text:
    Bowen and others vs. Idley.
    Where a bill is filed by the heirs at law against the devisee in possession, to set aside a will of real estate, on the ground of the testator’s incapacity, or that the devise was the result of undue influence, it will be a valid objection, upon demurrer to the bill, that the complainants have a perfect remedy at law, and that the court of chancery has no jurisdiction of the case.
    But devisees claiming the estate, or an interest therein, under a will which is alleged to have been fraudulently destroyed, may file a bill to establish' the will, and to set aside as invalid a subsequent will which purports to make a different disposition of the property. And in such suit, the devisee in the last will, as well as the heirs at law, are proper parties.
    Where a complainant amends his bill after answer, it is a matter of right for the defendant to put in a new or a further answer to the amended bill; except where the amendment is a mere matter of form which cannot vary the rights of the defendant. But, in the answer to an amended bill it is not allowable to repeat the allegations in the former answer, unless the grounds of the suit and the defence to the same are varied in substance.
    Where a cause has been heard upon pleadings and proofs and a decretal order made therein, which order has been affirmed upon an appeal, the court below has no authority to allow the bill to be amended by striking out the name of one of the complainants, who is an infant, and making her a party defendant, without the consent of the original defendant in the suit.
    1836. April 5.
    After the witnesses in a cause have been examined and the proofs closed, no amendment of the bill is allowed, except an amendment which is merely formal; and that under very special circumstances. In that stage of the suit, if it becomes necessary to add new parties who will have a right to examine witnesses in their defence, the proper course is to bring such new defendants before the court by a supplemental bill.
    This was an appeal from an order of the vice chancellor of the first circuit. The bill was filed by George Bowen, in behalf of himself and wife, and as the next friend of Mary Ann Idley an infant, to set aside a will made by the father of the infant, and to establish a previous will which the complainants alleged had been fraudulently destroyed. The cause was heard before the vice chancellor upon pleadings and' proofs; and the defendant, among other objections, insisted that the infant complainant was interested in sustaining the last will, and should not have been joined with Bowen and his wife as a party complainant. The vice chancellor made a decretal order, however, awarding a feigned issue to determine the question as to the validity of each of the wills, and whether the first will was revoked by the testator. From this decretal order the defendant appealed. The decision of the vice chancellor was affirmed, so far as it affected the rights of the defendant; and the appeal, so far as it sought to protect the rights of the infant complainant, was dismissed, without prejudice to the right of any person to apply, in behalf of the infant, for a reference to inquire whether it was for her interest that the suit should be further prosecuted in her name as one of the complainants. This decision was afterwards affirmed by the court for the correction of errors. [See the case more fully stated in IliZi Wendell’s Reports, 227.] A reference was afterwards ordered, by the vice chancellor, and the master reported that it was not for the interest of' the infant complainant that the suit should be prosecuted in her name ; it being proved before him that Mrs. B. was not entitled to any share of the testator’s estate if neither of the wills should be sustained. Bowen and wife thereupon applied to the vice chancellor for leave to amend their bill, by striking out the name of the infant as a complainant and making her a defendant in the suit, with such proper alterations as might be requisite for that purpose; that all the orders and proceedings in the cause might be corrected, in conformity with such amendment; that the answer of the defendant to the original bill might be ordered to stand as an answer to the amended bill; and that the testimony which had been taken in the cause might stand in full force against the defendant Elizabeth Idley, in the same manner as if the same had been taken under the amended bill. Affidavits were read in opposition to the application, to show that Bowen was aware of the existence of the facts, on which the master’s decision was founded, before the filing of the bill; and also that the defendant was advised by counsel that if the amendment prevailed the bill could be successfully demurred to, although the defendant could not have sustained a demurrer to the bill while the infant was one of the complainants. The vice chancellor granted the application, substantially as asked for by the petitioners; and authorized the insertion of an allegation in the bill that Mary Ann Idley, the new defendant, claimed and had some interest in the estate of her father, Joseph Idley, deceased, as a devisee or an heir at law. From this decision of the vice chancellor the defendant appealed ; and in her notice of appeal, which was general as to the whole order, she particularly objected to that part of the order which precluded her from putting in an answer to the amended bill.

      C. O. Connor, for the appellant.

      D. S. Jones & P. A. Jay, for the respondent.
   The Chancellor.

I do not see any thing in the conduct of Bowen, in instituting this suit in the name of the infant as one of the complainants, which ought to preclude him from having the amendment asked for in this case, if it was proper in other respects; although at the time of filing the bill, he was aware of the fact that his wife was not an heir at law of the testator. He does not allege in his bill that she was an heir, but only mentions her incidentally, as a child of the testator; which was true in point of fact. The object of the bill was not to claim any thing in favor of either of the complainants as heirs at law; but to set aside the last will and establish the first, which, at the time of filing his bill, he might have honestly supposed was more beneficial to the infant complainant than the other. Although the defendant had voluntarily supported the infant complainant, she was under no legal obligation to do so until she made the offer to that effect in her answer; and it was doubtful whether the remainder in the whole property after the death of the widow, would be more beneficial to the infant than a remainder in one half after that time, and a support out of the income of the property dur'ing the continuance of the life estate of the widow.

I am inclined to think there is no foundation for the supposition that the bill, as amended, would be liable to the objection that Mrs. Idley was not a "proper party thereto. It is true she has no interest in supporting the last will in preference to the first, since her voluntary offer to maintain and educate the infant. But she is charged in the bill with having fraudulently destroyed the first will, which the complainants are seeking to establish; and she appears to be a necessary party to a suit by Bowen and his wife to establish that will as against the heir at law of the testator. If the devisee was in possession, and the complainants were the heirs at law, and were seeking to set aside the last will on the ground of the testator’s incapacity, or that it was executed under improper influence, and thus to leave the estate to descend to them as in case of intestacy, it would be a valid objection, upon demurrer to either the original or the amended bill, that the complainants had a vy” boi remedy at law, and that this court had no jurisdir statutes, had jurisdicü of real estate, which w either during the life of his knowledge or consent ’ the cane. (Colton v. Ross, 2 Paige's Rep. 396.) court, even before the revised 'it brought to establish a will d been fraudulently destroyed, -.estator or afterwards, without -- r where he was mentally ineapable of consenting. And the jurisdiction of the court is now extended, by statute, to the case of a will of personal estate. (2 R. S. 67, § 63.) That part of the bill which seeks to set aside the last will might still be demurred to, if the question as to the validity of that will was not directly connected with the establishment of the first. But if that will is valid, it is a revocation of the first; and the complainants cannot succeed in their suit to establish the first will, even if they show that it was improperly destroyed without the knowledge or consent of the.testator. The part of this case, therefore, over which this court has an unquestionable jurisdiction, necessarily draws to it the decision of the question as to the validity of the last will. The defendant, however, in her answer, may insist that the first will was destroyed by the testator, or with his assent; and may then object to the jurisdiction of the court to decide upon the question of the validity of the last will, as between her and the heir at law. And in that case, if the complainants do not succeed in establishing the fact that the first will was illegally destroyed, their bill must be dismissed, without awarding an issue to determine the validity of the last will as between Mrs. Idley and her co-defendant; leaving the heir of the decedent to her remedy at law, by action of ejectment. This could not be done as the cause stood at the original hearing before the vice chancellor. The two children, who were then supposed to be the heirs at law, were complainants ; and no objection was made, in the answer of the defendant, to the jurisdiction of the court to determine the question as to the validity of the last will, if the allegation as to the fraudulent destruction of the first was not sustained. It was, therefore, a matter of course to award an issue devisavit vel non, to determine the question as to the validity of the last will, even if the complainants had not succeeded in proving the fraudulent destruction of the first. For if the first was >destroyed by the testator, or by his direction, yet if the last \yas illegal, the plaintiff would be entitled to the property under their prayer for general relief. If this amendment is allowed, and the infant heir of the testator is made a defendant, she will therefore have a right to insist that Mrs. Idley is a necessary party to establish either will; as the infant may contest the validity of both.

From this view of the case it will be seen, however, that the amendment is not a mere matter of form as regards Mrs. Idley. For if the wife of the complainant Bowen is not an heir at law, the complainants can only succeed by establishing the validity of the first will and by showing that it has not been revoked or destroyed by the testator, or by his direction: even if he was incompetent to make the will of May 1825. Mrs. Idley has the right, therefore, if the amendment is allowed, to put in an answer, or at least a further answer, to the amended bill, for the purpose of setting up such further defence to the same as she may think .^proper to make ; and also to introduce evidence to establish any allegations which may be put in issue by the replication to such further answer. But I can see no valid objection to permitting the testimony which has been already taken between these parties to stand, and to be used on the hearing, as between Bowen and wife and Mrs. Idley ; giving to either the right tore-examine any of the witnesses if necessary. Where the complainant amends his bill after answer, it is a matter of right for the defendant to put in a new or further answer to the amended bill, unless it appears that the amendment is a mere matter of form which cannot alter the rights of such defendant. But in such answer to an amended bill it is not allowable to repeat the allegations in the former answer, unless the grounds of the suit and the defence to the same are varied in substance ; as the original and supplemental answer constitute but one answer to the bill as amended. In Bosanquet v. Marsham, (4 Sim. Rep. 573,) the complainant amended his bill by merely adding a party, after a general demurrer had been overruled • and it was held that such amendment authorized the same party to put in a general demurrer to the amended bill. The vice chancellor said in that case, that after a defendant had answered a bill, any amendment, however trifling in the bill, authorized the defendant to put in another answer, and to make an entirely new defence. (See also Richardson v. Richardson, 5 Paige’s Rep. 58; Gambier v. Lehenp, 1 Dick. 44.) The statute also provides that if an amendment is made to any pleading, in matter of substance, the adverse party shall be allowed an opportunity, according to the course and practice of the court, to answer the pleading so amended. (2 R. S. 424, § 2.)

