text:
    Degraw, executor, &c. vs. Clason.
    An annuity bequeathed by the testator to his widow, in lieu of her dower, and charged upon his real and personal estate by his will, is liable to the claims of the creditors of the widow, and may be reached by a creditor’s bill against her.
    Where a defendant in a creditor’s bill is directed to assign his property to a receiver, under the direction of a master, it is neither necessary nor proper for the master, in settling the form of the assignment, to insert an exception in such assignment, of property held in trust for the defendant, and which has proceeded from some other person.

    The only property, held in trust for a debtor, which cannot be reached by a creditor’s bill against him, is that which is held in trust to receive the rents and profits and income thereof, and to apply such rents or income to the support of the cestui que trust; that is, an interest in trust property which the cestui que trust has not the power to alienate by any sale or assignment executed by him.
    And where the interest of the defendant, in trust property, is such that he cannot alienate it by a voluntary conveyance, such interest will not pass to the receiver by a general assignment of all the defendant’s property, choses in action, and equita* ble interest, executed under an order of the court of chancery upon a creditor’s bill.

      But where the interest of the defendant in a trust fund is suoh that he has a right tq sell it, he is bound in equity to appropriate it to the payment of his honest debts, and he must assign it to the receiver in a creditor’s suit.
    .An annuity for life given directly to the legatee, and charged by the testator in his ■will upon his real and personal estate, is not property held in trust for the legatee; but is an absolute legacy, the payment of which out of the estate upon which it is a charge, the legatee may enforce by a bill in equity.
    The owner of real or personal property, under the provisions of the revised statutes, may create an interest in the rents or income thereof in trust for the use or benefit of a third person, whom the donor is unwilling to entrust with the absolute disposition and control of such beneficial interest, by anticipation. But neither law nor sound policy allows a person to hold an absolute title to property, so a? to be able to use and dispose of it as he pleases, for his own benefit, and yet to withhold it from his creditors, by means of a mere nominal trust.
    This was an.appl ¡cation in the nature of an appeal, from the decision of Master Robinson, in settling the form of'an assignment to a receiver, from the defendant in a creditor’s bill. The complainant’s bill, after setting forth the recovery of the judgment against the defendant, and the return of an execution unsatisfied, and the several matters required to be stated in creditors’ bills by the 189th rule of this court, set out the will of W. J. Clason, the former husband of the defendant, bequeathing to her an annuity of $700 during her life or widowhood, in liem of dower; which annuity was by the will charged upon the real and personal estate of the testator. The master, in settling the form of the assignment, directed the following exception to be inserted therein : “ Except such right and interest of the said S. A. Clason as is created by the last will and testament of W. J. Clason deceased, in the annuity or yearly sum of $700, proceeding from the estate bequeathed by said will, as mentioned in the bill in this cause.”

      A. W. Clason, Jr. for the complainants.
    The annuity given to the defendant does not fall within the exception in the revised statutes in relation to trusts created by third persons. (2 R. iS. 174, §38, lsi ed.) It is not a trust. No trustee is appointed by the will, either expressly or by implication'of law. The estate created by the will, in favor of the defendant, is an annuity or rent charge, and not d trust. (Arnold v. Kempstead and wife,

      Amb, 466. Villareal v. Ld. Galway, id. 682. 10 John. R. 30.) A testamentary provision in lieu of dower has never been treated as a trust. Even if the annuity is a trust, it is not one of those, trusts contemplated by the statute. In Le Roy v. Rogers, (3 Paige, 234,) the chancellor says that “the exceptions in the statute relate to trusts held by a third person for the benefit of the judgment debtor or his family, and created by person^ other than himself; but it does not relate to property he himself holds in trust and in which he has a beneficial interest, although the trust was created by a third person.” If then this annuity is a trust, it is a trust in which the defendant has a beneficial interest; and it is a trust which proceeded from the defendant herself She created it and paid the consideration for it. - The consideration was her dower, to which, upon her husband’s death, she had a perfect' right. She had in the lands of her husband, during his life, an interest, (the inchoate right of dow,er,) a valuable interest, which he could neither alienate nor impair, and which alone would have formed a valid consideration, in equity, for a jointure before or after marriage. Her third of his personal estate forms another consideration for the annuity given her in his will.
    The cases of Clute v. Bool, (8 Paige, 83,) and Cook v. Gott, relied on by the counsel for the defendant, were cases of gratuities ; this is a matter of bargain and sale; an exchange of one ■ thing of value for another. A provision by will in addition to dower might be a gratuity, a benevolence. A provision in derogation of dower is the very opposite of one. (Bull v. Church, 5 Hill, 206.)

