the discovery of them.
    The rule is different as to partnership books and papers, to the inspection of which both parties have an equal right, but which are in the hands of one of the copartners, or of his assignees or representatives. In such a case, upon the application of either party, and in any stage of the suit, the adverse party will be compelled to deposit the partnership hooks and papers', which are in his possession or under his control, in the hands of an officer of the court, for the inspection of the party malting such application, and that such party may take copies thereof, if necessary.
    In courts of law it is a matter of course to compel a party who has the pas-, session of a document belonging equally to both, tó produce the same for the inspection of his adversary, for the purposes of the suit,
    This was an appeal, by the complainants, from an interlocutory order of the vice chancellor of the first circuit, directing them to deposit certain partnership books and papers with a master, for the inspection of the defendants, before answer. The hill was filed by the complainants, as the assignees of J. Beacham, for an account and settlement of a partnership transaction between Beacham and H. Eckford, the defendants11 .testator. The petititipn, upon which the order of the vice chancellor was founded, stated that an inspection of the partnership books and papers, in the hands or under the control of the complainants, was necessary to enable the defendants to answer the bill, and to make their defence with a due regard to the interests of the estate of the decedent.

      J. RhoaSes, for the complainants.

      B, Cutting, for the defendants.
   The Chancellor.

In ordinary cases the defendant is not entitled, by motion, to call upon the complainant for the production of his books, or other documentary evidence in his possession, before answer, to enable such defendant to make his . defence. The case of The Princess of Wales v. The Earl of Liverpool, (1 Sawns. Rep. 114, 2 Wils. Ch. Rep. 29, S. C.,) in which such an order was made by Lord Eldon, and where he subsequently dismissed the bill because the note stated in such bill was not produced, has always been considered as a political decision. The decision of Jones v. Lewis, (2 Sim. & Stu, 242,) by Sir John Leach, the only case in which it has been followed in England, was afterwards reversed by Lord Eldon himself. (See 4 Sim. Rep. 324.) And in the recent, case of Penfold v. Nunn, (5 Sim. Rep. 409,) where the defendant asked for the production of documents in the hands of the complainants, to enable him to answer the bill, Sir Launcelot Shadwell said he never understood the reason upon which the decision in The Princess of Wales v. Lord Liverpool proceeded, and that he could not accede to it; that if the defendant wanted to prove, in the action which he had brought, the consideration given for the bill of exchange which he then sought to have delivered up, he ought to have filed a bill against the plaintiff, for a discovery of the documents which he then asked to have produced ; that the defendant was at liberty to call upon the plaintiff to produce the documents, and if the latter refused to do so, he could not afterwards complain that the answer was insufficient; and that if the defendant required them for the purposes of his defence in the suit, he ought to file a cross bill against the plaintiff for a discovery of them. A similar decision was made by this court, a few days since, in the case of Corning v. Heartt. (In Chanc. Dec. 24, 1835. See also Lupton v. Pearsall, 2 John. Ch. Rep. 429; Denning v. Smith, 3 Idem, 409; Spragg v. Corner, 2 Cox’s Cos. 109 ; Hare v. Collins, Hogan’s Rep. 193.)

This principle of requiring the defendant to file a cross bill of discovery only applies, however, to those cases in which the defendant wants the inspection of the complainant’s documentary evidence to enable him to put in his answer, or to make out his defence to the suit. But it is not applicable to the case of partnership books and papers, in the hands of one of the partners, Qr his assignees or representatives, where both parties have an equal right to the examination and inspection thereof for the purposes of the suit. In such cases it is the constant and uniform practice of this court, upon the application of either party, and in any stage of the suit., to order the adverse party to deposit any of the partnership books and papers, which belong equally to both, in the hands of an officer of the court, for the examination and inspection of the adverse party ; and to permit copies thereof to be taken by the several partners, or their representatives. It was to a case of this kind that Lord Eldon referred, in the case of Pickering v. Rigby, (18 Ves. 484,) and in Micklethwait v. Moore, 3 Meriv. 296 ;) although he does hot appear to have expressed his meaning very clearly in either case, or to have explained the true principles upon which the production is refused in the case of the plaintiff’s own papers, while it is granted as to the partnership books and papers to which both parties have an equal right. In a court of law it is a matter of course to compel one party, who has the possession of a document which belongs equally to both, to produce the same for the inspection of his adversary, for the purposes of the suit, (See Reid v. Coleman, 2 Cramp. & Meeson, 456 ; 4 Tyrwh. 274, S. C)

There was no evidence before the vice chancellor that the defendants had any books or papers, belonging to the partnership, in their possession. The order appealed from was therefore right; and' it must be affirmed with costs. If the defendants have in their custody or power any of the partnership books or papers, the plaintiffs will be entitled to" an inspection thereof, upon an affidavit that such an inspection is necessary for the' purposes of the suit, on making a proper application to the vice chancellor for such an order.