There is, however, an insuperable objection to the allowance of the amendment in the present case, except by the consent of the defendant. And the only remedy of the complainants, unless such consent can be obtained, is by commencing de novo. Before any witnesses have been examined in a cause, the court will allow the complainant to withdraw his replication and amend, upon such terms, as to costs or otherwise, as may be equitable, upon any reasonable excuse shown for "not making the amendment sooner. But after the proofs are closed, and especially after the cause has been heard upon pleadings and proofs although no decree has been made therein, no other than mere formal amendments are allowed, and those only under very special circumstances. In that stage of a cause, if it becomes necessary to .add new parties who will have the right to examine witnesses in their defence, the proper course is to let the cause stand over, with liberty to the complainant to bring the new defendants before the court by supplemental bill. In this case the cause was heard on its merits, and the complainants’ counsel was at the hearing fully apprised of the objection that the infant’s interest was in favor of the last will, if either was to be sustained, and of course that her interest was adverse to that of the other complainant in the prosecution of this suit. And if a mere formal amendment was required to place the parties rectus in curia, and without the necessity of taking any further testimony, that was the proper time to apply for leave to make such an amendment. The complainants, however, thought proper to proceed to a decree without asking for an amendment, or even for a reference to ascertain whether it was for the interest of the infant that the suit should be prosecuted in her name as a complainant. And the decree thus made, which must be opened if this amendment prevails, has been twice affirmed on appeal.

That decree of the vice chancellor having been affirmed by the court of dernier resort, without any authority reserved to this court to open or modify the same, the court must proceed and cany it into effect, unless it is opened by the consent of the parties, or the bill is dismissed because it cannot be further prosecuted in the name of the infant against her interest. The reservation of "a right to any person to apply in behalf of the infant for a reference, and to stay a suit improperly prosecuted in her name against her interest, was not a reservation of a right to the other complainants to amend their bill and to open the decretal order : which order had been affirmed by the chancellor on appeal, so far as the rights of the defendant were concerned. If a suit is improperly brought in the name of an infant, and he elects to abandon it when he arrives at full age, or the court elects for him upon the report of a master during his minority, the proper course is to dismiss the bill with costs, to be paid by the next friend or person who has improperly prosecuted the suit in the name of the infant. (See Waring v. Crane, 2 Paige’s Rep. 80.) The decree of the vice chancellor, allowing this amendment, and precluding the defendant from putting in a further answer, to enable her to make a further defence to the new case as against her which will be presented by the proposed amendments, must therefore be reversed, with costs.

It is very desirable, however, that these parties should be saved the expense, if possible, of going over again with the testimony already taken; and this difficulty may be avoided by a proper concession of both parties. I shall therefore, under the general prayer of the petition which was presezited to the vice chancellor, permit the complainants to dismiss their bill without costs, and to proceed de novo, unless the defendant will stipulate that the decretal order which has been confirmed ozi appeal, may be opened, and the proposed amendments made upozi the payment of costs as pz’oposed in the oz’der of the vice chancellor; reserving to the defendant the right to put in a further or supplemental answer insisting upon such further or other defence to the amended bill as she may be advised to make, and with liberty to either party to take such further proofs, in addition to those already taken, as they may be advised to be necessary. If the defendant does not file such stipulation, and serve a copy thereof within thirty days after she has notice of the order to be entered on this appeal, the complainants may enter an order of course, upon filing an affidavit of the fact, that the bill be dismissed without costs, and without prejudice to the right of Bowen and wife to file a new bill against the infant and the defendant in the present suit. But if the defendant stipulates within the time proposed, the complainants must withdraw the application and make the amendment and pay the costs, including the costs upon this appeal, within twenty days after service of the stipulation, and of a copy of the bill of costs, or the complainants’ bill must be dismissed, with costs to be paid by. Bowen,


source: Caselaw Access Project

author:
E. Cowen, V. C.
      The Chancellor.

license: Public Domain

text:
    Lovett vs. The Steam Saw Mill Association and others.
    Where the president of an incorporated company affixed the corporate seal to a mortgage, and signed his name to the same as such president, and acknowledged the execution thereof before the proper officer, testifying that the seal thus affixed was the common seal of the corporation, and was affixed thereto by him by authority of the corporation; Held, that the mortgage was duly acknowledged and proved to entitle it to be recorded, or to be read in evidence without further proof of its execution.
    The answer of a corporation under its corporate seal, which the complainant does not require to be verified by the officers of the company for the purposes of discovery, is not evidence in favor of the corporation, although it is responsive to the bill.
    The seal of a corporation aggregate, affixed to a deed, is of itself prima facie evidence that if was so affixed by authority of the corporation ; especially if it is proved to havebeen affixed to the deed by an officer who was entrusted by the corporation with the custody of such seal. And it lies with the par, ty objecting to the due execution of the deed, to show that the corporate seal was affixed to it surreptitiously, or improperly.
    Where a deed is executed by an attorney lawfully authorized, he is the party executing the same, and may make the acknowledgment of the deed, within the intent and meaning of the statute on .that subject, to entitle it to be recorded.
    1836. April 5.
    This was an appeal from a decree of the vice chancellor of the fourth circuit. The complainant’s bill was filed for the purpose of foreclosing two mortgages, given by The Steam Saw Mill Association to the complainant; and certain judgment creditors, and other subsequent incumbrancers upon the mortgaged premises, were made defendants. The bill was taken as confessed against all the defendants except the corporation. The Steam Saw Mill Association put in an answer, under their common seal, by which they admitted that their president affixed the common seal of the corporation to the bonds and mortgages, but they denied his authority so to do. They also alleged that, previous to the incorporation of the company, the complainant leased the mortgaged premises, and his right and title to one half of the street upon which the premises were bounded, to Robert McQueen and his associates, for the term of 21 years, with the privilege of purchasing the same for the sum of $7600, upon the payment to him of that sum at anytime previous to the 15th of November, 1826; that after the company was incorporated, the lessees, on the 14th of March, 1826, assigned all their interest in the lease to the corporation ; and that upon the same day. a resolution was passed by the board of directors, authorizing a purchase of the fee of the premises, and that a bond and mortgage be given accordingly; that the complainant expressed a willingness to convey the premises to the corporation, pursuant to his covenant in the lease, and executed a deed accordingly, on the 24th of April, 1826, under pretence of conveying the whole premises; but that in drawing the deed the complainant intentionally and fraudulently omitted to insert therein and to convey his right and title to the half of the streets upon which the premises were bounded; and ¡that the complainant afterwards refused to correct this error in the deed. The corporation, in their answer, denied that any other sum than the $7600, mentioned in the lease, would have been due if the conveyance had been for the whole premises as mentioned in the lease; an offset was also claimed, on account of monies of the corporation in the hands of the complainant.
    The cause was heard upon pleadings and proofs. And the bonds and mortgages were produced, with the common seal of the corporation affixed thereto, and signed by the president of the corporation. The mortgages were also proved and acknowledged by him, at the time of the execution thereof, in the usual form, by his testifying that the seal thus affixed was the common seal of the corporation, and that it was affixed thereto by him by the authority of the corporation. The common seal, as affixed to other papers, was also proved by some of the witnesses in the cause. The vice chancellor decided and decreed that the bonds and mortgages were duly executed, upon a full and adequate consideration; and he ordered a reference to a master to take an account of the amount due to the complainant on the mortgages, and also to take an account of the amounts due to the other defendants, who had suffered the bill to be taken as confessed, and to ascertain the priority of their respective liens; reserving all further directions until the coming in of the report. From this decree and every part thereof the Steam Saw Mill Association appealed.
   The following opinion was delivered by the vice chancellor, at the time of making the decretal order appealed from :

E. Cowen, V. C.

The execution of the mortgages is admitted in this case ; that is to say, the answer admits that Bailey, the president, affixed the seal of the corporation. This also appears by his deposition, taken on the part of the defendants, and he supposed that he acted under the proper authority in so doing. This is abundant proof that the mortgages were executed by the company. Proof that the common seal was affixed, by no matter whom, is enough; (1 Kyd on Corporations, 268; Brounker v. Atkyns, Skin. 2 ;) a fortiori where it is affixed by the head officer of the corporation. In neither case is it necessary to show that a majority of the corporation agreed to the act. Sealing a deed is enough, even without delivery, in the case of an aggregate corporation. (1 Kyd on Corp. 268. 1 Ventr. 257. 3 Keb. 307.) It is not necessary, therefore, to inquire whether a corporate deed can be acknowledged within the statutes of registry. The bonds are duly proved by W. F. Osgood ; and the mortgagees admit the consideration to have been the purchase money;

