text:
    J. W. & J. A. Williamson vs. N. S. Williamson & S. Hendrickson, Executors, &c.
    Where the interest or income of the testator’s residuary estate is bequeathed to a legatee for life, and no time is prescribed in the will for the commencement of such interest or the enjoyment of the use or income of such residue, the legatee for life is entitled to the interest or income of the clear residue, as afterwards ascertained, to be computed from the death of the testator.
    A legacy to a child whose support and maintenance is otherwise provided for by the bounty of the testator, like a legacy to a more distant relative, or to a stranger, is not payable and does not draw interest until one year after the death of the testator, where no time of payment is prescribed by the will.
    But alegacy to the widow, in lieu of her dower, draws interest from the death of the testator, where he has provided no other means for. her support during the first year after his death. And such a legacy does not abate rateably with other general legacies in case of a deficiency of assets.
    Where legacies are payable at the end of a year from the testator’s death, the legatee of a life interest in the residuary estate is not entitled to the whole interest on the amount of the general legacies for the first year. But the amount of the residuary estate at the death of the testator, for the purpose of settling the rights of the tenant for life and the remainder-man in the residuary fund, must be ascertained by taking from the estate such a sum for the general legacies as would if invested at the death of the testator produce the amount of such legacies at the end of the year, clear of expense; or by deducting five per cent from the amount of the general legacies and adding it to the capital of the residuary estate, and giving to the legatee of the life interest in such residue the income thereof from the testator’s death.
    Where a life estate is bequeathed in the testator’s residuary personal estate, with remainder over to others, it is the duty of the executors to have the fund properly invested so as to produce an income of at least five per cent; and if it is not so invested, they will be liable to the remainder-men for the capital of the residuary fund with the interest or income thereof from the death of the legatee for life.
    It is the duty of the surrogate upon the taking of an account, or upon any other proceeding before him which may be the subject of an appeal from his decision, to reduce to writing and preserve the evidence and the admissions of the parties, so far as to enable him or his successor to make a correct return of the facts if it shall be necessary to do so upon appeal. And no extraneous evidence can be received by the appellate court upon the hearing of the appeal to contradict the return of the surrogate.

      1837. March 7.
    This was an appeal from a decree of the surrogate of Kings county upon the settlement of the accounts of the respondents as the executors of Stephen B. Williamson. The testator died in November 1828, possessed of a large real and personal estate. By his will he devised to his sons Nicholas S., John, and James A., certain specific portions of his real estate, and the residue thereof he devised to James A. He also confirmed certain advancements which he had theretofore made to his daughter Susan, the wife of S. Hendrickson, and gave her in addition thereto, a legacy of $4000, payable out of the personal estate. He also gave to each of his sons John and Nicholas S. a legacy of $12,000, payable in the same manner. The testator also bequeathed to his wife the use of the residue and remainder of his personal estate, during her life or widowhood, with remainder to his three sons ; which bequest to his wife was declared to be in lieu of dower. The personal estate of the testator not specifically bequeathed amounted to something more than' $30,000, after the payment of debts and the expenses of administration; and the executors considering the pecuniary legacies as not due until the expiration of a year from the death of the testator, paid to the widow $2000 for the interest upon the fund during the first year, and paid her the income or interest upon the balance, after paying such legacies, from the expiration of the first year until the death of the widow in October, 1834. Shortly after the death of the widow two of the three sons, who were entitled to the remainder in such residuary personal estate, cited the executors to account before the surrogate. Upon the hearing before him he allowed the interest thus paid to the widow, and rejected some other claims made against the executors. And as the creditors had not been cited to produce their claims against the estate, the surrogate permitted the executors to retain $100, for the purpose of meeting such claims as might be exhibited and established within the time limited in the notice which was then being published. From this sentence or decree of the surrogate the parties who had cited the executors to account appealed to the chancellor, as to all these contested claims.

      J. A. Lott, for the appellants.

      D. Selden, for the respondents.
   The Chancellor.

The first objection to the account, as stated by the surrogate, is that he. has not charged the respondents with $1990 for the Howard Insurance stock, instead of $1890. As there is nothing in the return of the surrogate from which it can be legally inferred that this was an erroneous allowance, the appellants strictly are not entitled to have the decree modified upon the mere production of extraneous proofs in opposition to the return. It is the duty of the surrogate upon the taking of an account, or upon any other proceeding which may be the subject of an appeal, to reduce to writing and preserve the evidence and admissions of the parties, so far as to enable him or his successor to make a correct return of the facts, in case it shall be necessary in consequence of an appeal to a higher tribunal. In this case, as it is admitted by the counsel for the respondents that a mistake has occurred in the statement of their accounts to the amount of $100, that sum may be allowed upon a settlement of such account.

I think the surrogate was right in rejecting the claim for the grain used in the family by the widow immediately after the death of the testator and before the taking of the' inventory. It is not usual, even in favor of creditors, to claim an account of every bushel of grain or pound of provisions used by the widow and family of the testator from the very moment of his death. And in this case three out of four of those who were interested in the residuary fund were members of the family and got their share of the grain at the time it was used up in such family.

The children to whom pecuniary legacies were given were all otherwise provided for by the testator, so that the interest on their legacies was not wanted for their support. And as no time was prescribed in the will for the payment of such legacies, except that they should be paid as soon as convenient, the executors were right in supposing that they came within the general rule ; and that the legatees were not entitled to interest until the expiration of one' year from the testator’s death. The appellants’ counsel supposes that the bequest of the use of the residuary estate to the widow during her life or widowhood depends upon the same principle ; and that the whole income of the personal estate for the first year is to be added to the general residue, giving to her the interest on this accumulated fund, only from the expiration of the first year. To sustain this position the cases of Lowndes v. Lowndes, (5 Vez. 302,) Sitwell v. Bernard, (6 Idem, 520,) Gibson v. Bolt, (7 Idem, 89,) Stott v. Hollingworth, (3 Mad. Rep. 161,) and Tousey v. Hibbert, (1 Jac. & Walk. 308,) are cited. The first of these cases was a bequest of a specific sum, and not of the residuary estate. And it was there decided, overruling a dictum of LordAlvanley in a previous case, that a legacy to a wife did not stand upon the same principle as a legacy to a child j and did not therefore draw interest from the death of the testator unless so directed in the will. That case differs from the present in not being a bequest of a residue, and in not being given in lieu of dower, the provision made by law for the support of the wife after the death of the husband. The case of Sitwell v. Bernard only laid down the general rule that legacies draw interest from the end of one year from the testator’s death. But the question now under consideration did not arise there ; as there was an express direction in that case to accumulate for one year, and the question to be decided was whether the accumulation should then cease, so as to give the owner of the life estate the interest or income after that time. We have the authority of Lord Eldon himself for saying that was all that he intended to decide in that case, and that it is not an authority for the principle contended for by the appellants. (See Turn. & Russ. Rep. 238, 244.) The case of Gibson v. Bolt merely decides that where the testator directs one kind of property to be converted into another, and invested with the general residue in a particular manner, for the benefit of a legatee for life, with remainder over to another, the legatee for life is not entitled to the income until the conversion takes place, provided it is done within the year. But even in that case the decree gave the owner of the life estate the interest from the time of the conversion, which was less than a year from the testator’s death. And as to a part of the property, which from a defect of title could not be sold, a price was set upon it, and the tenant for life was allowed interest on that amount from the death of the testator. The case of Stott v. Hollingworth was substantially like the present, except that the persons entitled to the use of the residue for life were the sisters of the testator. And Sir John Leach there decided that the residue was composed of the capital and of the interest during the first year from the death of the testator ; which capital and interest constituted a fund upon which the legatee for life was to have the interest from the end of the year. The case of Taylor v. Hibbert was decided about two years later by Sir Thomas Plumer, upon the supposed authority of Sitwell v. Bernard. It differs from the present case only in the two facts, that there the residuary fund was to be converted into real estate for the use of the first taker for life, and that it was not a bequest in lieu of dower so as to give the owner of the life estate any peculiar claim on that account. There, as the owner of the life interest died before the conversion into real estate was actually made, it was decided that his representatives were only entitled to the interest on the fund after one year from the testator’s death.