      E. Sandford, for the defendant.
    The creditors of the defendant have no equitable claim upon the provisions made in her behalf in the will, for the satisfaction of her debts. (8 Paige, 83. 7 Id. 738.) This provision is a trust, within the revised statutes. (1 R. 728, § 55, sub. 3.) No express words and no appointment of trustees are essential to the creation of a trust. The estate is devised by the testator to the children, charged with the trust. They are the trustees, and if they were not, the trust would not fail in a court of equity for the want of trustees, as the eourt itself would execute it. (2 Story's Eq. Jur. 3d ed. 395, §§ 1058, 1059.) Although this trust creates a beneficial interest in Mrs. Clason, still it is a beneficial interest in a trust for the receipt of rents and profits of lands; and she is prohibited by law from assigning hr in any manner disposing of such interest. (1 R. S. 2d ed. 724. § 63.) The provision was intended to secure her a quarterly provision during her life or widowhood, and to place such means of support beyohd her reach, or the reach of her creditors ; and the court, in construing this devise, will be governed by the intention of the testator, and the general scope of the will. It is apparent that he did not design to vest in her an absolute or beneficial interest, such as would be the subject of a grant or sale. If it could be sold, it might be conveyed in anticipation, and the very provision intended to guard against improvidence and prodigality be made the means <jf supply to both. Her right to receive the next quarter-yearly payment does not accrue until the time elapses. An assignment can only operate upon a present right dr interest. She cannot convey this right, which is yet to be acquired, and which is subject to the two-fold contingency of death and marriage ad interim. The injunction issued operates to restrain the defendant from receiving a sum of money, the payment of which she has then a right to demand. It does not apply to a right thereafter to be acquired. The case is most clearly within the intention and terms of the statute, and also within the principles declared in Clute v. Boól, (8 Páige, 83.) “ The fund held in trust” did not proceed from the defendant herself. The trust was “ created by”, the testator. He owned the property exclusively. He created in it this interest, for the benefit of his then wife. But he created it upon conditions. She was not to marry; and she was not to take this benefit out of his estate, and also take her dower in it. As- the fund “ held in trust ” in this case never was the property of the defendant, it could not proceed from her. It comes directly up to the statute definition of a fund held in trust proceeding from some other person. That Mrs. Clason had to do something before she became entitled to the benefit of it, neither rendered her its creator nor its source.
   The Chancellor.

If it was proper for the master to direct any exception to be inserted in the assignment to the receiver, under this order of reference, it should have been in the language of the exception contained in the thirty-eighth section of the article of the revised statutes relative to the court of chancery. (2 R. S. 174.) No exception of this kind; however, is necessary or proper to be inserted .in the assignment; as this court, in the case of Hallett v. Thompson, (5 Paige's Rep. 583.) has decided that this section of the statute was only intended to exempt the beneficial interest, of the cestui que trust, in those cases where' the cestui que trust hiniself could not voluntarily alien his interest in the trust property.' And in those cases a general assignment to the receiver will not convey to him an interest in a trust for the receipt of the rents and profits of lands, or of the interest or income of personal estate for the. use of a cestui que trust, .which by law is inalienable by the assignor.

But where the defendant himself has a right to sell his interest in the trust fund, in anticipation, and to use the proceeds of such sale as he pleases, equity requires that he should appropriate it to the payment of his honest debts; and he must assign such interest to the receiver in a creditor’s suit. The owner of real or personal estate may create an interest in the rents and profits, or the income thereof, finder the provisions of the revised statutes, in trust for the use or benefit of a third person, whom from improvidence or otherwise, the donor does not think proper to entrust with the- absolfite disposition and control of his beneficial interest, in the trust property, by anticipation. But neither law nor sound policy will allow an absolute and unconditional right to propeityto be vested in a person, which he may use and dispose of as he pleases, by anticipation or otherwise, but in relation to which property he may set his creditors at defiance, by means of a mere nominal trust. Even in those cases where the legislature has thought proper to allow an inalienable interest in the rents and income of property to be created, by means of a valid trust, a reasonable limitation has been fixed to the power to protect that interest against the honest claims of creditors, by subjecting the surplus income, beyond what may be necessary for the education and' support of the cestui que trust, to their equitable claims to payment. (1 R. S. 729, § 57. Idem, 773, § 2.)