B. F. Butler, for the appellants.

There is no sufficient proof of the execution of the mortgages by the corporation, and the bill should therefore have been dismissed. And if the mortgages are considered as proved; the defendants, on the facts stated in their answer in response to the bill, and on the proofs, are entitled to reduce the principal to $7606, and to a correction of the conveyance in respect to the streets;

P. A. Cowdrey, for the respondent.

The bonds and mortgages, mentioned in the pleadings, were duly executed by the defendants, the Steam Saw Mill Association, under their corporate seal; and they cannot be impeached for the mere want of consideration i nor if they could, have they been so impeached;

The only defence which the association can set up, in avoidance of their bonds and mortgages, is, that the consideration upon which they were founded has failed, or that it was an illegal one, or that they were obtained by fraud, Neither of those defences can be sustained ; nor can the defendants avail themselves, by way of offset, of any alleged breach of the covenant to convey the demised premises, because, 1. A claim for these damages, if any such exist, must be presented by a cross-bill; 2. The damages for any supposed breach of this covenant are unliquidated and uncertain ; 3. The covenant to convey one-half of the street in front of the lots, was substantially performed by the conveyance of the lots bounded upon the streets, which gave to the grantees the right of way and left in the complainant a fee of mere nominal value; 4. The covenant to convey having been executory, and consummated by the deed subsequently given, the covenant was thereby virtually cancelled; and 5. The lease was actually cancelled by the authorized agent of the association.

Without inquiring whether the defence set üp by the answer, in avoidance, would be a valid one in equity, it is enough to say that the facts of the defence are altogether unsupported by proofs The answer is not under oath, and therefore is a mere pleading. It is not evidence, except where it makes against the defendants, even if in making the defence it could be taken as responsive to the bill.

It is unnecessary to detail the matters contained in the depositions. They do not establish a single fact set up in defence.

The Chancellor.

The first question presented in this case is as to the due execution of the mortgages. On the part of the appellants it is insisted, that the answer of the corporation, under the corporate seal, is evidence in their favor, so far as it is responsive to the bill; and that their denial of the authority of the president to affix the seal to these mortgages rendered it necessary for the complainant to show such authority. In the case of Haight v. The Proprietors of the Morris Aqueduct, (4 Wash. C. C. Rep. 601,) the late Judge Washington decided that the answer of a corporation, under its corporate seal, was sufficient to prevent the granting of an injunction, or to warrant a dissolution of the injunction if it had been granted; and he also intimates an opinion that such an answer would avail the corporation as evidence at the hearing, in the same manner as if put in by an individual under oath. The contrary, however, has been decided by this court, in the case of The Fulton Bank v. The New-York & Sharon Canal Company,(1 Paige’s Rep. 311,) and in several other cases; and the decisions of this court upon that point appear to be sustained by the opinion of the supreme court of the United States, in the case of The Union Bank of Georgetown v. Geary, (5 Peters’ Rep. 111,) although the question was not expressly decided there. Mr. Justice Thompson, in delivering the opinion of the court in that case, says, “ Although the reason of the rule which requires two witnesses, or circumstances to corroborate the testimony of one, to outweigh the answer, may be founded in a great measure upon the consideration that the complainant makes the answer evidence by calling for it; yet this is in reference to the ordinary practice of the court, requiring the answer to be on oath. But the weight of such answer is very much lessened, if not entirely destroyed as matter of evidence, when unaccompanied by an oath. And indeed we are inclined to adopt it as a general rule, that an answer not under oath is to be considered merely as a denial of the allegations in the bill, analogous to the general issue at law, so as to put the complainant to the proof of such allegations.” This is unquestionably the correct view of the matter. The answer of a corporation, without oath, where the complainant does not require it to be sworn to or supported by the sworn answer of the officers of the corporation, cannot be said to answer the double purpose of a pleading to put the material matters of the bill in issue, and of an examination of the defendant for the purpose of obtaining his evidence in support of the complainant’s allegations ; and it is for the latter purpose alone that the complainant makes a witness of his adversary in the cause.

Considering this answer then as a mere pleading, to put in issue the allegations in the bill and to set up new matters in defence of the suit, I think the complainant has proved all that was necessary to entitle him to a decree for the foreclosure of these mortgages; and the defendants have not established the defence of fraud, or of a want of consideration, which are set up in the answer.

The legislature never could have intended to require the deed or mortgage of a corporation to be recorded, as a necessary requisite to the preservation of the rights of the grantee or mortgagee against subsequent purchasers or incumbrancers, and at the same time to deny to him the power of having his deed or mortgage proved or acknowledged in such a manner as would authorize the same to be recorded. The act of April, 1813, under which these mortgages were acknowledged and proved, required that a deed of real estate, to entitle it to be recorded, should be duly acknowledged by the party executing the same, or be proved by a subscribing witness thereto; and the same provision, substantially, is contained in the revised statutes. (1 R. L. 869, § 1. 1 R. S. 756, § 4.) And I think these mortgages were acknowledged by the party executing the same, and proved by a subscribing witness thereto, within the meaning of the statutory provisions on this subject. Where a deed is executed by the attorney of the grantor, lawfully authorized, he is the party executing the same, who may make the acknowledgment; and such has been the uniform construction of the statute. So also, the officer or agent of a corporation, who executes a deed in the name of the corporation by affixing thereto the impession of the common or corporate seal entrusted to his care, is the party executing the deed ; as it is impossible that a corporation aggregate should execute or acknowledge a deed in person. The officer of the corporation entrusted with its common seal, and who subscribes his name to the deed as the evidence that he is the person who has affixed the common seal to the same, stands also in the character of a subscribing witness to the execution of the deed by the corporation ; and may be examined by the commissioner of deeds to prove that the seal affixed by him is the common seal of the corporation, whose deed the conveyance or instrument to which it is affixed, purports to be. The seal of a corporation aggregate affixed to a deed, is of itself prima facie evidence that it was so affixed by the authority of the corporation ; especially if it is proved to have been put to the deed by an officer who was entrusted by the corporation with the custody of such seal. (See 1 Kyd on Corp. 268; and Angel & Ames on Corp. 115,) And it lies with the party objecting to the due execution of the deed, to show that the corporate seal was affixed to it surreptitiously or improperly; and that all the preliminary steps to authorize the officer having, the legal custody of the seal to affix it to the deed, had not been complied with. (Clarke v. The Imperial Gas Light & Coke Company, 4 Barn. & Ald. Rep. 315. 1 Nev. & Mann. Rep. 206, S. C.) In this case, therefore, the bonds and mortgages under the corporate seal of the company, which was affixed to them by the president who had the legal custody of such seal, were prima facie evidence that the whole amount secured thereby was justly due; and it lay with the defendants to establish the fact, by legal proof, that there was fraud in obtaining them, or that the seal was improperly placed upon the bonds and mortgages, and without authority.

There is no evidence that the right of the complainants to the half of the streets was omitted with any fraudulent intent; or that he agreed to sell the leasehold premises to the corporation, on a credit of five years, at the same price at which he had covenanted to sell them to the lessees, provided the money was paid within a few months thereafter; and for aught that appears in this case, the rent reserved in the lease, or something else, may have formed a part of the consideration of the mortgages. Since the decision of the court for the correction of errors, as to the equitable rights of the grantees of urban property, bounded upon streets, to have such streets kept open for their benefit, it is of but little consequence whether there was or was not an express grant of the complainant’s right to the half of the adjacent streets, contained in the deed.

So much of the decree of the vice chancellor as adjudges and decrees that the bonds and mortgages were duly executed by the appellants, upon full, adequate and legal consideration, must be affirmed with costs, to be paid out of the proceeds of the sale of the mortgaged premises, if such proceeds shall be sufficient for that purpose after paying the complainant’s debt and costs in the suit; and if not, the balance of such costs are to be paid by the appellants.