There are several cases, not referred to by the counsel for either party on the argument, which it is necessary to consider, and which seem to conflict with some of the cases cited by the appellants’ counsel; particularly with the decision of Sir John Leach in Stott v. Hollingworth. In Fearers v. Young, (9 Vez. 549,) the bequest of the life interest to the wife of the testator was in the nature of a life estate in a general residue ; for it was a bequest of the interest of one half of his property to the widow during her life. A portion of the estate being peculiarly situated, in a continuing partnership, producing more than simple interest during 13 months from the death of the testator, and the profits of the partnership which accrued before as well as after the death of the testator being payable in one and two years after the dissolution, presented a complicated case in regard to the rights of the legatee for life and the remainder-man. But although Lord Eldon hesitated some time, saying it was not well settled whether the tenant for life was entitled to interest from the death of the testator or from a year afterwards, he finally came to the conclusion that the widow was in that case entitled to interest from the death of the testator, and not to the whole profits of the partnership ; and that to ascertain upon what sum the interest was to be computed, he held that a valuation must be put upon the testator’s interest in the partnership profits which had then arisen or might thereafter accrue ; taking into consideration also the times at which such profits would be payable under the partnership agreement. It is therefore an authority in favor of the allowing Mrs. Williamson the use or interest of the residuary fund from the death of the testator. The case of Angerstein v. Martin, (Tur. & Russ. Rep. 232,) came before Lord Eldon in 1823, subsequent to the decision of all the cases to which I have referred; The testator in that case devised his freehold estates to J. Angerstein for life, with remainder to his children in strict settlement; and as to his residuary personal estate he bequeathed the same to trustees, to be invested in the purchase of lands to be settled in the same manner, with authority to invest the fund in stocks, &c. until the estates could be purchased, the interest or income to go to the same person or persons to whom the rents of the estate would go if the purchase had been made. The tenant for life filed his bill within the year after the testator’s death, for the purpose of having the question decided whether he was entitled to the annual interest of the clear residue of the personal estate from the testator’s death, or whether the amount of such interest for the first year was to form a part of the capital of the general residue, and which was to be added to the same and invested. And upon a review of all the previous cases it was decreed that the interest from the death of the testator belonged to the tenant for life, and was not to be added to the residue for the benefit of those who were entitled to the estates in remainder in the property to be purchased. And in the case of Hewitt v. Morris, which came before Lord Eldon a few months afterwards, (Turn. & Russ. Rep. 241,) and which differed from the last case only in the fact that it was a bequest of a general residue in personal estate to be invested in the funds, or other securities, unconnected with any devise of real estate, a similar decision was made as to the interest during the first year upon that part of the property which was not wanted for the payment of debts or the other legacies. It may be proper to say also that it was stated in that case by Mr. Sugden that the decision of Sir John Leach, the vice chancellor, in Stott v. Holingworth, was appealed from and finally compromised. His decision must unquestionably be considered as overruled by these subsequent cases before Lord Eldon. In the more recent case of La Terrier v. Bulwer, (2 Sim. Rep. 18,) where the residuary estate was directed to be invested in stocks and public funds, or upon real securities, for the use of Mrs. La Terrier for life with remainder to her children, Sir Anthony Hart decided that the owner of the life estate in the .residuary fund was entitled to the interest or income from the death oí the testator, or so much of the residuary fund as was at his death invested upon the proper securities; and that upon so much as was after-wards invested within the year, she was entitled to the income thereof from the time when the investments were actually made. I find, however, that in the case of Amphlett v. Parke, (1 Sim. Rep. 280,) Sir John Leach still adhered to his opinion in the case of Stott v. Hollingworth, and decided this more recent case in conformity with that opinion.

The result of the English cases appears to be, and I have not been able to find any in this country establishing a different principle, that in the bequest of a life estate in a residuary fund, and where no time is prescribed in the will for the commencement of the interest or the enjoyment of the use or income of such residue, the legatee for life is entitled to the interest or income of the clear residue,» as after-wards ascertained, to be computed from the time of the death of the testator. All the cases which appear to conflict with this rule, except the two decided by Sir John Leach, which are no longer to be considered as authority, will be found to be cases in which the testator had directed one species of property to be converted into another, or the residuary fund to be invested in a particular manner, and had then given a life estate in the fund as thus converted or invested. In such cases it appears to be consistent with the will of the testator to consider the life interest as commencing when the conversion takes place, or the investment is made, either within the year or at the expiration of that time. But as a year is considered a reasonable time for the executor to comply with the testator’s directions as to the conversion or investment, the legatee for life cannot be kept out of the interest or income beyond that period» In the case under consideration, there is no direction for a conversion of the fund, or for the investment thereof in any particular manner, before the right of the widow to the use thereof for life was to commence. And as it appears that a great portion of the personal estate was in bonds and mortgages and other securities which were drawing interest at the death of the testator, there is no good reason for depriving her of the use of the residuary estate for an entire year.

But even if the general rule were otherwise, I think the fact that the wife’s life estate in the residue, in this case, is given in lieu of her dower, would be sufficient to take it out of the general rule, so as to give her interest from the death of the testator, as in the case of a legacy to a child having no other means of support from the bounty of the testator. Indeed a legacy to the widow in lieu of dower, is viewed in a more favorable light than a legacy to a child; the widow taking the bequest as an equivalent for her relinquishment of a right, and the child taking it as a mere bounty of the testator. For this reason the legacy of the wife given in lieu of dower does not abate rateably with others, if the fund is insufficient to satisfy all. (Heath v. Dendy, 1 Russ. Rep. 543. Davenhill v. Fletcher, Blunts Amb. 245.)

But although the surrogate’s decision was correct as to the widow’s right to the interest or income of the residuary estate from the death of the testator, the principle upon which such interest is computed is altogether erroneous. It was not the intention of the testator to give his wife the interegt or income of his whole personal estate until the debts and legacies should be paid, or for the term of one year, and then the interest upon the residuary estate after that time. But it was his intention to give her the use or income of the same residuary fund the capital of which was to be distributed to his three sons upon her death or re-marriage. The case of Covenhoven v. Shuler, (2 Paige’s Rep. 132,) and the authorities there referred to, settle the principle that w'here there is a general bequest of a residue of the testator’s personal estate for life, with a remainder over after the death of the first taker, the' whole residuary fund is to be invested for the benefit of the remainderman; and the tenant for life is only entitled to the interest or income of that fund.And to ascertain the amount of such residuary fund, so as to apportion the capital and the income properly between the remainderman and the tenant for life, the executor, upon settling the estate at the end of the year, must estimate the whole estate at what is then ascertained to have been its cash value, at the testator’s death, after paying all debts, legacies and expenses of administration and other proper charges and commissions. But in making such deduction' for legacies payable at a future day and which do not draw interest, the whole amount of the legacies is not to be deducted, but only such a sum as, if properly invested, would, at the time when the legacies become payable, have produced-the requisite sum exclusive of all expenses and risk of loss. The rule in England, as between the legatee for life and the remainderman, is to invest, or consider the fund as invested, in the three per cents; being two per cent less than-the legal rate of interest in that country. (Howe v. Earl of Dartmouth, 7 Vez. 137.) Upon the same principle, according to the legal rate of interest here, the income of a five per cent stock, which stocks can generally be purchased at about the par value, may be considered as a reasonable discount upon a legacy payable at the end of the year, for the purpose of ascertaining the value of the residuary estatesi the death of the testator. Five per cent upon the amount of the three legacies which were payable at the end of the year must therefore be deducted from the $2000 paid the widow; or, what is the same thing in this case, it must be added to the amount of the residuary estate as ascertained by the surrogate. This, with the $100 due on account of the Howard Insurance stock, will make the amount in the hands of the executors at the death of the widow, and for which they are now accountable, $4482,83. As it is admitted there are now no other claims against the estate, the $100 'which the executors were permitted to retain must be paid over. The only objection which can properly be urged to that part of the decree is that it did not direct the payment of the appellants’ shares of the amount retained, provided no claims were exhibited within the time limited by tiie notice.

I can see no good reason why the appellants should not have been allowed their share of the income which had arisen upon the residuary fund from the death of their mother 5 as it either was or ought to have been invested in stock or other securities producing an income of at least five per cent. The executors should therefore have been charged with five per cent thereon from that time ; as it was their fault if it was not properly invested. Although it may operate as a great hardship upon the executors to require them to account for the money improperly paid over to the mother in ignorance of her rights, the court is not at liberty to deprive her children of it, if they choose to insist upon their legal claims, although a very scanty allowance was made for her support out of this large estate. But if she left any property at the time of her death, the executors will have the right to recover back from her representatives the amount she has received beyond her share, it having been paid to her by mistake.

The executors having unquestionably acted in good faith; and this case presenting an important question of law for the consideration of the court, as to which the appellants have succeeded only in part, 1 think it is a proper case in which to direct their taxable costs upon the appeal to be paid out of the residuary fund in their hands. But as one of the executors is himself the owner of one third of the residuary fund, the appellant^ costs must also be paid out of that fund, so that he may bear his share of the whole costs of the appeal, as one of the residuary legatees.