text:
    Hovey vs. Hovey and others.
    The complainant’s solicitor is not entitled to have taxed, against the adverse party, the expense of ascertaining the residences of the defendants, as a necessary disbursement of the solicitor in the cause.
    The only disbursements which are properly taxable against the adverse party, under the provision in the fee bill on that subject, are disbursements by the solicitor for postage; for exemplifications to be used in the suit; for necessary searches in the public offices; for the publication of notices, when required by law or the practice of the court; and other disbursements of the like nature.
    It is no part of the duty of the solicitor, as such, to be at the expense of ascertaining the residences of the parties, or any other facts of that nature, for the purpose of enabling him to commence and prosecute the suit. And if the client employs his solicitor to ascertain such facts for him, it is a proper allowance on taxation between solicitor and client, but not as between party and party.
    This was an appeal from the decision of the vice chancellor of the fourth circuit, upon an application to him to review the taxation of one of the taxing masters. The bill was filed to foreclose a mortgage. The complainant resided in the state of Vermont; and it became necessary to make several heirs at law of the mortgagor residing in this state, but whose places of residence were unknown to the solicitor, parties to the suit. The solicitor therefore employed an agent, who lived in the part of the state where those defendants were supposed to reside, to ascertain their residences, and to serve the subpoenas upon them when found. The agent charged $2 a day, for his time and the expenses of himself and horse, while he was thus employed. And the solicitor claimed to be allowed the amount thus paid to the agent, in addition to the usual allowance for serving subpoenas; to be taxed as a part of the necessary disbursements in the suit. The taxing master decided that the allowance fixed by the fee bill for the service of a subpoena, was all that could be taxed as against the adverse parties; and that decision was confirmed by the vice chancellor, upon an application for a retaxation of the costs.

      J, Ellsworth, for the complainant.

      D. Cady, for the defendant S- Hovey-
   The Chancellor.

This court has already decided that no extra allowance, as a necessary disbursement, can be made' to the solicitor, or to any other officer of this court, upon taxation, for any service performed by such officer or any other person, where a specific allowance is made in the fee bill for such service. (2 Paiges Rep. 354, 471.) The solicitor in this case does not, therefore, claim an extra allowance for the expense of serving the subpoena on the defendants; but he supposes he is entitled to an allowance for the necessary expenses and services of his agent, in travelling several days for the purpose of ascertaining the residences of the defendants. He is right in supposing that the performance of such a service is not embraced within the specific allowance of 75 cents for serving a subpoena to appear and answer. But it is not1 such a disbursement of the solicitor, in the suit, as is taxable against the adverse party, under the provisions in the fee bill allowing the actual disbursements of the solicitor, necessarily incurred by him in the progress of the cause, to be taxed. (2 R. S. 634.) It is no part of the duty of the solicitor, as such, to be at the expense of ascertaining the residences of the parties, or any other facts of that nature, for the purpose of enabling him to commence and prosecute the suit. The client should perform that duty, and give the necessary information to the solicitor, And, if he employs his solicitor to do it for him, the disbursements necessarily incurred by the solicitor in obtaining such information, may be allowed on taxation as between the solicitor and his client; but they cannot be taxed, or allowed, as against the adverse party in the suit.

The provision of the revised statutes as to the allowance of disbursements to solicitors in chancery, and attornies in the supreme court, on the taxation of their costs, (2 R. S. 634, § 20,) was taken from the solicitors’ fee bill of 1813; where it was intended to apply only to postages paid by the solicitor in the progress of the cause, or other disbursements of the like nature, which the solicitor himself was bound to pay in the first instance. (See 2 R. L. 13.) And the revisers, in extending this provision to disbursements in the supreme court, say it is extended and guarded, so as to include disbursements for necessary exemplifications, &c. according to the decision of the supreme court in Jackson v. Root, (18 John. Rep. 336.) It is evident, therefore, that this provision of the fee bill cannot be construed to embrace a charge like that which is claimed in this case. There are many cases of disbursements by an attorney, or solicitor, for the benefit of his client, which are not taxable against the adverse party as costs in the cause, but which form a proper subject of allowance to the attorney or solicitor as against his own client; and this appears to be a disbursement of that description. The only disbursements which are properly taxable against the adverse party, under this provision in the fee bill, are disbursements by the attorney or solictor for postage, for exemplifications to be used in the suit, for necessary searches in the public offices, and for the publication of notices, where they are required by law or by the practice of the court, and other disbursements of the like nature.

The taxing officer, and the vice chancellor, were therefore ¡right in refusing to allow the disbursement claimed in this cause, for the necessary expense of ascertaining the residences of the defendants; and the decision which is appealed from must be affirmed.


author: The Chancellor,

text:
    Devanbagh vs. Devanbagh.
    A sentence of nullity, declaring a marriage invalid on the ground of the physical incapacity of the defendant cannot be pronounced, upon a bill taken as confessed for want of an appearance or answer, without examining the defendant on oath before the master to whom it is réferred to take the proofs of the facts and circumstances stated in the complainant’s bill.
    To authorize a sentence of nullity, the physical incapacity of the defendant must have existed at the time of the marriage, and must be incurable; and both these facts must be established by the most satisfactory evidence, although they are admitted by the defendant.
    The court of chancery will not decree a marriage void on the ground of the impotence of the defendant, until a surgical examination has been had for the purpose of ascertaining whether the alleged incapacity is incurable, if such defendant, is within the jurisdiction of the court.
    Upon a bill filed to annul a marriage on the ground of impotence, the court has the necessary power, and will compel the parties to submit to such a surgical or other examination as may be necessary to ascertain the facts necessary to a correct decision of the cause; but in a suit brought against a female, the court will not compel her to submit to a further examination, if it appears that she has been already sufficiently examined by competent surgeons, whose testimony can be obtained by the complainant, to show that her physical incapacity is incurable.
    The object of this suit was to obtain a decree declaring the marriage contract between the parties a nullity, on account of the alleged impotence of the wife. The bill was filed by the husband, in January, 1S35, about fifteen months after the solemnization of the supposed marriage, and was duly verified by the oath of the complainant, as required by the 163d rule of the court. The complainant alleged, among other things, that the marriage was solemnized in this state, where both of the parties then resided, and where they continued to reside; he believing, from the dress, appearance and representations of the defendant, that she was a woman capable of entering into the marriage state, and of performing all the duties and relations of a wife ; that he took her to his residence, and for the space of six months endeavored to cohabit with her as his wife, until he ascertained and became satisfied, both from his own knowledge and from her admissions and confessions, that she was and ever had been physically incapable of cohabitation or sexual intercourse, or of entering into the marriage state. The bill was taken as confessed ° , against the defendant^ for not appearing ; and the complainant thereupon applied to the court for a reference to ascertain ■the truth of the matters charged in the bill, and for special directions to the master as to the manner in which the impotence of the defendant was to be ascertained, and as to the nature and kind of proof which should be required by the master to ascertain the fact.