It was out of the usual course to direct a reference in this stage of the suit, to ascertain the rights of the junior incumbrancers, who had not appeared and answered ; and it will subject the appellants to some extra costs to have the cause set down for hearing a second time, upon the equity reserved. The appellants may, therefore, if they desire it, have that part of the decree modified, so as to direct a reference merely to ascertain what is due upon the complainant’s bonds and mortgages, and for a sale in the usual way, upon the coming in and confirmation of the report; and to have the surplus proceeds of the sale brought into court and deposited in the trust company, after paying the complainant’s debt and costs, until the rights of the junior incumbrancers can be settled by a reference, under the 136th rule of the court. But if the appellants do not wish such a modification of the decree, the whole must be affirmed, and the proceedings remitted to the vice chancellor.


author: The Chancellor.

text:
    Van Wyck vs. Seward and others.
    A verdict for the defendant and judgment thereon in an ejectment suit, previous to the revised statutes, brought for the recovery of lands alleged to have been fraudulently conveyed to the defendant, is not a bar to a subse- . quent suit in chancery against him to set aside the conveyance on the ground of fraud.
    The doctrine of estoppels, as a mere technical rule, is not favored in courts of equity; and where there is no estoppel at law, the court of chancery will not resort to it to deprive a party of his rights. But the verdict of a jury in an ejectment suit, between the same parties, and upon the same question, is proper to he taken into consideration in determining a doubtful question of fact in a subsequent suit in chancery; and it may be a sufficient reason for refusing to award a feigned issue'in a case where an issue would otherwise have been proper.
    The mere fact of an existing indebtedness, does not render a voluntary conveyance absolutely fraudulent, or void in law, as against the creditors whose debts were previously contracted, if there was no intention on 'the part of the grantor to delay or defraud his creditors.
    Where a parent makes an advancement to his child, and honestly and fairly retains in his hands sufficient property to pay all his debts, such child will not be bound to refund the advancement, for the benefit of the creditors, although it should afterwards happen that the parent does not pay his debts which existed at the time of the making of such advancement. But where the debtor makes a voluntary conveyance of his property, without any valuable consideration, and for the purpose of defrauding creditors, it seems that a court of equity may follow the property into the hands of the voluntary donee, for the benefit of such creditors, although the donee was not privy to the intended fraud.
    This case came before the chancellor upon appeal. The facts upon which the decison was founded will appear by an examination of the report of a previous suit at law, and the report of this case before the vice chancellor. (See 5
      Cowen’s Rep. 67; 8 Idem, 406 ; and 1 Edward’s Chancery Rep. 327.)

      D. B. Tallmadge & S. Sherwood, for the complainants.
    The verdict and judgment in the action of ejectment, were no bar to this suit. The conveyance of the farm from Seward senior, to Philander Seward ; the gift of all his personal estate by said William to Philander, and the transfer of Philander’s bonds by Seward senior, to Rebecca Swartwout and Electa Dodge, were voluntary conveyances and gifts, without a valuable consideration, and void as to the appellant; or, if not void, the property conveyed became a trust fund for the payment of the debts of Seward senior. When the conveyances and gifts were made, the appellant was a creditor of Seward senior. (1 R. L. of 1813, p. 75, § 2. Jackson v. Seward, 8 Cowen, 71. Jackson v. Myers, 18 John. R. 425. Fox v. Hills, 1 Day’s Conn. Rep. 295. Wilcox v. Fitch, 20 John. R. 472. Rob. on F. Con. 1, Note a. 459.) The conveyances and gifts being voluntary, were, as to the appellant, absolutely void in law. (Jackson v. Seward, 5 Cowen, 87. Reade v. Livingston, 3 J. C. R. 481. Backhouse v. Jett, 1 Brockenb. R. 500. Hopkirk v. Randolph, 2 idem, 138. Bullard v. Briggs, 7 Pick. 533. Bennett v. Bedford Bank, 11 Mass. R. 421. Ridgeway v. Underwood, 4 Wash. C. C. R. 137. Sexton v. Wheaton, 8 Wheat. 229. 2 Hovenden on F. 74, and cases cited. Twine’s case, 3 Rep. 80.) If they were not absolutely invalid, they were at least prima facie fraudulent and void as to creditors. (Seward v. Jackson, 8 Cowen, 406. Jackson v. Peck, 4 Wendell, 300. Jackson v. Timmerman, 7 id. 436. Wood v. Jackson, 8 id. 25. Hinde’s lessee v. Longworth, 11 Wheat. 213. Hopkirk v. Randolph, 2 Brock. R. 136. Taylor v. Jones, 2 Atk. 600. Townsend v. Windham, 2 Ves. sen. 11. Partridge v. Gopp, Ambler, 594.) There is nothing in this case to rebut this prima facie evidence of fraud. (11 Wheat. 213, cited before. S Cowen, 406, id. 4 Wendell, 303, id. Salmon v. Bennett, 1 Day’s Conn. R. 547. 2 Brock. R. 137 to 146, cited before. Cathcart v. Robinson, 5 Pet. R. 279.)

      The property bid in by Van Wyck on the executions' aSainst Se>vard junior, can not now be questioned: nor can the respondents deny that the covenant of Seward senior,- was broken. The recovery on the covenant, bars any further inquiry. The sales were in fact fair. If not fair, the remedy was by a bill charging fraud ; not by answer in this case. Whether fair or not, is not a question at this times

      J. Tallmadge & D. B. Ogden, for the defendants.
    The' deed in question from William Seward is not fraudulent and void, as against the complainant. At the time of its execution,- there was no debt due from William Seward to the complainant, and it was dependant upon a contingency Whether" there ever would be' any due. The deed was given partly on a good, and partly for a valuable consideration. At the time it was executed, there was no intention to de«fraud the complainant.
    The verdict and judgment in the action of ejectment are a bar to this suit. (Seward v. Jackson, 5 Cowen, 406. Hinde’s lessee v. Longworth, 11th Wheaton’s Reports, 199. 2 Kent’s Comm. 440, 441, 442, 443, and the cases there cited. 1 Story’s Comm. on Equity, 351. Aslin v. Parkin. 2 Burr 668.)
   The Chancellor.

This is an appeal from a decree of the vice chancellor of the first circuit, dismissing the com-» plainant’s bill with costs. The evidence in this case is substantially the same as that which was introduced when the question as to the validity of the conveyance from William Seward to his son Philander was brought before a jury in the ejectment suit for the same premises. I cannot agree with the vice chancellor in the opinion expressed by him in this cause, that the verdict of the jury in the ejectment suit, brought by the complainant for the recovery of the same property, is a conclusive bar to a bill filed in this court to set aside the conveyance to Philander Seward, on the ground that it was fraudulent and void as against creditors. The decision of the court of dernier resort, upon the question of law which was presented to that court in the former suit, is indeed binding upon all inferior tribunals. It is, therefore, conclusively settled, that the mere fact of an existing indebtedness, does not render a voluntary con* veyance, from a parent to his child, absolutely fraudulent and void in law, as against the creditors whose debts were contracted previous to such conveyance, where no intention existed on the part of the grantor to delay or defraud his creditors. But the doctrine of estoppels, as a mere technical rule, is not favored in any court, especially in courts of equity. And where there is no estoppel at law, this court will not resort to a technical rule which does not exist at law, to deprive a party of his rights. It was well settled, that an ejectment suit, previous to the revised statutes, might be repeated as often as a party thought fit to risk the payment of the costs. And although this court would restrain the party from proceeding with an interminable litigation, when the question had been decided the same way by repeated verdicts, I am not aware of any case in which this court has held a party concluded by a single verdict in an ejectment suit.

But although I cannot agree with the vice chancellor in his opinion as to the effect of the judgment in the ejectment suit, as a bar to the relief sought by this bill against the defendant Philander Seward, there is no doubt but that the verdict, which was given in that case, is proper to be taken into consideration in determining a disputed question of fact, as to the existence of actual fraud in giving the deed. And where the testimony leaves it doubtful, whether there was or was not fraud in the case, the fact that the same question had been submitted to a jury, who had found that there was no fraud, certainly ought to have some influence with the court, or with another jury, in determining the same question in another suit between the same parties. And in this court it might be a sufficient reason for refusing to award a feigned issue, in a case which would otherwise have been a proper case for an issue to determine the question of fraud.

Independent of the verdict in the former case, however, which I do not place much reliance upon, as the question of fraud was never, in fact, submitted to the consideration of the juiy, I think the complainant has failed in showing that William Seward had an intention to defraud the complainant by this voluntary settlement of his property, which took place before it was ascertained that the judgment against William Seward, the younger, could not be collected out of the property upon which it was a lien. The object of the complainant in getting the assignment of the judgment against William Seward, the younger, was, unquestionably, for the purpose of controlling it in such a manner as to secure his own demand against the same party without a sacrifice. And I think the evidence shows, most conclusively, that the property upon which the assigned judgment was a lien, if sold for any thing like its fair cash value, would have been sufficient to satisfy the whole amount of that judgment. The complainant, perhaps, had the technical right to put up the property for sale upon the execution, and bid it in for a nominal sum if no bidders attended to run it up to its fair value, and then to hold William Seward, who had guaranteed the collection of the judgment, liable for the deficiency. But must we presume that William Seward anticipated that such a course of proceeding would have been adopted by the complainant; and hold his settlement of his property among the different members of his family who had claims upon his bounty, fraudulent for that reason 1 If there was ample property bound by the lien of the judgment to pay the debt, at the fair cash value, and the guarantor had no reason to believe he would be charged with any thing under his guaranty, that is sufficient to rebut all presumption of fraud. Under the circumstances of this case, I do not believe the complainant would have permitted a stranger to bid in the property bound by the assigned judgment at the amount due thereon; leaving his own subsequent judgment unpaid. The assignor, therefore, could not reasonably have anticipated the events which afterwards occurred,

Again ; W. Seward, the elder, at the time he made the voluntary conveyance of the farm to his son, and settled a portion of his estate among his children, did not divest himself of the means of paying any probable loss which might accrue upon the judgment, even if he could reasonably have anticipated such a loss. The conveyance to the defendant, Philander Seward, of the farm, was made on the 16th of April, 1818, at which time his father still held and retained in his own hands the complainant’s two bonds, one for @2000, payable in November, 1818, and the other for @902,-75, payable in November, 1819. This was an ample fund to meet any possible loss which could arise upon the judgment, as these two bonds constituted the whole consideration of the assignment. It is not material to inquire what became of the money paid by the complainant upon the @2000 bond, in November, 1813, as there is no pretence that it came into the hands of any of the defendants in this suit. It is sufficient for them to show that the disposition which W. Seward made of his property among his children, in April, 1818, was a fair and reasonable family settlement with reference to his and their situation, and that he retained still in his hands the complainant’s two bonds, which were enough to pay all his debts in any possible contingency.