In the case under consideration, I can see no ground whatever for considering this bequest as a trust; any more than in the case of an ordinary pecuniary legacy payable immediately, and charged upon the real estate, as well as upon the personal estate, of the testator generally. The real and personal estate is not devised or bequeathed to trustees, but to the testator’s two sons absolutely, in fee, subject however to the charge of the legacy; nor is the legacy charged upon the rents or income of the property merely, but upon the whole estate generally. If the testator had left personal estate sufficient, that would have been the primary-fund for the payment of the annuity; and the widow might have brought an action at law against the personal representatives of the testator, in her own name, for the recovery thereof, upon complying with the requisitions of the statute as to security, if the annuity was not paid from time to time, as it became due; or she might have compelled payment thereof by a proceeding before the surrogate. But as the testator left no personal estate beyond the amount of his debts, the annuity was a charge upon his land, in the hands of the devisees, or their grantees, which this court would enforce, by a sale of the real estate upon which the annuity was a lien, if the quarterly payments were not made, by the owners of the estate, from time to time as they became due. In no sense, then, can this annuity be said to be property, money, or a thing in action held in trust for the defendant, within the intent and meaning of the exception in the thirty-eighth section of the title of the revised statutes before referred to. The master, therefore, should not have directed this exception to be inserted in the assignment of the defendant’s property to the receiver, but should have approved a general assignment without such an exception.

The acceptance of this assignment, under the decision of the Piaster, with full notice from the counsel for the complainants that they excepted to such decision, was no waiver of their right to bring the question before the court for review. An order must therefore be entered, directing the defendant to execute a liew assignment to the receiver, for the purposes of this suit, of all her right and interest in the annuity or yearly sum of $70.0 to which she now is entitled, or may hereafter be entitled, under the will of her deceased husband, as mentioned in the complainant’s bill; such new assignment to be executed under the direction of the master, and to be approved of by him as to its form and manner of execution. The taxable costs of the complainants upon this application are to abide the event of this suit, and to be paid by the receiver out of the assigned property, if the complainants succeed in obtaining a decree against the defendant.


source: Caselaw Access Project

author: The Chancellor.

license: Public Domain

text:
    Jacot vs. Emmett, administrator, &c.
    Where the attorney of the next of kin applied to the administrator of the decedent for the payment of the distributive share of the estate which belonged to his client, and the administrator rendered an account, showing the balance due, but refused to allow interest on some of the moneys which had remained in his hands unin-vested, and the attorney received the balance appearing to be due to his client, and gave a receipt for the same at the foot of the account, without making any reservation of a claim for interest; Held, that the settled account must be considered as conclusive between the parties, and that the next of kin could not after-wards claim interest upon the halande of account; as all the facts upon which the claim to interest rested were known to the attorney at the time of the Settlement of the account and the receipt of the balance appearing to be due thereon.
    Where interest is only recoverable as damages, for the non-payment of the principal when it became due, the receipt of the principal debt by the creditor is a bar to' any Claim for interest thereon.
    If an executor of administrator mixes the money belonging to the estate of the decedent with his own, and uses the samé so that he has it no! on hand to pay over to the persons entitled to it whenever it shall he called for, he may he charged with interest on such money.
    But the mere neglect of an executor or administrator to invest money belonging to the estate, which money he may be called upon to pay to the legatees or distributees at any moment, is no ground for charging him with interest, where such money is kept read}' in bank, or otherwise, to be paid over when called for.
    An executor or administrator is not authorized to loan moneys of the estate in his hands, to the payment of which an adult legatee or distributee is entitled immediately upon demand without the authority of such legatee or distributee. And if he does loan such moneys without authority, it will be at his own risk.
    This was art appeal from the sentence or decree of the surrogate of the city and county of New-York. The respondent, R. Emmett, was the administrator of T. Lynch, late of New-York, deceased, and the appellant was the personal representative of the wife of T. Lynch ; who survived him and who was entitled to one half of his personal estate. The claim .made before the surrogate, against the respondent, was for interest on moneys which had been received by the respondent on account of his intestate, and which had not been invested. In September, 1840, the respondent stated and settled his account, .as administrator of T. Lynch, with the attorney of the appellant, who was duly empowered for that purpose, and paid over to such attorney the share of the estate due to the appellant’s intestate, according to such account. That account showed a balance of $1140,15 due to the estate of Ann Lynch, of which the appellant was the administrator. And the attorney gave to the respondent a receipt for such balance at the foot of the stated account. Some of the moneys had been in the hands of the respondent unin-vested, and he had declined to pay them over for a time without a bond of indemnity. Upon the settlement, the attorney inquired of the respondent whether he ought not to pay interest. The latter replied that he should not pay interest, as the money had been of no advantage to him. The attorney thereupon received the balance as stated, and gave the receipt therefor without making any reservation therein of a claim to interest. Nor did it appear that any objection was made to the account, as then stated and settled, until about a year afterwards, when the respondent was cited to account before the surrogate. The surrogate, upon the hearing of the case, decided that the respondent had rendered himself liable for the payment of interest, because he must have used the money of the estate; as it appeared from the testimony of the attorney that the respondent was’ not always ready to pay the money when he called on him for the purpose of receiving the same. But the surrogate also decided that the attorney having settled the account, as stated, without any reservation of a claim to interest, the claim which the appellant originally had was waived; and that the respondent was not then liable for the interest. From this decision the administrator of Ann Lynch appealed to the chancellor.