      Israel Williams, for the complainant.
   The Chancellor,

The revised statutes have authorized a proceeding of this kind, at the suit of the injured party, against the party whose incapacity is alleged. But it is expressly declared that no sentence of nullity shall be pronounced solely on the confessions or declarations of the parties; and the court is in all cases to require other satisfactory evidence of the existence of the facts on which the allegation of nullity is founded. This last provision was absolutely necessary to guard against fraud and collusion in such cases, and is strictly in accordance with the requirements of the ecclesiastical or canon law. (The 105th canon, after reciting that matrimonial causes required the greatest caution where the marriage was sought to be dissolved or annulled upon any suggestion or pretext whatever, concludes as follows : “ We do strictly charge and enjoin, that in all proceedings to divorce and nullities of matrimony, good circumspection and advice be used ; and that the truth, as far as is possible, be sifted out by the depositions of witnesses and other lawful proofs and evictions; and that credit be not given to the sole confessions of the parties themselves, howsoever taken upon oath, either within or without the court.” The revised statutes also provide that suits to annul a marriage shall be by bill, and shall be couducted in the same manner as other suits prosecuted in courts of equity ; and that the court shall have the same power to award issues, to decree costs, and to enforce its decrees, as in other cases. (2 R. S. 144, § 35.) But as the awarding of a feigned issue, to ascertain the fact of the physical incapacity of the defendant, would, from the very nature of the investigation to be had, and the evidence necessary to ascertain the fact, be an impracticable as well as an inexpedient mode of proceeding, such cases are very properly excepted from the general provision of the statute requiring all issues upon the legality of a marriage to be tried by a jury of the country. (2 R. S. 175, § 45.) When the legislature conferred this branch of its jurisdiction upon the court of chancery, it was not intended to adopt a different principle from that which had theretofore existed in England, and indeed in all Christian countries, as to the nature and extent of the physical incapacity which would deprive one of the parties of the power to contract matrimony. And the court is, by necessary implication, armed with all the usual powers which, in that country from which our laws are principally derived, are deemed requisite to ascertain the fact of incapacity, and without which it would be impossible for any court to exercise such a jurisdiction. It becomes necessary, therefore, to inquire) in the first place, as to the nature and extent of the incapacity which will authorize the court to decree the marriage contract a nullity, and then to determine what proof is necessary, or should be required, to establish the fact of such incapacity.

By the English law, as it existed at the first settlement of this country, and as it now exists, to authorize a sentence of nullity on the ground of impotence, it is necessary for the complainant to establish the fact of the existence of the alleged incapacity at the time of the marriage, and that such incapacity still continues and is incurable. (See 1 Chitty’s Med. Jurisp. 375; Law of Husb. & Wife, 16; Brown v. Brown, 1 Hagg. Eccl. Rep. 523 ; Welde v. Welde, 2 Lee’s Eccl. Ca. 580.) This also appears to be the law of France, and of Spain, and Holland. And it' is probably the law of the continent of Europe generally. (See 1 Beck’s Med. Jurisp. 5th ed. 68; 4 Partida, tit. 8, Law, 2; Van Leeuw. Com. 87.) And such is the construction which I feel myself bound to put upon the statute of this state, authorizing this court to decree the nullity of a marriage contract, on account of the physical incapacity of the defendant to consummate the marriage.

Impotence on the part of the female, which cannot be cured by proper medical treatment or a surgical operation, is a case of very rare occurrence, f And the cases of this kind which will be likely to come before this court for adjudication, on the complaint of the husband, will be limited to cases of an impervious, or supposed impervious vagina, from an original malformation, or the effect of some supervening infirmity or disease, as mere sterility can in no case form a sufficient ground for a decree of nullity. Doctor Beck, in the last edition of his very learned and most valuable work on the subject of medical jurisprudence, after an elaborate examination of the various cases of absolute and temporary incapacity for sexual intercourse, in both sexes, which have been noted or referred to by medical writers, and others, arrives at the conclusion, from a review of the causes of such incapacity, that the cases of absolute or incurable impotence are very few, and are generally palpable to the senses, and that the number of cases which were formerly assigned to that class has been greatly reduced by the improvements in surgery. (1 Beck’s Med. Jurisp. 89.) In every case of this kind, therefore, it is necessary that the court should proceed with the greatest vigilance and care, not only to prevent fraud and collusion by the parties, but also to guard against an honest mistake under which they may be acting, merely from the want of proper medical advice and assistance. From the very nature of the case, it appears to be impossible to ascertain the fact of incurable impotence, especially where the husband is the complaining party, except by a proper surgical examination by skilful and competent surgeons, in connection with other testimony. And if the allegations in the bill have neither been admitted or denied by an answer on oath, in the usual manner, the defendant should be examined on oath before the master as to the truth of those allegations. This appears to be the ordinary course of proceedings in such cases at Doctors’ Commons. (See Poynter's Mar. & Div. 126, note.) And I have no doubt as to the power of- this court to compel the parties, in such a suit, to submit to a surgical examina» tian, whenever it is necessary to ascertain facto which are es« sential to the proper decision of the cause, j But a lady will not be compelled to submit to a further examination, wjien appears that she has already submitted herself to the examination of competent surgeons, whose testimony can be readily obtained. (See 1 Hagg. Eccl. Rep. 524, note.) Investigations of this kind are always indelicate, and the mode of proof to which resort must of necessity be had, must frequently be very distressing to the feelings of parties. It would, therefore, in most cases, be better that the party complaining should submit to a disappointment, and by an amicable arrangement agree to separate, rather than to bring the cause before a court for its decision thereon. This court, however, is not at liberty to decline jurisdiction in such a case, but must proceed to the examination and decision thereof in the manner required by law, if the injured party thinks proper to insist upon his legal rights.