I can sec no good reason in this case, if there was no intended fraud on the part of the father in malting this settlement of his estate, for depriving his two daughters, who are made defendants, of the amount due to them on the bonds of Philander Seward. I presume it cannot be seriously urged that where a parent makes an advancement to his child, honestly and fairly retaining in his own hands at the same time property sufficient to pay all his debts, such child will be bound to refund the advancement for the benefit of creditors, if it afterwards happens that the parent either by misfortune or fraud, does not actually pay all his debts which existed at the time of the advancement.

Where a parent makes a voluntary gift or conveyance of his property without any valuable consideration, and for the purpose of defrauding creditors, equity may well follow it into the hands of the donee, for the benefit of the creditors, although such donee was not privy to the intended, fraud. But I have already satisfied myself that this is no! such a case. Although the complainant had a technical right to keep all the property bid in under the judgment, and to hold the assignee liable for the deficiency, it would be requiring too much of a court of equity to ask it to lend its aid to .strip the children of the assignor of the advancements which he had honestly made to them out of his estate, when he had ample means for making such advancements without the risk of doing injustice to any of his creditors.

The conclusion at which I have arrived, therefore, is, that there is no foundation for this suit as against either of the defendants; and that the decree of the vice chancellor, dismissing the bill, should be affirmed, with costs.

       The decree of the chancellor in this case was affirmed, on appeal to the court for the correction of errors, in December, 1837.


text:
    Becker vs. Ten Eyck.
    The sheriffs of the several counties, except the county of New-York, are the keepers of the county jails, and are entitled to all the fees and perquisites of such office.
    The sheriff may keep the jail in person, or he may employ under him as many deputy keepers as he thinks fit, and may allow them such compensations for their services as shall be agreed upon between him and them, either by way of salary, or by allowing them the whole or a portion of the perquisites to which he is entitled as the principal keeper.
    So the sheriff may contract with his under sheriff and deputies for the discharge of the duties of their several trusts, either for a specific compensation or for a reasonable proportion of the fees and emoluments arising from the performance of such duties. But an agreement of a deputy to allow to his principal a sum in gross, not payable out of the profits of the office, and which may therefore exceed such profits, is a violation of the statute which prohibits the buying and selling of offices.
    Where the deputy of a public officer is by law entitled to certain fees or perquisites in virtue of his character of deputy merely, if he agrees to give to the officer appointing him a portion of such fees or perquisites, it is a purchase of the deputation; and the parties to such agreement are guilty of a violation of the statute against the buying and selling of offices.

      1836. April 19.
    This was an appeal from a decretal order of the vice chancellor of the third circuit. The defendant, C. A. Ten Eyck, was sheriff of the county of Albany, during the years 1826, 1827 and 1828, and the complainant was his under sheriff and jailer. The complainant, during the three years, purchased the fuel, lights, provisions and supplies for the jail, hired turnkeys, cooked the food of the prisoners and caused the jail to be cleansed, &c. at his own expense.
    The accounts for these expenditures, together with the fees for receiving and discharging prisoners in criminal cases, were made out by him annually, in the name of the sheriff, and presented to the board of supervisors for their allowance, and were audited and allowed in the name of the sheriff, and were thus entered in the books of the county treasurer. The amount allowed during the two first years, was paid to the complainant, by the county treasurer, on the orders or with the assent of the sheriff; out of which amount the complainant in each year paid to the sheriff $200. The amount which was thus allowed for the last year, in the name of the defendant Ten Eyck, was $3035,-82 ; of which sum $436,13, was fbr the fees of receiving and discharging prisoners, and of transporting two prisoners to the House of Refuge, and the residue was for board and clothing prisoners, cleaning the jail, and for wood, oil, and other supplies for the jail. The defendant Ten Eyck, forbid the county treasurer from paying over the last year’s allowance to the complainant until a settlement should be made between them, claiming a right to a share of the profits of keeping the jail and dieting the prisoners, &c. during the three years. The complainant thereupon filed his bill in this cause against Ten Eyck and the county treasurer, to restrain the former from receiving the amount thus allowed, and to have the same paid over to him.
    The complainant alleged in his bill that the allowance of the account in the name of Ten Eyck was a matter vof form only, as he was the sheriff of the county, but that the whole amount thereof belonged to the complainant; that no special agreement existed between him and Ten Eyck that he should pay the latter any part of the accounts annually allowed for such jail expenses ; and that the sums which he had paid to Ten Eyck the two previous years, had been obtained by threats of removing him from his office of under sheriff and jailer; and that upon a fair adjustment of his accounts with Ten Eyck, as his under sheriff, a balance would be due to the complainant. An arrangement was afterwards entered into between the parties, by which the amount allowed by the supervisors for the last year was received from the county treasurer and placed in the hands of a third person to pay out a portion thereof to those who had furnished wood and provisions to the complainant for the use of the jail, and to deposit the residue in bank, to abide the decision of the court. By the answer of the defendant he admitted that the complainant had kept the jail and supplied the prisoners with food, &c. and had purchased the wood and other supplies, and hired turnkeys and procured the jail to be cleansed; but he insisted that it had been all done by the complainant as his agent. The defendant also alleged that previous to his appointing the complainant his under sheriff and jailer, other applicants had made him offers of different sums of money to be paid to him for his proportion of the profits from the jail, which he communicated to the complainant before his appointment, and the complainant promised and agreed to give him one half of all the fees and perquisites of the office of under sheriff and jailer. The defendant also alleged, in his answer, that the complainant had refused to render an account of the fees and perquisites of the office of under sheriff and jailer, the one half of which, as the defendant had been informed and believed, amounted to at least $500 per annum.
    The cause was heard before the vice chancellor upon the pleadings and proofs. He made a decree, and directed a reference to a master to take an account between the parties, upon the principle of crediting the sheriff with all allowances made by the board of supervisors on account of the jail expenses during the three years, and all monies received by the complainant as under sheriff; and crediting the complainant for monies paid or liabilities incurred by him for the necessary expenses and supplies for the jail, and a reasonable compensation for his services and expenses as under sheriff and jailer; and charging him for the provisions which he had used for his family out of those which were purchased for the use of the jail, and for the privileges which he had enjoyed as jailer. The decree also contained the usual directions for the production of books and papers, and for the examination of the parties on oath; and the question of costs, and other questions, were reserved. From this decree the complainant appealed.
    J. King & J. M’Kown, for the complainant.

      A. Van Vechten & J. T. B. Van Vechten, for the defendant.
   The Chancellor.

I can see no legal objection to the principles upon which this decree is based, if the pleadings and the facts in the case can justify the court in arriving at the conclusion that the complainant was acting as a mere agent of the defendant, in discharging the duties of under sheriff and jailer, and in supplying the jail; and that he was to be compensated for his services upon the principle of a quantum meruit merely. By the statute which was in force when this controversy originated, and which does not appear to have been altered in this respect in the recent revision of the laws, the sheriffs of the several counties in this state, except in the city and county of New-York are the keepers of the county jails, for the confinement of prisoners upon criminal as well as on civil process ; and they are legally entitled to all the fees and perquisites belonging to such office. (1 R. L. 422, § 7,380, § 75, 2 R. S. 754, § 1.) The expression in the act of 1813, that “ the sheriffs respectively, shall put in such keepers for whom they will answer,” does not render it imperative upon the sheriff to appoint any individual to the office of keeper of the jail, but merely that the sheriff shall be answerable for the acts of those to whom he entrusts the offices and duties of deputy keepers under him. Or, in the language of the revised statutes, that the several sheriffs may appoint keepers of such jails and prisons, for whose acts they shall be responsible. The sheriff, therefore, may keep the prison in person, or he may employ so many deputy keepers under him as he may think fit; and may allow them such compensation for their services as may be agreed upon between him and them, either by way of salary or by allowing them the whole or a portion of the perquisites to which he is entitled as the principal keeper of the county jail. The complainant, in this case was but a deputy of the sheriff in the keeping of the jail, as he was, in the character of under sheriff, a general deputy in the service of writs and other process ; and it was as competent for the sheriff to contract with him for the discharge of the duties of the one trust as the other for a specific compensation, or for a reasonable proportion of the fees and emoluments arising from the performance of such duties.