      J. Anthon, for the appellant.
    The respondent, Mr. Emmett, is clearly liable to the payment of interest on the balance in his hands due to the estate of Ann Lynch. He is to be considered in the light of having made profits out of the fund, the same hav-. ing been mingled with his own and not forthcoming when called for. The receipt given by the attorney of the administrator of Ann Lynch was not a receipt in full. This receipt left the question of interest open. This must especially in this case be so considered, as here trustees and a trust fund are involved. The case of Lord v. The Corporation of the City of New York-, (3 Hill, 426,) is in point. That case decided that a similar receipt covering the whole amount of the principal, reserves the question of interest. The principle of that case is fully sustained in the earlier cases involving the same point. (Consequa v. Fanning, 3 John. Ch. 601.) The presumption, in this case, that no interest was due or was received, is put down by the course of the transaction. There is no proof of any act of the administrator approving of the act of his attorney. The demand of the interest was made within the year.

      A. L. Robertson, for the respondent.
    Interest can only be claimed by contract, express or implied; or as damages for the non-payment of a debt, or non-performance of a duty-, or as a measure of injury done by a tort. (5 Cowen, 614, opinion of Spencer.) The claim of interest in this case is not founded on contract, nor on the ground of profits made out of the fund. Interest forms no part of the debt; it is something added to it by way of damages for its detention. (Stevens v. Barringer,
      13 Wend. 639.) The attorney of the administrator of Ann Lynch had full authority to receive the balance due by the respondent and to execute a full release therefor. He had power to fix what was due. He received the principal as principal, and thereby waived all claim for interest. The receipt shows that the money was received .as principal. The question of interest is not reserved in the receipt. The refusal of the respondent to pay interest rebuts any presumption that the question of interest was intended to be left-open, which might be sought to be deduced from the omission of the words “ in full ” in the receipt. The delay after the settlement of the account in claiming interest is a bar to the claim. ( Wells v. Jernigcm, 2 Atk. 252.) The cases establish the principle that where the principal is received as principal, all claim for interest is waived. (Dixon v. Parker, 2 Esp. Cas. 110. Tillotson v. Preston, 3 John. R. 229. Johnson v. Braman, 5 Id. 268. William,s v. Hough,-taling, 5 Cowen, 87. People v. New- York, Idem, 337. Stevens v. Barringer, 13 Wend. 639. Fake v. Eddy’s ex’rs, 15 Id. 80.)
   The Chancellor.

If the surrogate came to the right conclusion, from the testimony of E. II. Jacot the attorney, that the respondent had mixed the money belonging to the estate of his intestate with his own, and had used it, so that he had it not on hand when he was called on for payment, he might unquestionably have been charged with interest, according to the settled rule of this court in such cases. But a mere neglect by an administrator to invest moneys which he may be called upon to pay over to the distributees at any moment, would be no ground for charging him with interest, if the money was kept in bank or otherwise, ready to be paid over when called *for. Indeed, the administrator would not be authorized to loan the fund, to which adult distributees were immediately entitled, at their risk, and without authority from them.

Even if the respondent had rendered himself liable for interest, by using a portion of the trust fund for a time, the surrogate was still right in considering this settled account as conclusive between the parties, after it had been acquiesced in by the appellants for. nearly a year, without objection. There are no facts now disclosed which were not as well known to the attorney, at the time he made the settlement, with the respondent, and received the balance of the account, as they were when the respondent was subsequently cited to account before the surrogate. There was no item left out of the account by mistake, or from a misapprehension of facts; for the attorney was told, at .the time, that the respondent did not intend to pay any interest. The receipt of the balance of the account as stated, without any reservation of the right to claim interest afterwards, was therefore a waiver of the claim. El ven if interest had actually been received upon the trust moneys by the respondent, it would be doubtful at least whether the appellant could be permitted to surcharge and falsify an account thus stated and settled with a full knowledge of all the facts upon which the right to interest was based. Here, however, it is not pretended that the respondent had put out the trust fund and received interest thereon. But the claim for interest is founded upon the supposed breach of trust by a mere temporary use of the money, so that the respondent was not in funds to pay the same when it might be called for. And the cases referred to in the opinion of the surrogate, and by the counsel for the respondent, show that the receipt of the principal debt, when interest is only recoverable as damages, is a bar to the claim for interest.