The sentence or decree of the surrogate must be reversed or modified in conformity to- these principles ; and the decree must be without prejudice to the rights of the executors as between themselves, or as to then* rights as between them and their mother’s estate.


source: Caselaw Access Project

author: The Chancellor.

license: Public Domain

text:
    Hoffman vs. Tredwell and others.
    1837. March 7.
    Where a bill is filed for partition of real estate and for an account of the rents and profits thereof received by the defendants, and the suit afterwards abates by the death of the complainant, tile heir at law may apply by petition to revive the suit, so far as relates to the partition of the estate and the rents and profits subsequent to the descent to such heir, without joining with the personal representatives of the original complainant, who are entitled to the rents and profits which accrued before that time.
    And if the personal representatives of the decedent neglect to revive the suit so far as their interest is concerned, the defendants may proceed as in other cases where the representatives of a sole complainant neglect to revive the suit after his death.
    The bill in this cause was filed for the partition of real estate and for an account and payment of the complainant’s share of the rents and profits. After the cause was in readiness for hearing upon the pleadings and proofs as to a part of the defendants, and upon the bill taken as confessed as to others, the sole complainant died iptestate, E. H. Hoffman, her heiress at law, thereupon presented a petition to the vice chancellor, praying that the suit might be revived in the name of the petitioner as complainant. The vice chancellor, upon hearing the parties, made an order for the revival of the suit, so far as related to the rights of the petitioner in the real estate of the decedent as her sole heiress at law only, leaving the suit still abated as to so much thereof as sought an account of the rents and profits received by one of the defendants previous to the death of the decedent. From this decision of the vice chancellor, three of the defendants who had appeared in the cause appealed,

      W. Silliman, for the appellants.

      H. M. Western, for the respondent.
   The Chancellor.

Previous to the death of the complainant, the right to prosecute the suit for a partition of the land, and the right to an account and payment of her share of the rents and profits which had been received by one of the defendants exclusively, belonged to one and the same person, and might therefore be properly joined in the same bill. But upon her death the right to the rents and profits previously accrued was cast upon her personal representative, for the benefit of creditors or distributees; and the right to a partition of the land, and to the future rents and profits merely, belonged to the petitioner, as the heiress at law. It is evident, therefore, that the petitioner has no right to revive the suit so far as relates to the rents and profits accrued before the death of the decedent, which are a part of the personal estate. And upon the principle of the provision of the revised statutes authorizing a surviving complainant to proceed, in certain cases, notwithstanding the abatement of the suit as to a part of the original subject of litigation, (2 R. S. 184, § 108,) I think the petitioner was authorized to revive the suit so far as she only was interested in its further prosecution, leaving the parties interested in the other part of the litigation to revive it or not, as to the rents and profits, as they should think proper. If the defendants wish to put an end to that part of the litigation, they can proceed against the personal representative of the decedent under the 118th and 119th sections of the statute relative to the revival of suits in equity. (2 R. S. 185.)

The order appealed from must, therefore, be affirmed, with costs, to be paid to the respondent Eliza H. Hoffman. And the order of affirmance is to be entitled in the suit as revived in the name of the petitioner.

       See Ferrers v. Cheny, 1 Equity Cases Abridged, 4, pl. 11.


text:
    Arnold vs. Patrick and others. Patrick vs. Arnold and others.
    1837. March 7.
    Where a person who had contracted for the purchase of land, obtained a deed of the same, from the vendor, under an agreement that it should not be used until the balance of the purchase money then due was paid; Held, that this was a valid delivery of the deed to pass the legal title to the land to the vendee, subject to the vendor’s equitable lien for the unpaid purchase money; and that such unpaid purchase money must be paid in preference to a judgment against the vendee, which was a lien upon his estate in the land.
    And the vendor having again sold and conveyed the land and taken a bond and mortgage on such second sale, for a much larger amount than was due to him for the unpaid purchase money on the first sale, which mortgage and conveyance were recorded before the recording of the deed to the ■original purchaser, and the bond and mortgage were afterwards assigned to a person who was informed of the facts upon which the equitable rights of the parties depended; it was also held, that the assignee of the mortgage was only entitled to preference in payment out of the proceeds of the ' land over the judgment creditor of the original vendee, to the extent of the unpaid purchase money on the first sale with interest thereon.
    A deed of land, or other sealed instrument, cannot be delivered to the grantee or obligee himself as an escrow, to take effect upon the performance of a condition which is not expressed in the deed or instrument; and if so delivered the deed or instrument becomes absolute at law.
    The bill in the first of these causes was filed to foreclose a mortgage given by W. Ricketson to Jonathan Ricketson, and assigned by the latter to Arnold, the complainant; in which bill Patrick and others were made defendants, as having some right or interest in the mortgaged premises. Patrick answered the bill, and the same was taken as confessed against the other defendants therein. A cross bill was also filed by Patrick against Arnold, Howland Ricketson and S. Barker, claiming a preference in payment, out of the proceeds of the mortgaged premises, upon a mortgage given to him by H. Ricketson, on the facts stated in the cross bill and in his answer to the original bill. Arnold answered the cross bill, and it was taken as confessed against the other defendants. The solicitors for Arnold and Patrick then entered into a stipulation that the replica-lions to the answers in both suits should be withdrawn, and the causes heard as upon bill and answer; except that the answer and further answer of Arnold to the cross bill should be considered as a special replication to the answer of Patrick in the first suit.

      S. Stevens, for E. Arnold.
    Arnold, the assignee of Jonathan Ricketson, is entitled to all the equities of Jonathan Ricketson as to his whole mortgage. Patrick, the complainant in the cross bill, is not a bona fide purchaser for any new consideration, and therefore has no greater equities as between him and Jonathan Ricketson than George Ricketson. He stands in the place of George Ricketson, having acquired no greater, better or other title than George Ricketson had. Jonathan Ricketson has a superior equity to Patrick, and consequently Arnold has also a superior equity. Arnold is a bona fide purchaser for a new consideration actually paid, to the extent of $506,02. Should the chancellor be against us on these points, then we submit that Arnold’s mortgage is entitled to a preference to the extent of $271,43, which was paid on the prior mortgage to Thoi’p, which was a prior lien to that claimed by Patrick. Arnold should have a decree over against Jonathan Ricketson on his covenants for whatever sum (if any) is decreed to be a prior lien to the mortgage assigned by Jonathan Ricketson to Arnold.

      J. Buel, jr. for Jesse Patrick.
    The title to the undivided half of the premises described in the pleadings, and in the mortgages, passed from Jonathan to George Ricketson by deed of 20th August, 1829. There was a good delivery of this deed. (Shep. Touch. 58, 59.) Patrick’s judgment against George Ricketson was a valid lien on the premises conveyed to George Ricketson, And his mortgage executed by Howland Ricketson is also a valid lien on the premises, and entitled to priority. The deed from Jonathan to William Ricketson and the mortgage from William to Jonathan, are void as against Jesse Patrick, as at the time they were executed there was an adverse possession in George Ricketson. Arnold, the assignee of the mortgage, is in no-better situation than the mortgagee would have been, (1 Paige’s Rep. 131. 3 Cowen, 353. 4 id. 722.)
   The Chancellor.