The act of the 7th of Februaiy 1788, against buying and selling of offices, (1 R. L. of 1813, p. 109,) was only a reenactment of the provisions of the statute 5th and 6th, Edward 6th, chapter 16th, on the same subject; under which statute it has been repeatedly decided that where the duties of an office can be discharged by deputy the principal may agree with his deputy to allow him a fixed compensation for his services, or that the deputy shall permit the principal to retain a certain proportion of the profits of the office, (Welch v. Baden, 3 Keb. 717 ; Gulliford v. DeCardonell, 2 Salk. 466, Com. Rep. 1 S. C.; Ballantine v. Irwin, Fort. Rep. 368 : Machen v. Stanyon, 1 Bro. P. C. Toml. ed. 133.) But an agreement of a deputy to allow to his principal a sum in gross, not payable out of the profits of the office, and which may therefore exceed such profits, is a sale of the deputation, and a violation of the statute. This was so held, in the case of Godolphin v. Tudor, (2 Salk. 468 ; Willes’ Rep. 575 n.) by the court of Kings Bench in England, in the reign of Queen Anne ; and the judgment was afterwards affirmed in the house of Lords. (1 Bro. P. C. Toml. ed. 135.) That case was three times argued in the court of Kings Bench, and may therefore be considered as a leading case on this subject. It was there settled that if an officer has an annual salary, or other profits amounting to a certain sum yearly, a deputation of such office reserving to the principal out of it, a sum not exceeding the certain profits, is not a sale of the office, or of the deputation, contraiy to the statute, So if a deputy be appointed to an office consisting of uncertain profits, paying any sum whatever out of such profits, the deputation and contract for the payment are good, because the deputy is to pay out of the profits only, and cannot be charged for more than he receives. But if an office consisting of uncertain fees be granted to a deputy, together with all its fees, reserving a certain sum to be paid at all events, it is a sale of the office, and not a grant of a deputation reserving a portion of the profits; and an agreement to pay such sum is void by the statute. (See also Garforth v. Feron, 1 Hen. Bl. Rep. 328 ; Noel v. Fisher, 3 Call’s Rep. 215 ; and Salling v. McKinney, 1 Leigh’s Rep. 42.)

The cases to which I have referred, all go upoh the principle that the sheriff or other officer making the deputation is legally entitled to the fees or profits; and that the deputy is only entitled to such parts thereof, or to such other compensation, as the person appointing him thinks proper to agree to give him for discharging the duties of the office as such deputy. But there is another class of cases in which the deputy is by law entitled to certain fees or perquisites in virtue of his character of deputy merely. In cases or that kind, an agreement by the deputy to give to the officer appointing him any portion or share of the fees or perquisites which legally belong to the deputy as such, is a purchase of the deputation, and a direct violation of the statute. The case of Tappan v. Brown (9 Wend. Rep. 175,) which was relied upon by the appellant’s counsel on the argument, was a case of this description, The statute in that case, gave to the deputy as such, a certain share of the fees for the inspection of flour; to which share the principal inspector had no legal right or claim. The agreement of the deputy, therefore, to accept a sum in gross which was far less than his legal share of the inspection fees, and to let the officer appointing him retain the residue, was in substance an agreement to purchase the deputation, and to give to the officer appointing him a portion of the legal fees of the deputy as a consideration of such purchase; and was a palpavioiati0n of the statute. And in the state of Massachusetts, where the deputies of the sheriff are by law entitled to three-fourths of the fees upon the writs and other process executed by them, a bond from the deputy to the sheriff to secure to the latter the payment of more than twenty five per cent upon the amount of such fees, was very properly held to be illegal and void. (Farrar v. Barton, 5 Mass. Rep. 395.)

The decree of the vice chancellor, in this case, proceeds upon the ground that there was no agreement between the parties as to the keeping and supply of the jail and the fees and profits of that situation; that the complainant must therefore have acted merely as the agent of the sheriff, and that he is to account as such. 1 am satisfied, however, from the pleadings and proofs, that such was not the understanding of the parties. The answer of the defendant, which is responsive to the bill in this respect, states explicitly that it was agreed between him and the complainant, before the appointment of the latter to the offices of under sheriff and jailor, that he should give to the defendant one half of the fees and perquisites arising from such appointment. As there is no evidence whatever to contradict this part of the answer, it is not only evidence that there was an agreement on the subject between the parties, but also of the express terms of that agreement. The account between the parties, therefore, must be taken upon the basis of that agreement. I think also, the evidence shows, very satisfactorily that the complainant in buying wood and provisions &c., for the use of the jail purchased on his own account and not as the agent of the defendant Ten Eyck; and that the several persons from whom the complainant obtained those supplies had no legal claim upon the sheriff for payment. The only perquisites, therefore, which could arise from the furnishing of the jail must be the difference in value between the diet furnished to the prisoners and fuel and lights, &c., furnished for the jail, and the amount actually allowed by the supervisors therefor. Whatever that difference may be the defendant is entitled to the one half thereof under this agreement. He is also entitled to one half of the fees allowed by law for receiving and discharging prisoners, and one half of the fees of transporting the two prisoners to the House of Refuge. And if the defendant has furnished any thing for the use of the jail which has been allowed in these annual accounts* by the supervisors, it should be credited-to him in the taking of the account in this cause.

As the appointment of under sheriff and jailor was made at the same time and under the same agreement, it is proper that the account of the fees and perquisites of both situations should be taken together ; so that the fund in controversy may be distributed according to the equitable rights of the parties. And there is no doubt that a sufficient foundation is laid for such a decree in the pleadings in this cause, and that the- filing of a cross bill would be a useless proceeding.

The decree of the vice chancellor must be reversed or modified, without costs to either party, so as to declare that the defendant is entitled to the one half of the fees and perquisites of the offices or situations of under sheriff and jailor; and that the complainant is entitled to the other half, during the three years ; and to direct a reference to a master to take and state an account between the parties upon the principles above suggested ; reserving the question of costs, except as to the costs on this appeal, and all other questions and directions, until the coming in of the report.


author: E. Cowen, V. C. The Chancellor.

text:
    Woods vs. Skinner & Bulkley.
    1836. April 19.
    Where two of three copartners in a mercantile firm sold and assigned all the partnership property and effects to W., their copartner, and D. W., as Ms surety, joined with him in a bond to B. one of the retiring partners, to pay the debts of the firm and indemnify him against any liability on account of such debts; anda bill in chancery was afterwards filed by W., as such assignee, against S., to recover a demand claimed to be due from him to the firm, and also tobar a claim against the firm on the part of S., which he by his answer alledged to be due and claimed to have allowed to him against the copartnership; Held, that D. W. was not a competent witness for the complainant, to establish his claim against S. and to disprove the claim set up by the latter against the firm; as a decision in favor of the complainant establishing or increasing the amount of the company debt against S., or diminishing the amount of the claim sought to be offset by the defendant, would discharge or diminish the liability of the witness on the indemnity bond pro tanto.
    If the liability of the witness will remain the same whichever way the suit is determined, he is not incompetent; but if a decision in favor of one of the parties would have the effect to discharge the witness from further liability, while a contrary decision would leave him exposed to a suit, he is not a competent witness for the party who is seeking a decision which will discharge the witness from further liability.
    To render a witness incompetent on the ground of interest, it is not necessary to show that the record of a judgment against the party calling him would be evidence against the witness in a subsequent suit. It is sufficient to exclude him, if a decision of the cause in favor of the party calling him will absolutely discharge the witness from his liability to a future suit and recovery against himself.
    Tras was an appeal from a decision of the vice chancellor of the fourth circuit, refusing to suppress the deposition of D. Woods, as a witness for the complainant. One object of the suit was to obtain a decree against the defendant Skinner, barring a claim made by him against the firm of Bulkley, Bishop & Woods, for merchandize which he alleged had been sold by him to that firm, but which the complainant insisted had been sold to Bulkley individually, and constituted his share of the copartnership stock. Another object of the complainant’s bill was to recover against the defendant Bulkley, a balance claimed to be due from him to the firm of Bulkley, Bishop & Woods; and Bulkley, in his answer, set up claims in his favor against the firm, which claims were resisted on the part of the complainant. The firm of Bulkley, Bishop & Woods was dissolved in September, 1830, and Bulkley & Bishop then sold and conveyed to the complainant their several interests in the firm, and he agreed to pay all the debts of the copartnership. The complainant also gave to Bishop a bond, in the penalty of $40,000, with a condition that he would pay all the debts of the firm within two years, and would exonerate and indemnify Bishop therefrom, and from all costs, charges and trouble on account of any demands against the firm; in which bond D. Woods, the witness, joined as one of the sureties. After the commencement of this suit the complainant failed, and in May, 1833, he assigned all his property, including the debts, claims and effects, belonging to him as the assignee of the late firm of Bulkley, Bishop & Woods, to the witness D. Woods, in trust to indemnify himself from his liability on the bond to Bishop, by paying such debts of that firm as were justly due, and the costs of the litigation respecting the same, and to apyly the residue of the assigned property in payment of the debts of the complainant, giving certain preferences to particular classes of creditors. The assignment also contained a provision that the assignee should continue to prosecute this suit. And on the 30th of December, 1833, shortly before the examination of D. Woods as a witness in this cause, he re-assigned to the complainant, W. Woods, a portion of the assigned property, including the claims of the complainant against Bulkley for which this suit was brought. Upon the examination of D. Woods, as a witness for the complainants, to disprove the claim of Skinner against the firm of Bulkley, Bishop & Woods, and to establish the claim against Bulkley in favor of the complainant as the assignee of the firm, and to disprove the claims set up by Bulkley, he was objected to as incompetent, on accomit of his interest in having the suit decided in favor of the complainant. The examiner reserved the question, and an application was thereupon made to the vice chancellor to suppress the deposition. From the decision on that application, both,„of the defendants appealed to the chancellor. |
   The following opinion was delivered by the vice chancellor :