The power of attorney was sufficient to authorize this settlement. Besides, the"-presumption is that the attorney communicated the facts which were known to him to- his constituent; and the acquiescence of the latter in the account as stated and settled, by his attorney, without objection, for nearly a year, ought of itself to be Considered a waiver of the claim to interest.

The sentence and decree of the surrogate, which is appealed from, must therefore be affirmed with costs.


text:
    Kelly vs. Israel and others. The same vs. Thompson and others. The same vs. Thompson and Israel and others.
    Where a decree of foreclosure and sale of mortgaged premises is made, a junior mortgagee who is a party to the foreclosure suit, and who is interested in the proceeds which are to arise from the sale, or any other party to the suit who is interested in having the mortgaged premises sold under the decree without delay, may apply to the court to commit the prosecution of the decree to him, if the complainant neglects to proceed to a sale with due diligence.
    And if the decree has been placed in the hands of a master to he executed, the court, upon the application of a party who is interested in having the sale made, may direct the master to proceed and execute the decree, by a sale of the premises, without delay, notwithstanding any directions such master may receive'to the contrary from the complainant or his solicitor..
    Where a decree bf sale is placed in the hands of a master to be executed, it is the duty bf the master, without any further order of the court for that purpose, to proceed to a sale of the property with all reasonable diligence, if he iis requested to do so, by any of the parties to the suit who will be injured by a delay in making the sale.
    The master, in the exercise of a sound discretion, may adjourn the sale to a future day, when a sufficient reason is shown for such adjournment.
    Where notice of the sale of mortgaged premises, under a decree of foreclosure, is discontinued, by the direction of the complainant, and without the consent bf the other parties to the suit Who are interested in the proceeds of the sale, the extra expense occasioned by the discontinuance of the first notice of sale, ought not to be paid out of the proceeds of a sale subsequently made by the master, to the injury of the other parties interested in such proceeds.
    A party to a decree, or order, who has parted with all Eis interest in the subject matter thereof, and who cannot therefore be injured by such decree or order, cannot appeal therefrom.
    Whether a purchaser, pendente lite, of the equity of redemption in mortgaged premises, or of a junior incumbrance on the premises, from a party to the suit, can be heard in relation to the time or manner of selling the premises, under a decree of foreclosure, without making himself a party to the suit by a supplemental bill 1 Qucsi'e.

    The mere consent of a party in interest, who is not a party to the suit, and whose interest in the mortgaged premises is not affected by the decree of foreclosure, to come in and be bound by the decree, in the same manner as if he was a party to the suit, is not sufficient to authorize him to interfere in such suit.