The intention and effect of the stipulation between the solicitors'of the only two parties who have appeared in these causes, as I understand it, is, that the several matters stated or averred in the answer of Patrick to the original bill are to be taken as true, except so far as they are denied, put in issue or modified by the answer of Arnold to the cross bill; and that all the allegations and averments in the answer and further answer in the cross suit are to be taken as true. The facts of the case, therefore, so far as they are material to the determination of the rights of the several parties, are Substantially these: In the spring of 1825, Jonathan Ricketson, who was the owner of lot No. 15, in Thorp’s patent in the county of Clinton, contracted to sell ope undivided half thereof to Peter Keys, and the other half to George Ricketson, for $350 each. Keys’ half was paid for, and duly conveyed by J. Ricketson and wife to J. P. Hallock under some arrangement made between him and Keys, and the deed was regularly recorded. G. Ricketson went into and remained in possession of his half, and made improvements thereon, but did not pay the purchase money. In July, 1829, a judgment was entered up against him in favor of Patrick, on bond and warrant, for a debt previously due, amounting to about $1700. About a month after this judgment was entered, George Ricketson applied to Jonathan, who was at work in the field, to sign a deed for the premises, and brought with him a pen and ink and a deed filled up and his clerk to witness it; but Jonathan declined signing it until the purchase money was paid, with some other small claims, amounting in all to about $500, George said there were some men from the south waiting at his store who were ready and willing to let him have the money, and to sustain him in his business, as soon as they could see that he was to have a deed of the premises ; that the money- would be obtained upon showing them the deed, and that the deed should riot be used or put in force until the money was paid to Jonathan. The latter, therefore, signed the deed and delivered the same to George, or his clerk, telling him it was not to be acknowledged or recorded until the purchase money was paid j and requesting the clerk to take notice that it was only delivered conditionally. George did not procure the money or return the deed, but went off the next day to the south, leaving his business in the hands of his agents and workmen. He having been gone some time, and it being apprehended that he did not mean to return, William Ricketson, a brother of Jonathan, and without any authority, for aught that appears, took possession of the premises, and continued the business in which George had been previously engaged. In October, 1829, Jonathan sold and conveyed the premises to William, and took back a mortgage for $900 for the purchase money, both of which were duly recorded. But by mistake in drawing this deed and mortgage the whole lot was included, instead of the undivided half thereof. In January, 1830, J, Ricketson sold and assigned the mortgage to Arnold, for the whole amount; $506,02 of which was paid in cash, and the residue credited on a pre-existing debt—J. Ricketson covenanting that the whole amount was justly due and was a valid lien upon the premises. In April# 1830, the deed of August, 1829, to George Ricketson was proved by the subscribing witness and recorded; and in July, 1830, Patrick caused the premises to be sold upon an execution on his judgment, and became himself the purchaser thereof, at a sum much less than the amount due him. Shortly after this sale, George made an arrangement with Howland Ricketson to purchase Patrick’s right to the premises under the sheriff’s sale. Howland then went into possession, and in November of the same year he purchased the premises for $800, and took an assignment of the bid, and gave back a mortgage to Patrick for the purchase money, payable in six annual payments, with interest. In July, 1831, Howland Ricketson, with the assent of George, sold the premises to S. Barker for $1500, with warranty, and took back from him a mortgage for $1109,67, the balance of the purchase money not paid down; which deed and mortgage were duly recorded. It was verbally agreed between EL Ricketson and S. Barker that he might pay $800 of this mortgage directly to Patrick in satisfaction of his mortgage; and the times of payment were so regulated as to have that amount payable at the times when the payment on the mortgage to Patrick "would become due. After the time for redemption had elapsed, Patrick received a conveyance from the sheriff, and then executed a deed of confirmation, subject to his mortgage, for the purpose of carrying into full effect his sale to H. Ricketson. In November, 1831, H. Ricketson, through Barker, paid Patrick $189,34, for the first instalment on his mortgage ; and in November, 1832, Barker paid him the further sum of $180 thereon. The residue of Patrick’s mortgage" is still unpaid, for which he claims a preference over Arnold’s mortgage.

As both bills have been taken as confessed against all the parties except Arnold and Patrick, the only questions to be decided here are as to the priorities between the liens which- . Arnold and Patrick claim ; and the right of Arnold to a decree over against J. Ricketson upon his covenant of warranty, if his mortgage is not a lien upon the premises for the whole $900. From the facts stated in the answer of Arnold, in connection with those stated in the further answer as having -been-derived from the information of J. Ricketson subsequent to the assignment of the mortgage, which under the stipulation in this case must be taken to be correct, I am inclined to think that there was such a deliveryof the deed of August 1829 as was sufficient at law to pass the legal title to the premises in question ; subject however, in equity, to the payment of the unpaid purchase money. It is evident from the facts stated, that it must have been the intention of both parties that if the purchase money was paid the deed should take effect without any new delivery; as the grantee had, under the agreement of 1825, an unquestionable right to a conveyance of the premises upon payment of the amount due. Had this deed been entrusted to the clerk-merely, as an escrow, to be delivered to George upon condition that the purchase money was actually paid to the grantor within a certain prescribed time but not otherwise, the legal title would still have remained in the grantor, although the deed might have gotten into the hands of the grantee, with out a performance of the condition upon which it was to take effect. That does not appear to have been the case here; but the parties acted upon the erroneous supposition that the deed might be delivered to the grantee himself, upon the condition that it should not be proved and recorded if the purchase money was not paid, and that the legal title would not pass by such a delivery. The legal rule however is, as was insisted upon by the counsel for Patrick, that a deed or any other sealed instrument cannot be delivered to the grantee or obligee himself as an escrow, to take effect upon a condition not appearing upon the face of such deed or instrument ; but that if so delivered, it becomes absolute at law. (Coke Litt. 36, a. Touchstone, 59. Thoroughgood's case, 9 Coke’s Rep. 137, a.)

But in the view I have taken of this case it is not very material whether the legal title did or did not pass by the deed of August 1829, as the equitable rights of these parties are substantially the same in either case. If the legal title passed to George Ricketson by that conveyance, he took it subject to the equitable lien of the grantor for the unpaid purchase money, even if there had been no agreement to that effect as between the parties. (4 Kents Com. 2 ed. 151, &c.) Although a judgment is at law a general lien upon the legal estate of the debtor, it will in equity be so controlled as to protect the equitable rights of third persons against such legal lien, and also against purchasers under the judgment who are not entitled to protection, as bona fide purchasers without notice of the previous equitable claim. This was so held by Mr. Justice Thompson in the circuit' court of the United States for the southern district of NewYork, in the several cases of Lane and others v. Ludlow, adm’r, &c. in 1831, his manuscript opinion in which cases I have seen ; and it is now the settled law of this court. (See How’s case, 1 Paige’s Rep. 125 ; White v. Carpenter, 2 idem, 217 ; Veirsted v. Avery, 4 Idem, 9.) Even if Patrick had no notice of the circumstances attending the delivery of the deed, and that the purchase money was not paid, which is not alleged in his answer or pretended in this case, he is not entitled to claim protection as a bona fide purchaser ; as he bid in the property under his own judgment for an antecedent debt, paying no new consideration therefor. He therefore took the legal title under the sheriff’s sale subject to the equitable lien for the unpaid purchase money due to J. Richardson; which equitable right was vested in Arnold under the assignment of the mortgage. As William Richardson was in the actual possession of the premises at the time of the conveyance to him, and took the deed with the assent of George, the deed and mortgage were effectual to transfer the equitable interest to Arnold, as such possession was not adverse to the claim of Jonathan. George went into possession under his contract merely, which was in subserviency to the legal title of the person from whom he purchased 5 and as there is no evidence that he ever attempted to set up the deed in opposition to the agreement upon which it was received, the continuance of such possession did not constitute such an adverse holding as to prevent a transfer of whatever interest Jonathan still retained in the land.

On the other hand, Arnold took the assignment of the mortgage subject to all the equities which existed against it in the hands of the assignor. He knew that a deed had been made out and was to have been delivered upon the payment of the purchase money. And although he supposed the deed had not been delivered so as to pass the legal title, it is not alleged in his answer, and probably could not be with truth, that he was ignorant of the fact that George was entitled to a deed upon payment of the purchase money, according to the contract of 1825. At all events, the facts within his knowledge at the time he took the assignment were sufficient to put him upon inquiry as to what were the equitable rights of other parties in relation to the land. He therefore, as against this judgment creditor, acquired no greater interest in the land than J. Ricketson himself might have claimed as against George, under the contract of 1825. Under that contract George was in equity the owner of the land, subject to the vendor’s claim for the purchase money and interest. To that extent then and no further is Arnold entitled to priority over Patrick, who acquired the legal title under the sheriff’s sale. And if H. Rickertson, together with Barker, had put in an answer to the original bill, they might have insisted upon the residue of the proceeds of the sale of the mortgaged premises, if any, after paying the costs and this part of Arnold’s claim, and the balance due on Patrick’s mortgage. But as they suffered that bill to be taken as confessed, which was an admission that they had no equity as against the whole of Arnold’s mortgage, their rights, as to the surplus, if they had any, are gone, except as to what may remain after satisfying both mortgages and the costs.

The decree must therefore direct, in the first place, after paying the master’s costs and disbursements on the sale, that the costs of both parties in this suit be paid rateably out of the proceeds of the mortgaged premises. Then the amount due to J. Ricketson at the date of his deed of the 30th of August, 1839, (that is $350 and the interest from the spring of 1835, say the middle of April, as the precise time of the contract does not appear in the pleadings,) must be ascertained ; and that sum, with interest thereon from the date of that deed, must be paid to Arnold in part satisfaction of his mortgage. The amount due on Patrick’s mortgage with interest, after deducting the payments thereon as stated in the pleadings, must next be paid; and then the residue of Arnold’s mortgage. There must be a decree over against J. Ricketson, on his covenant of warranty, for the balance of Arnold’s mortgage if the same is not fully satisfied out of the proceeds of the sale. And the surplus of the proceeds of the sale, if any, is to be paid over to S. Barker. The decree is also to be without prejudice to the rights of Patrick, George and Howland Ricketson and S. Barker as between themselves in any future litigation, so far as their legal and equitable rights and claims are not provided for and satisfied by this disposition of the proceeds of the sale of the mortgaged premises.