E. Cowen, V. C.

If Bishop were a party, there could be no doubt of D. Woods’ interest; for a decree against Skinner would forever estop Skinner to claim against Bishop, and throw the claim upon Bulkley alone, and thus D. Woods, the surety, would escape. This record would then be evidence against Skinner, in favor of Bishop. The difficulty lies in the parties not being identical. Were Bishop a party with the others, the record would be evidence not only for them all, but for each; according to Lawrence v. Hunt, (10 Wendell, 80,) which is no more than the case of Hitchine v. Campbell, (2 Wm. Black. Rep. 827.) Those were cases of verdicts and judgments at law, and my decree would stand on the same footing, and be evidence under the same limitations. (1 Phil. Ev. 358, 7th ed.) But I am not aware of any case whore a verdict and judgment for A. can be used as evidence in favor of B., unless the latter be in some way privy to the former. I admit the contrary was held in Whatley v. Manheim & Levy, (2 Esp. N. P. Cas. 808,) where the defendants, being found partners during a certain time, on a feigned issue between them awarded on the equity side of the exchequer, in an action against them as partners by Whatley, the verdict was received by Lord Kenyon as evidence of the partnership, it having been open to Manheim on that issue, to rebut the idea of a partnership by every evidence he could offer. And in another nisi prius case, (Lowfield v. Bearcroft, Bull. 40,) a feigned issue found against one defendant was used against another who was not a party to the issue. Phillips, (333,7th ed.) cites these cases without comment, and refers also to 2 New Rep. 371, in which book I find nothing on the question. On what ground the discussion in Lowfield v. Bearcroft proceeded we are not informed, though surely the other defendant must have been in some way privy to the verdict; and as to Whatley v. Manheim, the reason given by Lord Kenyon would subvert the rule, which I understand demands strict mutuality and identity of parties; is, to entitle the party to use the verdict or decree in his favor, it must be capable of being used as evidence against him. (Phil. 326, 7, 7th cd., and the cases there cited) This rule was taken as fully settled so late as Ward v. Wilkinson, (4 Barn. & Ald. 410, 412, per Abbott, C. J)

J. Holmes & S. Stevens, for the appellants.

D. Russell, for the respondent.

It is obvious, that should the reason assigned by Lord Kenyon be adopted it would, among an innumerable class of other innovations, let in a single verdict against partners at the suit of one person so as to conclude or affect them, on the fact of partnership in a suit in favor of any other persons, who might seek to charge them as jointly liable. Indeed this effect was sought to be given to that case in Burgess v. Lane, (3 Greenl. Rep. 165.) The question was there very fully considered ; and Whatley v. Manhcim was held anomalous, not justified by any distinction which could be raised in its favor. The same point was virtually held in Lord v. Baldwin, (6 Pick. 348,) though it is admitted that the attention of the court was not then drawn to Whatley v. Manheim.

I find nothing in the case at bar to take it out of the general rule.

The Chancellor.

I cannot see that the witness D= Woods is interested in the event of this suit, so far as relates to the controversy between the defendant Bulkley and the complainant. Although the assignment of the subject matter of the suit to the witness, in May, 1833, might perhaps have afforded just grounds for an application, on the part of the defendants, to stay the proceedings until the assignee had made himself a party to the suit by a supplemental bill, (as this court requires the proceedings to be carried on in the name of the real complainants,) the re-assignment to W. Woods, in December, 1833, restored the parties to then former situation, so far as relates to the further prosecution of this suit. Whether the witness has or has not made himself liable to the creditors for whose benefit the original assignment was made, to the extent of the assigned property, does not appear to be a question which can properly arise in this cause, except so far as the assignment for his indemnity as one of the sureties in the bond to Bishop may be considered as an indemnity for the benefit of Skinner, as his co-surety. And so far as I can understand the nature of the arrangement made between Bulldey, Bishop & Woods, at the time the two first sold out their respective interests in the firm to W. Woods, Bulldey cannot have any personal claim against Bishop for any balance that was due to the former on his private accounts with the firm at the time of the dissolution. IX Woods, therefore, cannot be made liable to Bishop on his indemnity bond, although there should be a balance found due to Bulldey from the firm ; and for that reason he has no interest to testify in such a manner as to produce a decree against the defendant Bulldey, which would forever preclude the latter from making any claim upon either of his copartners.

The competency of the witness, as against the defendant Skinner, does not depend upon the question whether a decree in favor of the latter, establishing a debt against the firm of Bulkley, Bishop & Woods, would be conclusive evidence against Bishop of the indebtedness of the firm, in a future suit against him for the recovery of such debt. Even if the decision in the case of Whatley v. Manheim & Levy, (3 Esp. Rep. 608,) can be considered as sound law, which I am not disposed to admit, it does not appear to be applicable to the present case ; as the party against whom the record in the former suit was offered in evidence in that case, was a party to such former suit, and had the opportunity to contest his liability as a partner, if no partnership did in fact exist between him and Levy. The vice chancellor was therefore right in the conclusion at which he arrived, that a decree in favor of the defendant Skinner in the present suit, to which Bishop is not a party, establishing the debt which is claimed against the firm, would not be evidence against Bishop in another suit, which might hereafter be brought against him and his copartners, for the recovery of that debt. It is also unquestionably true, as a general rule, that the record of a judgment or decree cannot be used as evidence against a party in another suit, who could not have availed himself of it if the decision had been the other way; or, in other words, a person who was not a party to the suit, so that the judgment or decree could not have operated against him by way of estoppel if it had been adverse to his interest, cannot avail himself thereof as res judicata in Ms favor, even as against a party to the former suit. There are some cases, however, in which, from the connection of the witness with the subject matter of the litigation, the decision of the cause in one way would necessarily have the effect to relieve the witness from all future liability, wMle a contrary decision would leave Mm exposed to a suit; although the record in the former suit, to which he was not a party, could not be given in evidence against him to establish his liability in the subsequent litigation. In such cases the witness is interested in producing a decision in the cause which will have the effect of shielding him from future liability. He is therefore incompetent to give testimony for the purpose of producing such a result, or m favor of the party who is seeking to obtain such a decision. In the language of the late Chief Justice Ewmg of New-Jersey, if the liability of the witness remains the same, whichever way the verdict may be, he is indifferent; but if in one event his liability is diminished, he is not a competent witness for that party, and to produce that event. (Harwood v. Murphy, 4 Halst. Rep. 215.) The cases of Bland v. Ansley, (5 Bos. & Pul. 331,) Keightley v. Birch, (3 Camp. Rep. 521,) Gardiner v. Seward, (2 Ycates’ Rep. 185,) Pendleton v. Speed, (2 J. J. Marsh. Rep. 508,) and Rogers v. Dibble, (3 Paige’s Rep. 238,) were all decided upon this principle; for in neither of those cases would a decision of the cause against the party calling the witness, have been any evidence against the witness, in a subsequent suit against him, as he was not a party; but in all of them a decision in favor of the party calling the witness, would have rendered it impossible that the witness should be made liable in any subsequent suit against himself, or such a decision would in some other way have benefited the witness who was rejected as incompetent.

In the case under consideration the witness, D. Woods, has given to Bishop a bond, to indemnify him against the payment of any of the copartnership debts; and he is now called as a witness against Skinner, for the purpose of showing that the debt claimed was the private debt of Bulkley, and was not due to Skinner from the firm of Bulkley, Bishop & Woods. The proper mode, therefore, of testing the competency of D. Woods as a witness, is to inquire whether Bishop himself could be called by the complainant, as a witness against Skinner, for this purpose. If the decree of the court should be in favor of Skinner establishing the debt claimed by him against the firm, or dismissing the complainant’s bill, so far as it seeks for a decree to bar the claim made by Skinner against the firm of Bulkley, Bishop & Woods, Bishop, in any subsequent suit brought againt the firm, would not be precluded from showing that Skinner’s demand was not against the copartnership, but against the defendant Bulkley, individually; as Bishop would not be estopped by a decree to which he was not a party. But if the complainant, by calling Bishop as a witness, could succeed in obtaining a decree in his favor, declaring that the defendant Skinner was not a creditor of the firm, and restraining him from attempting to enforce such a claim against the complainant, which is the relief asked for in the bill as to this part of the case, it would be impossible for Skinner ever afterwards to succeed in rendering Bishop liable for the debt against him and his copartners, or against him individually. For if the suit was brought against the firm, the decree would be a conclusive bar as against Woods, in whose favor it was made; and there could be no recovery against one partner in a joint suit, if the suit could not be sustained against the others in such a case. And if the. suit was brought against Bishop alone, he might plead in abatement that the debt for which the suit was brought, if any such debt was due, was one for which his former partner, Woods, was jointly liable with him. I am also inclined to think he might plead this fact in bar, in connection with the fact that the remedy of Skinner was barred, as against the copartner, by the decree which had been made in the previous suit. From this view of the case, the witness D. Woods was directly interested to give such testimony in the present suit as would have the effect to produce a decree in favor of the complainant against the defendant Skinner. The decision of the vice chancellor must therefore be reversed, as respects the appellant Skinner; and an order must be entered to suppress so much of the testimony of the witness, D. Woods, as relates to any claim of Skinner against the firm of Bulkley, Bishop & Woods. But the decision of the vice chancellor must be affirmed as to so much of the testimony of this witness as relates to the other matters in controversy in the cause. And neither party is to have costs, as against the other, on this appeal, or on the original application to the vice chancellor to suppress the deposition.