      These cases came before the chancellor upon the separate appeals of the complainant, and of the defendant W. S. Warwick, from two orders of the vice chancellor of the first circuit; the one made in the two first of the above causes, and the other in the last cause. On the 18th of January, 1827, W. IsraeL and wife, being the owners of three parcels of land containing together about 376 acres, mortgaged the same to the executors and executrix of J. Thompson deceased, to secure the payment of $12,000; which mortgage was afterwards assigned to the complainant. Israel and wife conveyed these three parcels of land to J. Thompson, one of the defendants in the two last of the above causes. J. Thompson mortgaged the three parcels of land, together with another parcel adjoining the same, containing about ten-acres,on the 8th of November, 1832,toj. Tal lmadge, to secure the payment of $8000 with interest; which last mentioned mortgage was also assigned tó the complainant. On the 15th of August, 1837, J. Thompson also mortgaged these.four parcels of land, together with two other parcels — the one containing four acres and the other forty-three acres — to W. P. Hallett, to secure the payment of $5800 and interest; which last mentioned mortgage was assigned by Hallett to the defendant C. Sa-gory, for the benefit of himself and his copartner, L. Rogers. And Thompson and wife, on the first of May, 1839, conveyed the whole six parcels of land to W-. S. Warwick, subject to the payment of these three mortgages. In October, 1839, Warwick and wife mortgaged the' whole six parcels to his brother A. Warwick, to secure the paymeiit of $12,000 and interest; and in March, 1840, W. S. Warwick again, mortgaged the premises to secure the payment of $20,000, to Rogers & Sagory. W. S. Warwick subsequently failed, and assigned his interest in the premises, to W. B. Platt, as trustee, for the benefit of his creditors. In October, 1841, W. Kelly, abrother of the complainant, made a verbal agreement with Rogers, acting for himself and his copart-ner, to purchase the mortgaged premises for the sum of $42,500, to be paid when a good title to the premises should be procured by them. In November, 1841, Kelly obtained from Platt, the assignee of W. S. Warwick, a conveyance of the equity of redemption subject to the various incumbrances thereon, for the consideration of $100, and went into possession of the premises. Various negotiations then took place between him and Rogers & Sagory, with a view to have the verbal agreement between them reduced to the form of a written contract; but they could not agree upon the terms and conditions of the contract; a difficulty having arisen between the holders of the two last mortgages, as to which was entitled to priority. In December, 1841, W. Kelly conveyed the equity of redemption to C. J. Cauldwell, for the consideration of $200, but continued in possession of the premises. On the 7th of February, 1842, Rogers & Sagory filed a bill to foreclose their mortgage of $5800, which had been assigned to them by Hallett. On the 26th of January, 1842, and before the commencement of either of the above suits, Rogers & Sagory borrowed of V. De Launay $25,000; and as security for the payment of that loan assigned to him their $20,000 mortgage; but that assignment was not recorded until the month of July in that year. In February, 1842, the complainant, J. Kelly, filed separate bills before the vice chancellor of the first circuit, in the two first of the above causes, to foreclose the two mortgages of January, 1827, and of November, 1832; and the mortgagors in those mortgages respectively, and Rogers & Sagory who then held the third mortgage and had an interest in the fifth, and the holder of the fourth mortgage, and W. S-. Warwick the mortgagor in that mortgage, and the owner of the equity of redemption, and W. Kelly the person in possession, were made parties. But the complainant, being ignorant of the assignment of the $20,000 mortgage to De Launay as security for the loan made by him, the latter was not made a party. In April, 1842, Rogers & Sagory sold and assigned their mortgage, of $5800, to the complainant, and discontinued their suit brought to foreclose the same. In May thereafter the complainant filed his bill, in the third of the above entitled causes, before the chancellor, to foreclose the mortgage so assigned to’him. The usual decrees of foreclosure and sale were obtained in the two first causes in October, 1842, and in the last cause in March, 1843. The mortgaged premises described in the respective mortgages foreclosed, were advertised to be sold under the several decrees on the 25th of January, 1844. At the time and place appointed for the sale the solicitor for the complainant and W. Kelly attended; and Sagory also attended, prepared to bid at the sale. But the master, at the request of the complainant’s solicitor, adjourned the sale to the 4th of April. And, about the last of March the notices of the sales were discontinued without the consent either of the defendants Rogers & Sagory, «r of Thompson the mortgagor, who was personally liable for the deficiency if any there should be, in the proceeds of the sale, to satisfy the second and third mortgages. De Launay thereupon tendered, or offered to pay, to the complainant, the full amount of the three decrees,- with interest and costs, upon condition that the latter would assign the decrees to him; which offer was declined.
    Rogers & Sagory and De Launay, thereupon, presented a petition to the chancellor, in the last of the above causes, praying that the complainant might be required to proceed to the sale of the mortgaged premises, under the decree in that cause; or that he should be directed to assign the decree to De Launay, on payment of the amount due, with interest to the time of tfie tender, and the taxable costs, exclusive of master’s fees upon the notices of sale which had been discontinued ; or in case a sale' should not be ordered, or the decree assigned, that a receiver of the mortgaged premises might be appointed, or that the decrees might be vacated, so that the petitioners might be enabled to foreclose their $>20,000 mortgage without embarrassment; or for such other relief as might be just and proper. This petition was referred by the chancellor to the vice chancellor of the first circuit, for hearing and decision, at his next motion day, without further notice. A notice was also given by the solicitor of the defendant Thompson, that he would move for the granting of the prayer of the petition. The solicitors of the defendants Rogers &> Sagory also gave notice, in the two first suits, that a motion whuld be made for the same relief, substantially, as was asked for in the prayer of the petition in the last cause, or for the other special relief stated in the notice. Upon the hearing of these applications, before the vice chancellor, they were opposed not only by the complainant, but also by the counsel for the defendant W. S. Warwick, and by the counsel for F. W. Clagget, who claimed an interest in the fourth mortgage. And the vice chancellor thereupon made ail order in the two first causes, and a separate order in the last cause, in substance that the defendants, Thompson, and Rogers & Sagory, or either of them, or the petitioner, De Launay, might pay into court the amount of the several decrees, with interest, and the complainant’s taxed costs, unless the complainant should before such payment elect to receive the' same himself; and that the party making such payment to the clerk of the court, or to the complainant, should be at liberty to proceed finder the decrees respectively, for his own use and benefit, as if the same were assigned to him; and might cause the premises to be sold by a master; and that the master pay to him or his solicitor the amount due to the complainant, with interest and such taxed costs, instead of paying the same to the complainant or his solicitor; but that the master should in all other respects observe the directions of the decrees; that no part of the master’s fees or disbursements, or expenses of publication, or of attendance or postponement upon the former notice of sale, should be charged upon the petitioners or paid out of the proceeds of the sale; and that the costs of the petitioners respectively should be paid out of the surplus proceeds of the sales. In the ord£r made in the last cause, the vice, chancellor also directed that such parts of the mortgaged premises as were embraced in the other two decrees, respectively, should be* sold subject to the lien of such decrees. But no direction was made in either order, requiring the payment of the surplus proceeds upon the subsequent sale under the decrees upon the mortgages having a priority, to be paid to the person who should have become the purchaser under the decree in the .last entitled cause. Nor was there any direction, that the sale under the decree in the second cause, of the part of the premises embraced in the first mortgage, should be’ sold subject to the lien of the decree in the first cause; or any direction as to the order in which the sales under the several decrees should be made.