There must be a reference to a master to take proof of the facts and circumstances stated in the complainant’s bill; and particularly, the master must inquire and report whether the defendant, at the time of the solemnization of the marriage With the complainant, was physically incapable of entering into the marriage state, and 'whether she is still virgo intacta, and incapable of consummating the marriage contract, by reason of her own incurable impotence. The order of reference must also direct that the master examine the defendant on oath as to the several matters alleged in the bill, and that the defendant submit herself to such surgical examinations, and examination by matrons, as the master may think proper to direct, for the purpose of ascertaining the fact of the alleged impotence; but that no person shall be present at such examinations, except the surgeons and matrons who may be selected by the master for that purpose, unless With her consent; and that in the selection of surgeons and matrons for that purpose, the master have a due regard to the feelings and wishes of the defendant. The master is also to be directed to return the proofs, taken before him, in a schedule to his report. No person is permitted to be present before the master, on the reference, except the parties and their counsel, and witnesses; and such of the friends of either of the parties, as they, or either of them, may request to attend on the reference. And the complainant, under the direction of the master, must furnish the necessary funds to pay the expenses of the surgical examination of the defendant, if a sufficient and satisfactory examination-has not already been made.


text:
    In the matter of Van Schoonhoven and others.
    Where one of three persons appointed, by a will, trustees of an express trust, refused to accept the trust, and executed a formal renunciation thereof, and after the death of one of the acting trustees, the survivor applied to the chancellor to restore such renouncing trustee to the trust, which he was then willing to assume, in conjunction with such survivor; Held, that the court had no authority to restore such renouncing trustee to the trust, or to appoint him a new trustee in conjunction with the survivor, who had originally assumed to act as one of the trustees.
    The revised statutes only authorize the court of chancery to appoint a new trustee in the-place of one who is removed by the court, or whose resignation is accepted after he has assumed the trust; or in case of the death of a sole surviving trustee, so that there is no one loft to execute the trust.
    Where one of the persons appointed trustees of an express trust refuses to accept such trust, and executes a formal renunciation thereof he cannot afterwards accept and execute the trust, except it be under a new appointment as trustee.
    The petition in this case stated that Maria Schuyler, who died in 1832, by her will, appointed J. Van Schoonhoven, T. M’Coun and A. Craig trustees of her estate, upon certain trusts therein specified, and that the two first accepted the trust; that Craig refused, and by a formal instrument in writing renounced the execution and acceptance of the trust. The petitioners further stated, that M’Coun, one of the trustees, had since died, and that Craig, at the solicitation of the surviving trustee and of the person principally interested as the cestui que trust, had consented and was now willing to accept and execute the' trust, in conjunction with the surviving trustee. They therefore prayed that Craig might, by the order and appointment of the court of chancery, be reinstated as trustee under the will, with all such powers and responsibilities as he would have originally possessed and assumed8 under the will, if he had not renounced the trust.

      J. Rhoades, for the petitioner.
   The Chancellor.

It has frequently been decided by this court, that if one of two or more joint trustees, appointed by deed or will, refuses to accept the trust and execute the same, the whole of the trust estate vests in the other trustees who accept the trust. And where the trustee thus refusing, executes a formal renunciation of the trust, he cannot afterwards accept and execute the trust, unless it be under a new appointment as trustee. In this case, the whole of the trust property was, by the renunciation of Craig, irrevocably vested in Van Schoonhoven and M’Coun, his co-trusteés; and upon the death of the latter, it became vested in Van Schoonhoven solely, as the surviving trustee. This court has, therefore, no power or authority to change the legal effect of the renunciation of Craig, and to restore him to the trust. The power which is given to this court to appoint a new trustee of an express trust, by the provisions of the revised statutes, does not extend to a case like the present. The sixty-eighth section of the article relative to uses and trusts, (1 R. S. 730,) only authorizes the appointment of a new trustee where the only surviving trustee happens to die, so that there is no one left to execute the trust. And the seventy-first section merely authorizes the court to appoint a new trustee in the place of one who is removed by the court, or whose resignation is accepted after he has once assumed the trust.

As the court has no power or authority to restore Dr. Craig to the trust which he has renounced, or to appoint him a trustee, so long as one of the trustees who originally accepted the trust continues to act as such, the petition must be dismissed.