text:
    The Mohawk and Hudson Rail Road Company vs. Artcher and others.
    1836. April 19.
    The owner of land through which a private road or way is proposed to be laid out is entitled to a written notice, of the time and place of meeting of the jury of freeholders to'determine the question as to the necessity of such road or way. But where such owner upon a verbal notice merely, appears and contests the matter before the jury, without making any objection on the ground of a want of sufficient notice, he will be deemed to have waived the objection to the regularity of the proceeding.
    Neither a public, nor a private road or way can, under the provisions of the revised statutes, be laid out across the fixtures and erections upon the inclined plain of a rail road which are used for the drawing up or letting down cars, for the conveyance of merchandize or passengers.
    It seems a private road, or way, laid out through the lands of an individual, cannot be opened and used, until after the damages of the owner of the land have not only been assessed but actually paid by the person for whose benefit the road or way is laid out and opened.
    The court of chancery has jurisdiction to proceed by injunctionjwhere public officers, under a claim of right, are proceeding illegally and improperly, to injure or destroy the real property of an individual or a corporation, or where it is necessary to prevent a multiplicity of suits, although the defendants may be sued at law.
    This was an application by the defendant, M. Artcher, for the dissolution of an injunction. The bill alleged that the commissioners of highways of the town of Bethlehem, upon the application of the defendant, Artcher, had laid out and recorded a private road, or way, from a lot belonging to Artcher, across the ropes and fixtures of the inclined plain of the complainant’s rail way near its eastern termination at the city of Albany; and that the defendants were proceeding to open and use the same, which would be wholly incompatible with the use of the inclined plane of the complainants, for the transportation of passengers and produce. The bill also alleged that no legal notice was given to the complainants of the time and place of meeting of the jury of freeholders, to determine upon the question as to the necessity of such private road. The complainants upon the filing of their bill, duly verified by the agent of the company, obtained a preliminary injunction restraining the defendants from proceeding to open or use the road thus laid out. The commissioners of highways suffered the bill to be taken as confessed, the complainants having given them notice that no relief would be claimed against them individually. By the answer of the defendant, Artcher, he insisted that the using of the private road for the purposes for which it was intended, the drawing of sand across the fixtures of the inclined plane, would not interfere in any way with the beneficial use of the plane by the complainants. He also alleged that he gave a verbal notice to one of the directors of the rail road company of the meeting of the jury, who promised to inform the agent of the company thereof; and that such agent actually attended and was heard before the jury in opposition to the laying out of the road. The defendant, Artcher, also insisted that this court had no jurisdiction of the case ; that if the commissioners of highways had not exercised their discretionary powers properly in laying out the road, the appropriate remedy of the complainants was by an appeal to the judges of the county courts ; and that if the commissioners had no authority, under the statute, to lay out a road across the fixtures of the inclined plane, the complainants had a perfect remedy at law, by action of trespass.

      J. V. L. Pruyn & M. T. Reynolds, for the complainants.

      H. G. Wheaton, for the defendant Artcher.
   The Chancellor.

It is too late for the complainants to urge the objection here, that they had no sufficient legal notice of the time and place of the meeting of the jury of freeholders, as it appears they had actual notice, and their agent attended and was heard before the jury in opposition to the application. I am inclined to think that the complainants were entitled to a written notice of the time and place, and of the object of the meeting of the jury, at least six days before the time appointed for such meeting, by analogy to the forty ninth section of the title of the revised statutes relative to highways and bridges. (1 R. 8. 514.) But by appearing before the jury and contesting the right of the defendant, Artcher, to have the road laid out across the fixtures of the inclined plane, without objecting to the regularity of the notice, that objection may be considered as waived. (See Lansing v. Caswell, 4 Paige’s Rep. 519.) The provisions of the revised statutes relative to the laying out of private roads are very imperfect; but it is evident that it was never the intention of the legislature to authorize the opening of a private road, through the lands of one person for the benefit of another, until after the damages had not only been assessed but actually paid by the person for whose benefit such private road is laid out and opened. Indeed it may well be doubted whether the legislature has any power to authorize the taking of the property of one person for the mere purpose of increasing the value of the property of another, where the public interest will not be in any manner benefitted by the taking of such property, or by the uses to which it is to be applied. My opinion on this subject has been fully expressed, in other cases which have come before me, particularly in the recent case of Varick v. Smith, (5 Paige’s Rep. 127.) But as there maybe cases where a private road might be considered so far a public benefit as to authorize the legislature to exercise the right of eminent domain, on account of the benefit which the public may derive from the opening and the use of such road, I shall not put the decision of (his case upon the constitutionality of the law under which the defendants claimed the right to lay out the road across the complainants property. I shall therefore, proceed to consider the question whether the statute itself authorises the laying out either of a public or a private road across the fixtures of the complainants inclined plane.

In the case of Lansing v. Caswell, before referred to, I had occasion to give a construction to the 57th section of the article of the revised statutes relative to the laying out of public and private roads, (1 R. S. 514;) and I then came to the conclusion, that this section of the statute must be construed with reference to the situation and nature of the property to which the yard or fixtures on the proposed site of the road, or" high way, are appurtenant. The punctuation of the last half of the 57th section, in the authorized edition of the revised statutes, has somewhat obscured the sense, by substituting semicolons, in several places, instead of the commas which were used in the original text as passed by the legislature. This section, as originally reported by the revisors, extended the prohibition to fixtures and erections of every kind, as well as to buildings. But as the object of the revisors and of the legislature was to embody in the statute the principles of the decision of the supreme court, in the case of Clark v. Phelps, (4 Cowen's Rep. 190,) the language of the section was altered, by confining that part of the restriction to fixtures or erections for the purposes of trade or manufactures, so as to exclude fixtures and erections of a less meritorious character. At the time the chapter of the revised statutes relative to highways, ferries and bridges, was passed, (the fall of 1827,) there were no rail roads in this state, although the charter of this company had been granted the preceding year. It is not surprising, therefore, that the terms of this section of the statute should not be found to be exactly appropriate to the kind or class of fixtures or erections to which the fixtures and machinery of an inclined plane upon a rail road most properly belong. Perhaps, in this case, where the company is authorized by its charter to transport merchandize upon its inclined planes, the machinery erected and placed by the rail road company upon its inclined planes, for the purpose of drawing up and letting down such merchandize, as well as cars for the conveyance of passengers, may be considered as fixtures or erections for the purposes of trade; and as within the express terms of this prohibitory section of the statute. There can be no doubt, however, that this case is clearly within the spirit and intent of the prohibition of the statute against laying out roads and highways through buildings, fixtures, or erections of a certain description, where the benefit to be derived from the laying out of the road in that particular place bears no reasonable proportion to the injury and inconvenience which will be sustained by those through whose fixtures or erections the road is laid. Although the defendant, in his answer, swears that the laying out and using of this private road, for the purpose of carting sand across the complainants’ inclined plane, will not, in his opinion, interfere with the beneficial use of such inclined plane, or bo any injury to the complainants, the court cannot shut its eyes to the fact, of public notoriety, that, from the manner in which the fixtures upon an inclined plane are constructed, the use of such fixtures, for the purpose of letting down and drawing up trains of freight, or passenger carriages, is wholly incompatible with a general right to cross such inclined plane with carriages, or teams, as upon a public or private road. The question to be determined in this case is, not whether the defendant intends to use his private road at such times, and in such a manner, as to interfere with the complainants’ use of their inclined plane; but whether it is lawful for the commissioners of highways to lay out and open a road across and through the complainants’ fixtures on the inclined plane, which would legally authorize the public, or an individual, to cross the inclined plane at all times, and to cut down or prostrate such fixtures, to the extent of the width of such road, if they shall be found to interfere with such general right of crossing. I am satisfied that, upon a proper construction of the statute, the commissioners of highways of Bethlehem had no jurisdiction or authority to lay out a road of any kind across or through the fixtures upon this inclined plane; and that their proceedings are void.

Although the complainants might have lain by and permitted the defendants to open the road, and have then proceeded by suits at law to recover satisfaction for the injury, the cases of Belknap v. Belknap, (2 John. Ch. Rep. 463,) and Livingston v. Livingston, (6 idem, 497,) and the cases there referred to, show that this court has an undoubted jurisdiction to interfere by injunction, in such a case, where public officers are proceeding illegally and improperly, under a claim of right, or where the exercise of such a jurisdiction is necessary to prevent a multiplicity of suits at law. And the present case appears to be a proper one for the exercise of such a jurisdiction, as the act complained of is not a mere trespass, but an attempt to exercise a continued right of passing across and through the complainants’ fixtures upon the inclined plane, to the permanent and continued injury of their property. The motion to dissolve the injunction must therefore be denied, with costs.