       See Flagg v. Mann, 2 Sumner's Reports, 487.

        .) Lane vs. Ludlow, Administrator, &c.
      Dorr vs. The Same.
      Thompson, Judge. The material facts in each of these cases, so far as the questions now before the court are involved, are essentially the same, The bills are filed to obtain injunctions to restrain the plaintiff from proceeding at law on executions to obtain satisfaction of a judgment recovered by the defendant’s intestate against William Bayard, out of certain lands in the possession of the complainants, and which they had purchased of William Bayard before the judgments were obtained, though the deeds were not executed until afterwards.
      It is admitted that such contracts w.ere made between Bayard or bis agent and the purchasers, which, together with the part performance on the part of the purchasers by taking possession and making valuable improvements before the judgment against Bayard was docketed, as to constitute valid contracts for the land within the statute of frauds, and entitle the complainants to demand conveyances according to their contracts. Deeds have been executed since the judgment. No part of the consideration money has been paid, but bonds and mortgages given to secure the purchase money, according to the terms of the contracts. The complainants offer to pay the money into court upon being protected against the judgment. William Bayard died insolvent, and his executors are made parties defendants, and submit to the court whether the proceeds of the bonds and mortgages ought not, to be paid to them to be distributed among his creditors in due course of administration.
      It cannot be denied but that the legal title was in Bayard when the judgment was obtained against him, and that, in a strict legal view of the case, the judgment became a lien on the land. But the purchasers had a complete prior equitable right to the lands; and the question is whether a court of equity will protect such equitable rights against a strict technical legal right. And I think it will in cases like the present, where justice can be done both to the judgment creditor and the purchaser. The purchase money has not been paid, and there is no suggestion but that the sale was for the Ml value of the land. The judgment creditor is therefore equally benefited by taking the purchase money as he would be by executing his judgment against the land. It is not an unusual course in courts of equity to control the effects of judgments obtained subsequent to a contract for the sale of the lands, although the judgment may be a legal lien. (3 Ves. Jun. 576. 2 Wash. C. C. Rep. 78.) And the reason sometimes assigned why courts of equity will establish an agreement to sell land against a judgment creditor, is that the judgment, although a lien, is not a specific lien on the land : that is, the creditor did not go on the security of the land, but trusted to the general credit of the debtor and his estate. And in equity general creditors are considered bound by a particular equity, and are not so much favored as one who has obtained a specific lien, on the faith of which he advanced his money. (1 Peer Wm. 276.) The view which a court of equity takes of such agreements to sell lands is that the seller becomes a trustee for the purchaser. In the case of Finch v. Earl of Winchehea, (1 Peer. Wm. 278,) it was laid down arguendo, and which is stated to have been admitted and affirmed by the lord chancellor, that if a trustee confess a judgment, though at law it is a lien upon the estate, yet in equity it cannot affect it, because the estate in equity does not belong to the trustee but to the cestui que trust; that if one articled to purchase an estate, and paid his purchase money, and afterwards the person who agreed to sell acknowledged a judgment to a third person who had no notice, yet this judgment should not in equity affect the estate, because from the time of the articles and payment of the money, the person agreeing to sell would become a trustee for the purchaser. Lord Chancellor Cowper, in pronouncing his opinion, seems in some measure to qualify the rule, but not so as to affect its application to the case now before the court. Articles made, says he, for a valuable consideration, and the money paid, will in equity bind the estate, and prevail against any judgment creditor, mesne betwixt the articles and the conveyance. But this must be when the consideration paid is somewhat adequate to the thing purchased ; for if the money paid is but a small sum in respect of the value of the land, this shalj not prevail over a mesne judgment creditor.
      The case of Thompson v. Edelin, (2 Harris & Johnson, 64,) decided in the court of appeals of Maryland, is directly in point. It arose upon an application for an injunction to enjoin proceedings on a judgment and execution at law; and the doctrine laid down by the court is, that a contract for land bona fide made for a valuable consideration, vests the equitable interest in the vendee from the time of the execution of the contract, although the money is not paid at that time. When the money is paid according to the terms of the contract, the vendee is entitled to a conveyance. And a judgment obtained by a third person against the vendor, mesne the taking of the contract and the payment of the money, cannot impair or defeat the equitable interest then acquired, nor is it a lien upon the land to affect the right of such cestui que trusts. I have not before me the Maryland statute with respect to the Ken of a judgment at law, but presume it is substantially the same as the statute of this state. Here the judgment is not considered as transferring any title to the judgment creditor, but only as creating a general lien or security on the land of the debtor. (Matter of Howe, 1 Paige’s Rep. 128.) And in the Maryland case above referred to, it is said the judgment is a lien on the land of the debtor, and attaches on it as a fund for its payment, but the legal estate in the land is not vested in the judgment creditor.
      I am accordingly of opinion, that the complainants respectively, on paying into court the purchase money and interest, are entitled to protection against the judgment, and that the injunction in each case must be made perpetual.
      And I can see no ground, upon which the executors of William Bayard are entitled to this money, in preference to the judgment creditors, against whom the bills have been filed. The executors submit to the court whether this money ought not to be paid to them, to be distributed among the creditors of William Bayard, in due course of administration. But no facts are placed before the court shewing the nature or character of the debts or any thing from which the court can judge of and determine the rights of such creditors. There does not appear at all events to be any other judgment creditors. The money must accordingly be paid over to the administrator named in these proceedings.
      The case of James M. Sorley differs from the others only in this respect, that the purchaser, instead of giving a bond and mortgage to secure the purchase money, actually paid the same to William Bayard, on receiving the deed, and after the judgment obtained against Mr. Bayard; which brings the case precisely within that of Thompson v. Edelin, (2 Har. and John. 64,) and which rests on the same principles that governed the decisions in the case of Finch v. The Earl of Winchelsea, (1 P. Wms. 278.)
      The injunction in the case of Sorley must therefore be made perpetual, without requiring the complainant to make any further paymentfor the land purchased by and conveyed to him.

       See Hatchell v. Cremorne, 2 Lloyd & Goold’s Reports, Tempore Plunket, 236.


text:
    Robertson vs. Wendell.
    1837. March 7.

    Wheré securities belonging to a very aged and infirm man were placed by him in the hands of tbe defendant for safe keeping, and to receive the monies thereon as they were voluntary paid for the complainant’s use, and the defendant had been guilty of no negligence or default except a neglect to answer a letter of the complainant’s solicitor, requesting a statement of the fund; Held, that there was no reason for charging the defendant with the costs of the suit for the recovery of the securities in his hands.
    This was an appeal from so much of the decree of the vice chancellor of the third circuit as related to the general costs of the cause. In 1829 the complainant, an old man of eighty years of age, a neighbor of the defendant, left with him several bonds and mortgages and other securities, for safe keeping merely, and to receive payments thereon when the same were voluntarily offered, and to retain the monies until called for. Several sums were received by the defendant on these securities, and deposited in the bank, in -his own name, where he always had a deposit more than sufficient to pay the amount due to the complainant; which monies were always paid by checks upon the bank whenever called for by the complainant. In September, 1834, the complainant having then removed to Upper Canada, he gave to the defendant a power of attorney authorizing him to make collections of his debts, &c„ and to -reinvest the monies in bank stock, or on bonds and mortgages? but to leave uninvested and subject to the complainant’s order so much as he might want from time to time for his support, or for the payment of his debts, &c, After the giving of this power, the defendant received and deposited in bank as before, $1700, and paid over to the complainant at different times as called for, about $1400 thereof. When the last payment of $400 was made to the complainant, in May, 1835, the latter requested a statement of the securities in the defendant’s hands, which the defendant promised to make out for him, A day or two after, he received a letter from the complainant’s solicitor in Albany, requesting a statement of the securities in his hands. Which letter the defendant answered, promising to make out and send a statement thereof, but neglected it between three and four months. In the meantime he remitted other monies to the complainant which were received by him. In August, 1835, and without any further communication between the parties, or the solicitor and the defendant, the bill in this cause was filed for an account of the trust | and charging the defendant with fraud and a misapplication of the funds, and with having used the complainant’s monies improperly for his own private purposes and emolument. The answer of the defendant denied the whole of the charges of the bill, except as to the mere neglect to furnish the statement required of him by the solicitor. The defendant stated in his answer, however, that he learned from the agent through whom he made the last payment to the complainant, that he was utterly incapable of transacting business or of taking care of himself or his property, and that it was necessary his relations should adopt measures to secure his property for his support, as he would dissipate it if it came to his hands, which information the defendant believed to be true ; and that for this reason and from other information derived from the relatives of the complainant, he the defendant had been unwilling to pay over the balance or to deliver up the securities in his hands unless he could be indemnified for so doing. And he offered to bring the monies and securities into court to abide its order and decree respecting the same. A replication was filed to the answer of the defendant, but no evidence was taken on either side either as to the state of the complainant’s mind or as to the representations which had been made to the defendant respecting the same. A reference was directed to a master to ascertain what compensation the defendant was entitled to for his services. And upon the coming in of the report, a decree was made for the payment of the balance to the complainant and for a delivery of the securities, and charging the defendant with the complainant’s costs.