text:
    Giddings & Coleman vs. Eastman and wife.
    Where an attorney, who was employed to collect or foreclose a mortgage, instead of foreclosing the same, took a conveyance of the equity of redemption to himself, instead of his clients; Held, that he took the legal title osa trustee for his clients, and that upon his death the legal estate descended to his heirs at law charged with the" trust, and that the clients were entitled to a conveyance from the heirs, upon the repayment of the amount paid by the attorney for the equity of redemption, and the amount due for his services, and the value of the improvements made upon the premises by the heirs before they had notice uf the existence of the trust. Held -also that one of the heirs, who had purchased and paid for the shares of the other heirs in the trust premises, before he had any notice of the trust, was entitled to hold the shares thus conveyed to him, discharged of the trust, and that the cestuis que trust must look to the heirs who sold such shares, for the purchase money received by them on the sale.
    Where several heirs or devisees are turned into trustees by construction, as to lands devised or descended to them, hut without any actual orconstruciive notice of the existence of the -trust, one of such heirs or devisees may become a bona fide purchaser of the shares of his co-heirs,-or co-devisees, so as to entitle him to hold their shares of the land discharged of the trust, although the -other share, which he held with them as a tenant in common, ^remains subject to the trust
    This was an appeal from a decree of a vice chancellor. The bill, which was filed in 1827, in the equity court of the •eighth circuit, alleged that on the 10th of December, 1804, B. Van Norman gave to the complainants four promissory notes, of $150 each, payable on demand, with interest, and that on the 4th of April thereafter, to secure the payment of these notes, he mortgaged to the complainants a lot of land in Batavia, containing two acres, which mortgage, in 1807, was recorded in the book of deeds in Genesee county; that, in 1808, Van Norman conveyed the mortgaged premises to J» Hickcox, excepting a small portion thereof which had been previously conveyed to D. B. Brown; that Hickcox, at the time of the conveyance to him, had notice of the complainants’ mortgage; that the complainants afterwards delivered their mortgage to C. Blanchard, an attorney, residing at Batavia, to collect or foreclose, who informed Hickcox thereof, and proposed to him to take a release of the equity of redemption, and to pay him $20 for such release, "instead of foreclosing the mortgage • to which proposition Hickcox assented, and in November, 1810, conveyed the mortgaged premises to Blanchard, except the portion thereof which had been previously conveyed to Brown; which conveyance was taken by Blanchard in his own name, but for the sole use and benefit of the complainants; that Blanchard died in April, 1811, intestate., and without issue, leaving his sister Abigail, the wife of the defendant J. F. Eastman, and four other sisters, his heirs at law; that after the death of Blanchard, Eastman administered onr his estate and became possessed of his papers, among which was the mortgage of the complainants; and that be had been in the receipt of the rents and profits of the premises, and had procured releases from the sisters of his wife of their interest in the premises. And the complainants prayed that the defendants might be decreed to release and convey the premises to them, or pay the money due to them upon the mortgage, with interest; and for general relief. The defendants, by their answers, denied all knowledge of the execution or existence of the notes, or of the mortgage to the complainants, except from the copy of the mortgage contained in the book of deeds, which did not appear to have been either acknowledged or proved, so as to entitle it to be recorded; and from which copy it did not appear when the notes were payable, or whether they were on interest. The defendant J. F„ Eastman admitted that he was informed of the record, m the book of deeds, as early as 1813, but that as the complainants and Van Norman had then left the state, and as he was unacquainted with their places of residence, he had no means of ascertaining whether there was any thing due on the mortgage; and he denied that any mortgage was found among the papers of Blanchard. He also admitted that Van Norman conveyed to Hickcox, as stated in the bill; that Hick-cox paid a part of the consideration down, and gave a bond and mortgage to Van Norman for $300, the residue of the purchase money; and that at the time of that conveyance Hickcox, was entirely ignorant of the existence of the alleged mortgage to the complainant. He also admitted the conveyance from Hickcox to Blanchard, but denied all knowledge or information that it was given to Blanchard as the attorney or itrastee for the complainants; and he alleged that he purchased the rights of the other heirs at law of Blanchard, and paid them therefor, and took conveyances from them, in good faith, under a belief that they were the legal and true owners thereof, without any notice of the trust, or of the equitable claims of the complainants as set up by them in their bill. He also Insisted that if the mortgage and notes ever were executed as alleged in the bill, from the great length of time which had elapsed, they must be presumed to be paid. The cause was heard before the vice chancellor upon the pleadings and proofs, and he decreed that the conveyance from Hickcox to Blanchard was a conveyance of the equity of redemption of the mortgage given to the complainants, and was accepted and received by him as their attorney and agent, for their use and benefit, in satisfaction of the mortgage; and that'1 he thereby became seized of the premises in trust for them, and remained so seized at the time of his death ; that the defendants still held the one-fifth of the premises, which descended to Abigail Eastman, in trust for the complainant; that they should convey that fifth of the premises to the complainants, and account to them for the rents and profits- thereof from the death of Blanchard; the complainants paying one-fifth of the taxes, and of the permanent improvements upon the premises since the death of Blanchard ; and that Eastman was entitled to the other four-fifths of the premises as purchaser. A reference was directed, to take the account accordingly. From this decree the complainants appealed.
    The following opinion was delivered by the vice chancellor at the time of making the decree appealed from :
    Gardner, Y. C. If any credit is to be attached to the declarations and acts of Blanchard, the relation of attorney and client, between him and the complainants, is unquestionably established by the proofs in the cause. The witness Hickcox states that he held a conversation with Blanchard, at Avon, upon the subject of the complainants’ mortgage; that he wrote to the complainants, requesting them to foreclose their mortgage; and that BIancbard_superscribed the letter, and, as the witness believes, was acquainted with its contents'. We then learn, from Brown, that Blanchard informed his brother that he had got the mortgage of the complainants to foreclose, but that there was a difficulty in the record which would prevent a foreclosure under the statute; and that after consultation, it was decided that Blanchard should take a release from Hickcox, or foreclose in chancery. Hickcox then testifies that he was applied to by Blanchard, who informed him he was employed to foreclose the mortgage, and wished to obtain a release, as the better method for them both; and that a deed, for the consideration of twenty dollars, was accordingly executed by the witness to Blanchard. No reasonable doubt can remain, after this testimony, of the retainer of Blanchard. It follows, then, as a probable consequence, that he received the mortgage to enable him to effect the foreclosure. Such would be the ordinary course of proceeding; and this inference is strongly confirmed by the direct testimony of Brown, and the better recollection of Hickcox as to the declaration of Blanchard to him at the time of the application for the release. If Blanchard received the mortgage, then its non-production is sufficiently accounted for. The defendant, who, since the decease of Blanchard, has had the custody of his papers, says, in his answer, that after diligent search, no such paper can be discovered. This is prima facie evidence of the loss of the instrument, and consequently will authorize the admission of secondary evidence as to its contents. The execution of the mortgage, and its contents, are established by the depositions of the subscribing witness and the mortgagor, and by Stevens, the clerk of the county of Genesee. The declarations of the parties, at the time of the execution of the mortgage, as to the purpose for which it was made and the land to be included therein, are admissible for the purpose of identifying the instrument, as the witness was not required to, and did not in fact, peruse the mortgage. And the original mortgage being lost, this evidence is pertinent to show that the record from the clerk’s office is a true copy of such mortgage. But this is by no means the only evidence upon that subject. The deposition of the mortgagor is full upon this point; and, in addition, we have the statement of Blanchard that there was a record of the mortgage in question, but that there was a difficulty about it which would prevent a foreclosure under the statute. By reference to the deposition of the clerk, it will be ascertained that the record was a true copy of the original mortgage, and that the difficulty, to which Blanchard must have alluded, was the want of a certificate of acknowledgment, and the fact that the mortgage was recorded in the book of deeds. On the whole, I am of the opinion that the proof of the execution of the mortgage and its contents is reasonably sufficient. The retainer of Blanchard, by the complainants, being established, and he having taken a release of the equity of redemption to himself, as he declared to Hickcox, as the shortest method of effecting the objects of a foreclosure, he is to be deemed a trustee, and, at the election of the complainants, was bound to convey the land in question to them, and to account for the rents and profits,
    Bui it is contended by the defendants, that the complainants have elected to disaffirm the trust, and that their application to Van Norman, in 1814, receiving a partial payment, and taking new notes for their several proportions of the mortgage debt, is conclusive evidence of their determination upon this point. There could be no question of the truth of this proposition, if it could be shown that the complainants, at (he period alluded to, had any knowledge of the acts of Blanchard. But an election necessarily presupposes some knowledge of the facts upon which that election is predicated ; and no such knowledge is proved in the present instance, Blanchard received the deed of Hickcox on the 5th of November, 1810, and died in 1811; and there is no evidence, nor is it pretended, that he communicated his proceedings to the complainants. His personal representative denies all knowledge of the trust, or of the facts from which it is to be inferred; insisting that the first suggestion of the kind was made by Brown shortly before the filing of the bill. They knew nothing, and of course could not apprise the complainants of their rights; and so far as appears from the proofs, no persons, directly or indirectly connected with Blanchard, have taken any steps since his death, even to put the complainants upon inquiry. The complainants were residents of another state; and receiving no advices from Blanchard, and probably hearing of his death, it is not singular, and certainly ought not to be construed as a waiver of their rights as against him or his heirs, that they should have resorted to the mortgagor for payment. I do not perceive the force of the objection, that the receipt of the new notes was a severance of the debt. The complainants continued to have a common interest in the security; and that the mortgage was not intended to be affected by the arrangement, is manifest from the declaration of the mortgagor, at the time, that he was poor, and they must look to their mortgage and to the land for the residue of their debt.
    Another branch of the defence is, that the defendant Eastman, as to four fifths of the premises, is a bona fide purchaser for a valuable consideration, and without notice. All notice of the trust is unequivocally denied in the answer. The defendant has set forth and proved conveyances from four of the five heirs at law for a valuable, and, so far as I can discover-, an adequate consideration actually paid. The only question therefore is, whether the facts admitted in the answer-, or established by the proofs, were sufficient notice to him to put him upon inquiry. Assuming that Eastman, as early as 1813, had notice of the mortgage and that it had been given to secure the payment of notes dated some years prior to that time, he might reasonably presume that they were paid, before the date of his purchase in 1819 ; and notice of the mortgage was not a constructive notice of the trust. The presumption from the conveyance of Hickcox to Blanchard would be, that the latter took the title for his own benefit, and not in trust for another; and this presumption would be the same, whether there were a valid outstanding mortgage or not. In the one case Blanchard would take the land subject to, and in the other discharged of the encumbrance; but in neither case would the conveyance or mortgage furnish notice of any trust, indeed, I have not been able to discover any thing in the answer, or the evidence, which in my judgment ought to have the effect of depriving this defendant of the protection due to a purchaser in good faith. On the contrary,, the conveyance from Hickcox, his bond and mortgage found among the papers of Blanchard, and the non-claim of the complainants for so many years, were all calculated not only to quiet suspicion, but to induce the belief that Blanchard held the entire title to the property in question.
    I am not called upon to determine what would have been the rights of the defendants, in case a foreclosure had been sought by the bill. The bill is framed for no such purpose. It has not the requisite parties, and the only legitimate relief must be founded upon the establishment of the trust alleged in the bill.