      Upon the argument of the appeal, the chancellor suggested that as the respondent, De Laun'ay, had not been made a party to the foreclosure suits, and as the assignment had, in feet, been made to him, before the filing of the several bills, it might be doubtful whether his equity of redemption would be barred, so as to give him any interest in the proceeds of the sale, or so as to give the purchasers under the decrees a good title as against him. His counsel thereupon procured from him a written stipulation, which was filed, consenting to be bound by the decree in the last cause, in the same manner as if he had been made a defendant in the suit, and with the same rights in the surplus proceeds as if he had been a party.

      J. Rhoades, for the appellant W. S. Warwick.

      E. Sandford and M. S. Bidwell, for R. Kelly.

      F. B. Cutting, for the respondents.
   The Chancellor.

The objection that W. S. Warwick has no interest in the subject matter of these orders, and has therefore no right to appeal, appears to be well taken. He has been discharged under the bankrupt act, as charged in the petition and not denied. And before his discharge he had conveyed all his interest in the equity of redemption to a trustee, for the benefit of his creditors, which interest has long since been sold by the trustee. He is, therefore, attempting to interfere in a matter, in which he has no interest whatever. His appeal must accordingly be dismissed, with costs to the respondents, to be taxed.

The question whether the assignee pendente lite of an interest in the equity of redemption, or of a junior incumbrance thereon, can be heard in relation to the time or manner of selling the mortgaged premises, under a decree of foreclosure, without the delay and expense of making himself a party to the suit by a supplemental bill, do.es not arise here. For if the statements in the petition are true, the interest of De Launay accrued before the filing of the complainant’s bill in either of these causes; and a mere consent, of a party not affected by the decree, to come in and be bound by such decree, is not of itself sufficient to authorize him to interfere in the suit. So much of the order, therefore, as gives him the right to pay the money into court and to have the benefit of the decree, is erroneous..

Rogers & Sagory, however, are parties to the suit; and they have an interest in the surplus proceeds of the sale sufficient to authorize them to interfere, notwithstanding they have pledged their $20,000 mortgage to De Launay as security for the loan from him. For the loss, if any, in the collection of that mortgage, must eventually fall upon-them. The delay in selling under the decree, and suffering the interest to accumulate while the lents and profits of the mortgaged premises were being received and appropriated by other persons to their own use, was not only unjust as to Rogers & Sagory as junior incumbrancers, or as having an interest in the collection of this junior mortgage, but it also endangered the rights of Thompson, who is personally liable for any deficiency there may be, in the proceeds of the sales, to satisfy the second and third mortgages. ■ Where property, against which there has been a decree of foreclosure, is thus situated, the complainant has no right to suspend the execution of the decree, in which execution other parties are interested. And if the complainant neglects to proceed to a sale with due diligence, the court, upon the application of any other party interested in the execution ofethe decree, will commit the prosecution thereof to him; or if the decree has already been placed in the hands of a master to be executed, will direct-him to proceed to a sale, without delay, notwithstanding any directions he may receive to the contrary from the complainant or his solicitor. Indeed it is the duty of the master, without any special order of the court for that purpose, to proceed to a sale of the property with all reasonable diligence, if requested to do so, by any party to the suit who must necessarily be injured, by the delay, if the sale is stayed without a sufficient cause.

In this case, the circumstances in which the complainant’s solicitor was placed, by W. Kelly’s declining to bid on the property, after his interviews with Sagory and Mr. Argenti, and by the absence of his client, and the want of instructions how to act in such a contingency, was sufficient to justify the master,-in the exercise of a sound discretion,to postpone the sale for a reasonable time; to enable the solicitor to communicate with his client. And if the master had proceeded to sell the property on the day to which the sale stood adjourned, the extra costs of the master, occasioned by such adjournment, should have been-allowed.