      S. Stevens, for the appellant.

      A. Taber, for the respondent.
   The Chancellor.

Under the circumstances of this case, I think the decree was clearly wrong in charging the defendant with costs; and the only doubt I have is upon the question whether the defendant is not entitled to the costs of his defence, to be paid out of the fund. The conduct of the defendant in relation to the trust has been perfectly fair and blameless, except in the single point of neglecting to furnish the solicitor with a statement of the securities in bis hands, within a reasonable time after the receipt of his letter. But as that letter did not contain any request to have the securities delivered over with a view to close the trust, I think a bill should not have been filed and this unnecessary expense made without some further communication with the defendant on the subject. The facts stated in the answer, as to the information received by the defendant respecting the situation of the complainant, in connection with his very advanced age, would of themselves have been sufficient to justify the defendant in declining to deliver over the property to him, except under the direction of the court. although the trustee might have been misinformed as to the fact. But as a replication was filed to the answer, and as there is no evidence in the case to show the age of the complainant or that there was any circumstance from which the defendant had any reason to doubt his capacity to do business, the defendant must lose the benefit of this part of the answer. I shall, therefore, though with much hesitation, affirm so much of the decision of the vice chancellor as refuses costs to the defendant. Indeed, it is somewhat doubtful whether the appeal is broad enough to reach such a claim.

So much of the decree as orders the defendant to pay costs to the complainant must be reversed, with costs.


text:
    Varick and others vs. Briggs and others.
    Declarations of a person under whom one of the parties in the suit claims title, by a conveyance made subsequent to the declarations, may be given in evidence by the adverse party, to show that a conveyance, under which such adverse party claims title to the same premises, had been duly executed and had been fraudulently surrendered to the grantor and destroyed.
    If a purchaser with notice of a prior unregistered deed, or other claim upon real estate, afterwards conveys the same to a subsequent bona fide purchaser who has no such notice, the latter is entitled to protection against the prior equitable claim to the property.
    And a purchaser with notice, from a prior purchaser who was entitled to protection as a bona fide purchaser without notice, is himself entitled to protection against the previous equitable claim which was invalid as against his grantor.
    A statute requiring all deeds of real estate executed previous to the passing of the statute, to be recorded within a limited period, and declaring them, if not so recorded, to be invalid as to subsequent bona fide purchasers, is binding upon the grantees of such deeds as were in existence and in a situation to he recorded subsequent to the passing of the act and within the time prescribed.
    But a retrospective statute, the immediate and necessary efibet of which is to destroy or materially impair a previous vested right, under a conveyance or contract made before the passage of such statute, is inoperative and void as to such vested right.
    In giving a construction to a statute, such an interpretation should be given to the language used to express the intention of the legislature as will, if possible, make the provisions of the statute consistent with reason and justice.
    1837. March 7.
    Where a party who has previously conveyed his title to land, again conveys the same land to another with warranty, who afterwards mortgages the premises, the mortgagee is entitled to the benefit of the covenants of. warranty in the deed, so far as is necessary to secure, the'payment of the , mortgage debt; the mortgage to that extent being an assignment of the covenants, which run with the landl
    This was an appeal from a decree of the vice chancellor of the fourth circuit. In July, 1801, John Tibbitts vyas the owner of 9600 acres of land in the town of Lisbon, in that part of the county of Oneida which is now the County of St. Lawrence. On the 9th of November, 1810, he deeded to Wesson Briggs, whose first'wife was a daughter of Tibbits, lot No. 3 of the subdivisions of that tract, containing 1000 acres, with covenants of seizin and warranty. This deed was duly .recorded a few days after its execution.. And in February, 1822, Briggs being in possession of the premises as the ostensible owner thereof, he and his second wife mortgaged the same to Richard Varick for $3000 and interest; which mortgage was also duly recorded. Colo"nel Varick died in 1831, and in the month of February of the next year Briggs also died, leaving five sons, the children of his first wife, his heirs at law.' The bill in this cause was filed in 1832, by the executors of Varick, to foreclose the mortgage ; and the widow and heirs of Briggs together with several subsequent incumbrancers were made parties defendants. The children of Briggs answered the bill, and it was taken as confessed against the widow and the other defendants. By the answer the giving of the mortgage was admitted; but these defendants denied that their father w;as seized of the premises- in fee, or that he had any thing more than a. life estate as tenant by the curtesy at the time of the execution of the mortgage. On the contrary, they alleged" that their grandfather, John Tibbitts, being the owner of the premises, in July, 1801, conveyed the same, except 200 acres thereof, to Mrs. Briggs, their mother, by deed of gift; he being then the owner of a large real and personal estate and wholly unembarrassed; that their father and mother being dissatisfied because he had not conveyed as much land to Mrs. Briggs as he had given to some of his other children, that deed was given up in August, 1802, and John Tibbitts then gave to Mrs. Briggs a new conveyance in fee for the whole 1000 acres ; that their mother died seized of the whole lot in the spring of 1810, by which event the title to the premises came to them as her heirs at law, subject to the life estate of their father therein as tenant by the curtesy; and that in the fall of the same year while they were all minors and incompetent to protect their rights, their father persuaded John Tibbitts to take back the conveyance which was given to their mother in 1802 and to give him a new deed of the premises in his own name.
    A replication was filed to the answer, and parol evidence was given of the existence and contents of the two deeds from John Tibbitts to his daughter Mrs. Briggs; they not being found among the papers of Tibbitts, who died in 1817, or among the papers of Briggs, and neither of them having been recorded. The cause was heard upon pleadings and proofs as to the defendants who had answered. The vice chancellor decided that the deed to Mrs. Briggs referred to in the answer of the defendants was fraudulent and void as against the complainants, and that their mortgage was a valid and subsisting lien upon the premises. And upon the coming in of the master’s report ofthe amount due, the usual decree for a foreclosure and sale was entered. From this decision the defendants, who were the heirs at law of Mrs. Briggs, appealed to the chancellor.

      D. Cady, for the appellants.
    The proof of the loss or destruction of the deeds to Polly Briggs was sufficient to authorize evidence of their execution and contents. The declarations of Wesson Briggs were evidence against the complainant. Briggs at the time of making the declarations was in possession. They were in relation to his title, and the complainant claims under him. (4 John. R. 234.) The question of notice does not arise in this case, unless it be first shown that the deeds to Polly Briggs are to be regarded as fraudulent because not recorded. The deeds to Polly Briggs are not within the spirit and meaning of the act of 12th April, 1813, (1 Rev. Laws, 270;) and the omission to record them did not "therefore render them fraudulent and void as against the complainant. When the deeds were executed, there was no law in existence requiring them to be recorded. The act of 1813, as to these deeds, was unconstitutional. The legislature had no power to require them to be'recorded under the penalty of forfeiture of the estate conveyed by them. If the deeds were lost, it was impossible to record them. No, act of the legislature can be supposed to require an impossibility. The loss or destruction of the deeds did not impair the title of the grantee or of the heirs at law. (19 John. R. 82, 3. 20 Id. 479.) Many cases within the letter are not'within the spirit of a statute. (4 Bac. Ab. 635. pl. 12.) A statute against common right or reason, or repugnant or impossible to be performed, is void. (Idem, 648, pl. 42.)

      D. Wager, & C. A. Mann, for the respondents.
    All the testimony in relation to the execution and contents of the deeds to Polly Briggs should be expunged^ The loss or destruction of these deeds was not sufficiently proved, to entitle the defendants to give evidence as to their execution or contents. (16 John. Rep. 193.) The testimony as to the conversations of Wesson Briggs and John Tibbitts is merely hearsay and should be expunged. The complainant was neither a party nor privy to these conversations, and cannot therefore be bound by them. The complainant took his mortgage without any knowledge of the transactions between the mortgagor and Tibbitts, or of the prior conveyance .to Polly Briggs; his lien cannot therefore be impaired. The complainant comes within the rule, that a person purchasing without notice from one who has notice, shall" be equally protected as if no notice ever existed. (1 John. R. 573,4. 2 Vernon, 386.) Varick’s mortgage was recorded prior to any knowledge of the deed to Polly Briggs, and the mortgagor at the time of the execution of the mortgage was in possession under a perfect valid title. The complainant is to be regarded as a subsequent bona fide purchaser for a valuable consideration without notice. (14 John. R. 407.) Besides, the complainant comes within the provisions of and is protected by the registry act. (1 Rev. Laws, 370, §4.)
   The Chancellor.