      J. 0. Spencer, for the complainants.
    There is sufficient proof to let in paroi evidence of the contents of the mortgage of Benjamin Van Norman to the complainants; and the execution of the mortgage and its contents are sufficiently established against the defendants. The mortgage was placed in the hands of Blanchard for collection, and he received the deed from Hickcox in pursuance of his employment. He therefore received it as trustee for the complainants, if they choose to affirm the trust. Neither has there been any waiver, election, or discharge by the complainants, by which the trust has become extinguished.
    The land descended to the heirs of Blanchard* charged with the trust; and they had no estate which was the subject of a conveyance by them. The defendant J. F. Eastman is not to be protected as a purchaser, for a valuable consideration* in good faith and without notice, of the undivided interests which he purchased of some of the heirs of Blanchard. Being a trustee, in right of his wife, of an undivided fifth part of the premises, any purchase which he made of the remaining undivided shares, enured to the benefit of the cestuis que trust j and notice of the trust was not necessary to charge him. He has not sufficiently denied all circumstances from which notice of the trust could be inferred ; and there is evidence, in his answer, of sufficient to have put him on inquiry. At all events Eastman and his wife are trustees for the complainants, of one-fifth of the premises, and must account for that proportion of the rents and profits, after deducting all just allowances» And if Eastman is not chargeable for the four-fifths of thé premises which he purchased of the heirs at law of Blanchard, in the character of a trustee, he is liable as purchaser of that portion of the premises, to pay and satisfy a proportionate part of the amount which the mortgage of Van Norman was given to secure. Under this bill the complainants may have that species of relief for the proportion specified. All those persons whom the complainants were bound to make parties for such relief, are parties. The defendant Eastman cannot avail himself of the statute of limitations, as neither the statute, nor any analogous rule of equity applies to the case. He had such notice of the mortgage to the complainants as dispensed with its registry. He cannot avail himself of Hickcox’s want •of notice of that mortgage ; and if he could, there is abundant evidence of a notice to charge him.
    There may be a decree affirming that part of the vice chancellor’s decree which declares Eastman and wife to be trustees of one-fifth; and referring it to a master to ascertain the value of that fifth at the time of the conveyance to Blanchard, and if not sufficient to satisfy the residue then due on the complainants’ mortgage, the defendant J. F. Eastman should be compelled to pay that balance, with interest, by a day to be appointed; and if not paid, then the other four-fifths should he sold by a master.