The first question presented by this case is as to the right of the defendants to give in evidence the declarations of John Tibbitts and Wesson Briggs as to the giving up the alleged deed of 1802. The declarations of Tibbitts, after he had conveyed to Briggs in 1810 with warranty, are not admissible in evidence for any purpose whatever, as against a person claiming title under that conveyance. The declarations of Briggs, however, which were made previous to the giving of the mortgage to Varick, and while he was in possession claiming title to the premises under the deed of 1810, are competent evidence against any person claiming under or through him by a subsequent conveyance, to show that the premises had been previously conveyed to his wife, and to show what had become of her deed. (Corbin v. Jackson, ex dem. Garnsey, 14 Wend. Rep. 619.) In this case the declarations of Briggs, when taken in connection with the testimony of Elisha Tibbitts and of the subscribing witness to the deed of 1810, establish the fact that there was a deed from J. Tibbitts to Mrs. Briggs for the whole lot in 1802, and which deed was either destroyed at the time the new deed was given in 1810, or was delivered up to Tibbitts to be cancelled. And the testimony of Conant and wife and of the widow of Briggs was sufficient evidence of the loss or destruction to authorize the introduction of parol proof of the existence and contents of both deeds to Mrs. Briggs. The contents of the first deed are established by the testimony of two witnesses, and its precise date is ascertained by a reference to the deed to Elisha Tibbitts which was executed at the same time. The date of the other deed becomes material in reference to the recording acts: and I shall have occasion to advert to the testimony on that subject more particularly hereafter.

The next question that presents itself is as to the effect of the recording acts upon the rights of the parties under these severa! conveyances. The counsel for the defendant supposes that at the date' of the deed of July, 1801, the premises were in the county of Clinton, which was not a recording county. But by a reference to the statutes, it will be found that af the date of that deed the premises were still in the county of Oneida, and that it was necessary to have the deed recorded agreeaby to the act of April, 1798, to protect the title against subsequent purchás.ers and mortgagees. The revised act of 1801 for dividing the state into counties was passed the 3d of April in that year, and by that act, what is now the county of St. Lawrence was taken from Oneida and annexed to Clinton, which was not a recording county. (2 R. L. of 1801, p. 5.) The revised act concerning the proof and recording of deeds was passed on the 6th of April, 1801. And the counsel on both sides appear to have supposed that these acts took effect from their date, and were to control the operation of th'econveyance executed in July of the same year. But by the general repealing act of the 8th of April, 1801, (1 R. L. 619,) the revised acts were not to take effect or be in force until the first of October, and the repeal of the former statutes was not to affect any act done, right accrued, &c. previous to that time. The decree of the vice chancellor was therefore right in declaring the deed of July, 1801, fraudulent and void as against Varick’s mortgage ; as that deed was not recorded before the recording of the deed of 1810, under which the mortgagee claimed, as required by the act of April, 1798. The fact that Briggs had notice of the unrecorded deed' of July, 1801, at the time he took the subsequent deed to himself, does not deprive the complainants of the character of bona fide mortgagees claiming under the recorded deed of November, 1810. At the time Col. Varick took his mortgage, in 1822, Briggs had a recorded title to the premises which was apparently valid; and as there was no prior conveyance on record from. J. Tibbitts which was inconsistent with that record title, Varick was not bound to inquire whether there had been any such conveyance from Tibbitts previous to October, 1801, and while the lot continued within the recording county of Oneida. For if a purchaser who has notice of a prior unregistered deed, or of a fraud or trust or any other previous claim upon the estate purchased by him, afterwards conveys or mortgages the property to another who has no such notice either actual or constructive, the latter is entitled to protection as a bona fide purchaser or mortgagee. (Ferrars v. Cheny, 2 Vern. Rep. 384. Jackson v. Given, 8 Johns. Rep. 137.) And the rule is the same where a purchaser without notice afterwards conveys to another who has notice ; for otherwise a bona fide purchaser might be deprived of the power of selling his property for its full value. (See Bennett v. Walker, 1 West’s Rep. 130; Jackson v. M’Chesney. 7 Cowen’s Rep. 360.)

At the time of the giving of the deed of 1802 the premises were in the county of St. Lawrence, which was taken from Clinton and erected into a new county by the act of the third of March, 1802. (3 Webster’s ed. of Laws, p. 5.) If the act of April, 1798, which in terms applied to all lands situate in the county of Oneida at the time of passing that act, had not been repealed, as to all future conveyances of lands in the now county of St. Lawrence, at the time that tract of country was taken from Oneida and annexed to Clinton, it might very reasonably have been contended that deeds executed after the first of October, 1801, of lands situated in that part of Clinton county, must still be recorded in the clerk’s office of the county where such lands were situated at the time of the execution or recording of such conveyances, in order to render them valid as against subsequent purchasers and mortgagees. And such I believe is the construction which has been given to the recording acts, where a recording county has been divided without making any new provision as to the recording of future conveyances. But as the act of 1798 was repealed on the first of October, 1801, and the new recording act, which was substituted in the place thereof as to all future conveyances, only applied to the county of Oneida as organized by the act of the 3d of March, 1801, there was no recording act which was applicable to any conveyances of the premises in question, except mortgages, between the first of October, 1801, and the passage of the act of April 10th, 1805. (4 Webster’s ed. of Laws, 301.) By the latter act all the provisions of the 4th section of the recording act of 1801 was extended to the county of St. Lawrence; and all conveyances of lands in that county, made after, the first day of October, 1802, were required to be acknowledged, proved and recorded before the first of January then next, in the manner directed in such fourth section. As this act allowed a reasonable time for the recording of conveyances which had then been given, there cannot be any constitutional objection as to its validity in reference to deeds .that were then in existence, and which the grantees in such deeds, or those claiming under them, might have procured to be recorded by the exercise of reasonable diligence within the prescribed period. And the fair construction of that act is, that those deeds to which it refers would be fraudulent and void as against subsequent purchasers and mortgagees, if not so recorded, unless they had been destroyed or lost previous to the passing of the act; or unless a compliance with the directions of the act was impracticable for some other reason. The provisions of the act of 1805 were probably intended to cover the whole period between the time when the revised laws of 1801 went into operation, and the time of the passage of that act; so as to place the titles of lands in that county in the same situation as if they had continued to be in a recording county from the first of February, 1799, when the recording act of 1798 first went into effect as to lands then in the county of Oneida. , But by some inadvertence the act of 1805 was made to refer to the first of October, 1802, instead of the first of October of the previous year when the revised laws went into effect. One entire year was therefore left unprovided for by that act. Hence it' becomes important to ascertain whether the last deed to Mrs. Briggs was executed during that period § for if it was executed after the first of October, 1802, there is no excuse for a non-compliance with the requirements of the act of 1805, as the grantee was alive and the deed was in existence for several years after the passage of that act,

Elisha Tibbitts, who drew the deed of 1802, and swears •positively to its execution and delivery, says it was done in the month of July or August of that year as near as he can recollect. This of itself would not be sufficiently certain as to time, in a case where the defendants are proving the execution of a lost instrument, to show that it might not have been a month or six weeks later; which would bring the deed within the provisions of the act of 1805. But there are some circumstances testified to, which settle it beyond a reasonable doubt that the deed must have been executed previous to the month of October. B. Pierce swears that the new deed was given, and the old one delivered up when Benjamin Tibbitts, who resided in Troy, was at Lisbon ; at which time deeds from John Tibbitts to some other members of his family were also executed. And Mrs. Conant, one of the daughters who then lived in Troy, testifies that her brother, Benjamin Tibbitts, brought her deed from her father and delivered it to her, on his return from St. Lawrence, about the first of September, 1802; which deed was made an exhibit before the examiner. She also swears •that Benjamin Tibbitts died on the 11th of September in the same year. For these reasons I think the deed of 1802 to Mrs. Briggs is taken out of the operation of any recording act which was in existence previous to November, 1810, when it was given up or destroyed by the father of the defendants during their minority, and after their right to the land as heirs of their mother had become vested by her death. The mortgage to Varick, therefore, covered nothing but the life estate of their father as tenant by the curtesy, and a claim against the estate of John Tibbitts, under the covenants of warranty contained in the deed of 1810, (of which covenants the mortgage was an assignment, so far as was necessary for the security of the mortgage debt,) provided the title of the defendants is not overreached by the retrospective operation of the 4th section of the revised act of 1813 concerning deeds. (1 R. L. 370.) That question I shall next proceed to consider.

The reasonable presumption from the facts in this case is, that the deed of 1802 was destroyed at the time of the execution of the new deed to Briggs ; so that it was impossible to record it at the time of the revision of the laws in 1813. For Briggs himself could not have obtairied the benefit of the new deed, so as to enable him to defraud his children oqt of the land to which they were entitled as the heirs of their mother, if that deéd had been permitted to remain in existence so that it might come to their possession at some future period. And as Tibbitts conveyed to Briggs with full covenants of warranty and of seizin, it was for his interest also to destroy the evidence of the previous conveyance to his daughter; otherwise he or Ids estate might be made liable to Briggs or his grantees on the covenants in the deed of November, 1810. And this presumption that the deed of 1802 was destroyed when the new deed was given, is much strengthened by the fact that it was never seen or talked of in the family of Briggs,’nor was it found among his papers after his death; neither was there any trace of it among the papers of Tibbitts at his death, a very few years after the new deed to Briggs was executed and recorded, Even if the 4th section of the act of 1813 was intended to reach such a case, I have no hesitation in saying that a retrospective statute, the immediate and necessary effect of which must be to destroy or materially impair a vested right under a previous contract or conveyance, is inoperative and void. In construing statutes, however, it is not reasonable to presume that the legislature intended to violate a settled principle of natural justice or to destroy a vested title to property. Courts, therefore, in construing statutes will always endeavor to give such an interpretation to the language used as to make it consistent with reason and justice. The section of the act of 1813, now under consideration, was undoubtedly framed by the revisers upon the supposition that all conveyances of lands which were then within the limits of any of the counties mentioned in that section, had at all times been subject to the recording laws, subsequent to February, 1799. Indeed, it appears by their table of counties that they acted under the erroneous impression that St, Lawrence county was erected from Oneida. Their attention, therefore, was not called to the fací that the territory of which St. Lawrence was composeel was annexed to the county of Clinton for about five months, previous to its being set off into a seperate county; by which, for a time, it was taken out of the operation of the recording act, which would have continued to apply to it if it had been taken immediately from Oneida and formed into a new county. (See 2 R. L. of 1813, p. 45.) This section, therefore, was not intended to be retrospective in its operation, but only to cover the case of deeds that ought to have been recorded under the previous laws and which had not then been recorded. But as the deed in question was not required to be recorded by any previous law, and was not in existence at the time of the passing of the act of April, 1813, it was in no way affected by the provision of that act, as such a case was never contemplated by the legislature. They certainly could not have intended to declare the deed under which these defendants had derived their title to be fraudulent and void, merely because they had not done an act which they were not bound to do previous to that time, and which it was then impossible for them to do afterwards. 1 am, therefore, obliged to declare that the deed of 1802 conveyed a valid title to Mrs. Briggs of the premises in question; which title was not divested by the subsequent conveyance to Briggs himself; and that this deed of 1802 is not fraudulent and void as against the complainants. The decree appealed from must therefore be reversed.

A general decree, dismissing the bill against the defendants, who are heirs of their father as well as of the mother, might deprive the complainants of their remedy, if they have any, against the personal representatives or the heirs of Tibbitts, under the covenants of warranty in the deed of 1810. The decree must be so framed, therefore, if the complainants wish it, as to protect all their rights, and at the same time to give to the defendants the full benefit of their title as heirs at law of their mother. This may probably be done by a decree of strict foreclosure as to all rights and interests acquired under the deed of 1810, and declaring the rights of the defendants to the land itself under the previous conveyance. And as the complainants are litigating in good faith in their representative character, in a case of very great hardship as respects the estate -which they represent, they are not to be charged with the costs of the adverse party.


text:
    Boughton & Mills, Executors, &c. vs. Philips.
    1837. March 7.
    Executors are liable for the costs of a bill of discovery filed by them in aid of their defence to a suit at law, where it appears from the defendant’s answer that there was no fact within his knowledge which could in any way aid them in such defence.
    The payee of a note, who has made the usual affidavit of the justice of his demand against the estate of the maker, is not bound to give the personal representatives of such maker a statement of theseveral items which formed the consideration of the note.
    This was an application to, dissolve an injunction, and for costs, upon the coming in of the defendant’s answer to a bill of discovery in aid of a defence at law. The defendant had sued the complainants as executors, upon a note given bytheir testator,whichnote the bill charged to have been given without consideration. The complainants caused a notice to be served on the attorney for the defendant, requiring him to furnish them with a written statement, signed by the defendant, setting forth the time when and in whose presence the note was given, and the items forming the original consideration of the note. And they gave the defendant notice that unless such statement was furnished by a particular day, a bill of discovery would be filed. The defendant in his answer denied the whole equity of the bill; and showed a full and valid consideration for the note. He also showed that before the commencement of the suit at law, he presented the note to the complainants, with his own affidavit, of the genuineness of the note and of the justness of his demand, that the whole amount of the note and interest was justly due to him thereon, that no payments had been made, and that no offset existed against the note, to his knowledge ; and that he also furnished the affidavits of two other persons proving the genuineness of the testator’s signature. The defendant also stated in his answer that, before the commencement of the suit on the note, he went with the complainants to the office of their attorney and then, in their presence, stated to the attorney the general nature of the consideration of the note, as near as he could recollect the same, and told the complainant Boughton that if he would come to his house he would show him the account on his book and satisfy him of every item ; which Bough-ton promised to do, but neglected to come. Upon the motion, the complainants offered affidavits to contradict some part of the defendants answer.

      D. Gardner, for the complainants.
    This court will not allow costs where a suit has been commenced within one year after the death of the debtor. (Butts and another v. Genung etal. 5 Paige’s Rep. 254. Hawley v. James, id. 318.) Where a bill contains no prayer for relief, if the word decree is erroneously inserted in the prayer for subpccna it will be considered merely a bill of discovery. (Schroeppell v. Redfield, 5 Paige’s Rep. 245.) In this case the information was called for before thefiling the bill and the information was refused, or given in such a vague manner and in such general terms as not to answer the inquiry in any respect. Even if the complainant has failed in malting any discovery under the circumstances, this court will not give the defendant costs. (Cudny v. Early, 4 Paige’s Rep. 209. King v. Clark, 3 id. 76. Weymouth v. Boyer, 1 Ves. jun. 416. Burnet v. Saunders, 4 John. Ch. Rep. 503.) Executors acting in good faith are not to be charged with costs, and especially where the opposite party has occasioned the expense.

      G. R. Davis, for the defendant.
    This is a fishing bill within the case of Newkirk and wife, executors, &c. of Schuyler v. Willet, (2 John. Cas. 413. 2 Caines’ Cas. in Err. 296, S. C.) The defendant having fully answered the bill, he is entitled to a dissolution of the injunction of course; and all the facts charged in the bill being denied by the answer, the complainants are liable for costs. (King v. Clark, 3 Paige, 76,) This suit being brought by the complainants not to enforce a claim of the testator but merely to aid their defence at law, their representative character cannot in case of failure" excuse them from the payment of costs. (Manny, adm’r, &c; v. Phillips, 1 Paige’s Rep. 472. 2 John. Ch. Rep. 274.) A bill of discovery must be formatters which lie only within the defendant’s knowledge, and it must be so alleged. (2 Marsh. 323. Mitford’s Pl. 246.)
   The Chancellor.

There is nothing in this case to take it out of the general rule that the complainant must pay costs upon a bill of discovery, where the equity of the bill is fully denied. Even where an available discovery is made in the answer, the complainants pay costs unless the defendant has unreasonably refused to disclose facts which were.necessary to the defence at- law. In this cáse the only material allegation in the bill is, that the note wás given without consideration. And although one of the complainants had sworn that this charge was true of his own knowledge, it is evident from the whole case that he must have" misunderstood the oath he was taking, and that he only meant to say he believed or had a suspicion that there was a want of consideration for the flote. It was clearly therefore a fishing bill, for the purpose of seeing if they could not draw out something from the defendant which might aid them in a defence to a suit on the note. As there was no fact in the knowledge of the defendant which could aid the complainants in their defence, he was under no legal obligation to tell them what were the items of the consideration for which the note was given. Were it admissible to read affidavits in opposition to an answer in such a case, therefore, the defendants claim for costs would not be altered by the affidavits now produced. The defendant’s own affidavit of the justice of his claim, which had been previously fur-nished, was all that the complainants could reasonably require. This bill of discovery, under the circumstances, was not only unnecessary but vexatious. The injunction must be dissolved; and the complainants must pay the defendant’s costs, to be taxed,