      F. M. Haight, for the defendants.
    The record of the mortgage to the complainants, is no evidence of any mortgage having been executed. The record is not admissible for any purpose; and there is no legal evidence of the execution of the mortgage stated in the bill. There is no proof of the loss of the mortgage; and without such evidence it must be produced. At least we should have the notes. The evidence does not make out a trust by implication, in the intestate, Blanchard ; and if any such trust existed, it has been waived or discharged. A court of equity, under the circumstances of this case, will presume such waiver and discharge. As to four-fifths of the premises, the respondent is a bona fide purchaser without notice of the trust. And the complainants were not entitled to a decree for the mortgage money against the defendants, or to a foreclosure of the mortgage, on the •pleadings and proofs in the cause.
   The Chancellor.

The question does not properly arise, on this appeal, whether Blanchard took the conveyance from Hickcox as the attorney and agent of the complainants. It is very evident, however, that such was the legal result of the transaction proved in this case-. In reference to this question, it is perfectly immaterial whether there was legal proof of the actual execution of the mortgage, a copy of which was inserted in the book of deeds, or whether Blanchard had the original mortgage in his possession at the time he took the conveyance of the equity of redemption to himself It was sufficient that the complainants claimed to be the holders and owners of such a mortgage as was copied into the book of deeds, and that Blanchard, as their attorney, undertook to collect or foreclose It for them. It is doubtful, from the testimony, whether he ever had the original mortgage in his possession, as it was not found among his papers at the time of his death, andas the notes are proved to have been in the hands of the complainants, in Virginia, subsequent to that timé. The declarations of Blanchard, that he had got the mortgage to foreclose, may well bs satisfied by supposing that he had gotten directions to foreclose the mortgage, which they probably supposed, from the application which was made to them for authority to foreclose it, was properly acknowledged and recorded in the clerk’s office of the county. But whether he had possession of the original mortgage or not, the testimony is sufficient to shew that he professed to deal with Hickcox in the character of attorney for the complainants, and that except in that character he would not have been enabled to obtain the release of the equity of redemption, to prevent the costs and expense of a foreclosure'» it is not necessary to presume, in this case, that Blanchard had any intention of defrauding his clients. He had a lien, for the $>20 which he paid to obtain the release from Hickcox; and for his services in transacting the business; and he probably took the release in his own name to secure that lien until he could see his clients and settle with them, they at that time residing out of the state. And his death, a few months afterwards, prevented his clients from obtaining the necessary information as to what had been done; and left the legal title in the heirs at law, charged with the trust, although both they and the complainants were ignorant of the fact at that time.

I find nothing in the answer of Eastman, or in the evidence in this case, which can deprive him of the character of a bona fide purchaser of the rights of the four sisters of Bis wife, without notice, either actual or constructive, that Blanchard, at his death, held the premises in the character of trustee for the complainants. Eastman resided in a distant part of the country, at the death of his brother-in-law; and when he went to Batavia to inquire into the state of the property which was left,Be found an absolute conveyance from Hicbcox for this lot, which was pointed out to him as the property of Blanchard. And there was nothing upon the face of that conveyance which could have induced him to suspect that it was a conveyance in trust, for the complainants or any other person. The copy of the mortgage, irregularly recorded in the book of deeds, was pointed out to him a year or two afterwards, and was good constructive notice to him of the existence of such a mortgage, if it had actually been given; but it was not even a constructive notice to him that the deed from Hick-cox to Blanchard was taken by the latter as attorney and trustee for the mortgagees. If it was a valid and subsisting mortgage against the land, then Eastman purchased with notice of the complainants’ rights as mortgagees merely, but not of the right which they now claim by virtue of the trust upon which the conveyance to Blanchard was taken.

It is insisted, however, by the complainants’ counsel, that as Eastman and wife held an undivided share of the premises, in right of the wife, as one of the heirs at law of Blanchard, charged with the trust, although they were both ignorant of the fact that any such trust existed, it was impossible for Eastman to become a bona fide purchaser of the undivided shares of the other four heirs at law. This position cannot be sustained upon any principle of equity. The cases referred to by the complainants’ counsel, upon this point, are cases in which a trustee holding the estate for another has taken advantage of his situation to purchase in an outstanding title, or to secure some advantage which, in equity, it was his duty to purchase or secure for the benefit of his cestui que trust; or where, from the situation of the purchaser in reference to others, it might be presumed he intended to make the purchase for his and their joint benefit. But where one devisee or heir at law is by construction turned into a trustee, without any knowledge on his part that he is such trustee, or of the facts which make him a trustee constructively, it appears to be impossible to hold that he may not be a bona fide purchaser of the undivided share of another tenant in common in the same property, as to which he is equally ignorant that any trust exists. The conclusion of the vice chancellor was therefore right, that Eastman acquired a valid title to four fifths of the premises, by purchase from the heirs, and that he now holds that portion of the premises, discharged of the trust which attached to it in the hands of the heirs.

It is very doubtful whether the complainants can elect to consider the conveyance to Blanchard as a purchase of the equity of redemption, for their use and benefit, for one purpose, and at the same time to consider him or his heirs, or the purchaser under them, as the legal owner, subject to the mortgage, for another purpose. I am inclined to think that, if they consider and elect to treat it as an extinguishment of the equity of redemption, for their use and benefit, as to the fifth of the premises which has descended to Mrs. Eastman, for the purpose of obtaining from the defendants a conveyance of that share, they must elect to consider it so in ioto, and look to the heirs, who have conveyed to Eastman, for their shares of the purchase money received on their sales.

Even if a foreclosure of the mortgage had been sought by the bill, it could not have been had upon the proofs in this case, as there is no legal evidence of the existence of such a mortgage as is described in the complainants’ bill. If it was perfectly clear that the mortgage was actually in the possession of Blanchard at the time of his death, its loss might be presumed ; as it appears by the answer of Eastman that it was not found among his papers. And the copy of the mortgage entered upon the book of deeds, in connection with the testimony as to its execution, would, in that case, be good secondary evidence of its original existence and contents. The bill alleges that all the notes were payable on demand, with interest from their date, and that the mortgage was gnft en to secure the payment of such notes. The copy of the mortgage on record, however, does not show when the notes Were made payable, or whether they were upon interest or not. And as this was a material allegation in" the bill, and was put in issue by the answer, it was necessary that the complainants should sustain it by proof, before they could be entitled to a decree of foreclosure. Van Norman says he does not know whether his notes to Coleman and Giddings were due when he went to the south to reside, in 1809, but that some years afterwards, one of the complainants brought the notes to him, in the state of Virginia, when he made a payment thereon, and gave new notes for the balance. And from the whole of his testimony, I think it is fairly inferrible that the four notes were not all payable on demand, as stated in the bill, and that the mortgage was not given to secure such potes as are there described. The complainants should, at least, have given in evidence the new notes of Van Norman, to show whether they were payable at the time of filing their bill, and the amount that was still due upon the mortgage. The vice chancellor was. therefore right in not decreeing a, foreclosure.

The decree appealed from is affirmed, with costs; and th§ proceedings are to be remitted to the vice chancellor,


text:
    Miller vs. Philip.
    Where a testator, after devising all his real estate to his son, charged with the support of his wife, directed that his son should, at the expiration of three years from the date of his the testator’s decease, or the decease of his wife, pay certain sums for the lands which the testator had given him, and the widow of the testator survived him more than three years and then died; It was held that the legacies were payable immediately upon her death.
    This was an appeal from a decree of the vice chancellor of the third circuit; and the only question in controversy between the parties was whether a legacy given to the complainant by the will of her father, was payable on the death of her mother, who survived the father about six years, or at the expiration of three years after the mother’s death. The testator devised all his real estate to his son, the defendants charged with the support of his mother, and with the payment of several legacies; among which was the legacy for which this suit was brought. The clause of the will in which the legacies were given, and upon which the question in dispute between the parties arose, was as follows : “ I order that my son Wilhelmus shall, at the expiration of three years from the date of my decease, or the decease of my beloved wife Catharine, pay the following sums of money for the lands I have given him, viz : To the heirs of my son Jacob the sum of $841,25,” &e. The vice chancellor decided that as the widow died more than three years after the death of the testator, the legacy to the complainant was payable immediately upon her death ; and he decreed accordingly. From this decree the defendant appealed to the chancellor.
    JS. L. Jordan, for the complainant,

      Killian Miller, for the defendant.
   The Chancellor.

This is a mere question of construction, as to what the testator intended by the expression “ at the expiration of three years from the date of my decease, or the decease of my beloved wife,9’ And I think the construetian which the vice chancellor has given to this clause of the will is as favorable to the defendant as the language of the will can bear. It is very evident to my mind that the testator has not, by mistake, substituted or for and in this case ; and I must arrive at such a conclusion before I can give a construction to the will which would postpone the payment of the legacies until the expiration of three years after the death of both the testator and his wife. He either intended to make the legacies payable in three years after his own death, and sooner if his wife should happen to die before that time ; or he intended to make them payable on the death of the wife, if she survived beyond the three years, so that they should not be payable, in any event, within three years after his own decease. This last is the construction adopted by the vice chancellor; and I think, upon the whole, it is the correct one. It is evident that the testator contemplated the event of his xvife’s surviving him, as he has carefully provided for her in the will. He therefere- intended to give his son three years after his oxvn decease, to raise and pay off these legacies; and also to suspend the payment beyond that period, so long as the support of the widow continued to be a partial charge on the estate, upon which these legacies were also charged. And, for this purpose, it is only necessary to insert the word on in the clause of the will in question, to make it perfectly intelligible. It would then read, “ I order that my son Wilhelm us shall, at the expiration of three years from the date of my decease, or on the decease of my beloved wife Catharine, pay,” &c. The effect of xvhich would be to postpone the payment until the death of the widow, if she lived beyond the three years, which the testator intended, in any event, to give to the devisee of the real estate for the payment of these legacies.

As the vice chancellor has put the proper construction upon the will, his decree must be affirmed, with costs.