But no sufficient excuse is given for the subsequent abandonment of the notice of sale; leaving the owner of the equity of redemption to enjoy the use of the property for an indefinite period, at the expense of the holders of the junior incumbrances. It was also jeoparding the rights of Thompson, who was personally liable to the complainant for the deficiency in the proceeds of the sale, if any there should be, to pay the second and third mortgages and the accumulating interest thereon. The proceedings under the. decree should not have been' abandoned, without the assent of the defendant Thompson, and of the junior incumbrancers who had an interest in having the property sold with the least possible delay. And as the expense of advertising, and of the other proceedings of the master in part execution of the decrees for the sale of the mortgaged premises, which had already been incurred, were rendered entirely useless by such discontinuance of the notices of sale, and as the whole expense must be again incurred in the execution of the decrees, I think the vice chancellor wds right in refusing to subject the surplus proceeds of the sale to a double charge for master’s fees and expenses of advertising, &c.

The proper relief to be given upon the petition and notice, however, was to direct the master to proceed and sell the property without delay; and if necessary, a receiver of the rents and profits of the premises in the meantime might have been appointed. As some parts of the premises were to be sold.under three separate and distinct decrees, it was proper to give such, directions to the master, as to the manner of selling, as to prevent a sacrifice of .the property. But in the manner in which' these orders are drawn up, there may be difficulties in the execution of .the decrees which the vice chancellor does not appear to have anticipated. For if the premises included in the first mortgage should be put up and sold, under the decree founded on that mortgage, the surplus must, as the decree and orders now stand, be brought into court to abide the litigation among the subsequent incumbrancers; and it cannot be applied by the master to the satisfaction of the decrees on the second and third mortgages, without the expense and delay of a new application to the court for that purpose. And if that part of the premis.es should be first sold under the decree upon the third mortgage, the same might be immediately put up and sold again under the decrees upon the prior mortgages. To prevent any difficulties of that kind, but. one order should be entered, in all three of the suits, directing the master as to the manner of selling and applying the proceeds to satisfy all the decrees; without the expense of bringing that part of the proceeds into court.

The orders appealed from must be reversed, without costs to either party upon the appeal of the complainant. And an order must be entered entitled in all three of these causes, directing the master who was originally charged with the execution of the decrees, to proceed to advertise and sell the whole premises embraced in the third mortgage, under the decree upon that mortgage, and on the usual notice of sale; that he sell the same in parcels, if in his opinion it can be done without diminishing the value; if that cannot be done, then that he sell the whole together ; that the purchaser take the premises discharged of the claim of any of the parties to this suit, under the decrees upon the prior mortgages; and also discharged of all equity of redemption on the part of Victor De Launay, according to his stipulation filed in the third of the above causes, in the same manner as if he were a party to the suit, and with the same right to the said De Launay to the surplus proceeds of the sale as if he had been made such party in regard to his subsequent incumbrance; that the master, out of the proceeds of such sale, pay first to the complainant or his solicitor, the amount reported due in the first of the above causes, with interest, and the costs as already taxed, and the master’s fees, commissions and expenses, other than the fees, expenses and commissions upon the notice which was discontinued ; that he then pay the amount of the debt, interest, costs, and master’s fees and commissions as aforesaid in the second of the above causes; that he then pay to the defendants Thompson and Rogers &• Sagory, or to. their solicitors, their taxable costs upon their petition and motion to the chancellor and to the vice chancellor, but not upon this appeal; that he bring the residue of such proceeds into court in the last entitled cause, and deposit the same with the assistant register, to abide the further order of the court; and that the decree in the last entitled cause be carried into full effect in all other respects. And when the surplus money shall have been paid into court, the said Victor De Launay may obtain an order of reference as to such surplus, in conformity with the 136th rule of this court, in the same manner as if he had been made a defendant in the suit; and if an order is obtained by any other person, De Launay must be permitted to attend the reference and claim such surplus, in the same manner and with the like effect as if he was a defendant and had appeared in the suit by his solicitor. The master who is charged with the sale of the premises must proceed immediately to a sale, as soon as the necessary notices can be given, and must not adjourn the sale ivithout the consent of all parties who claim an interest in the proceeds of such sale.


text:
    Cram vs. Mitchell and others.
    The bond required by the 116th rule of the court of chancery, to make an appeal from an interlocutory order or decree of a vice chancellor, a stay of proceedings, must be in such penalty as the vice chancellor who made such order or decree shall direct.
    And where the interlocutory order or decree appealed from is made by the assistant ■ vice chancellor of the first circuit, he must direct as to the amount of the penalty of the appeal bond which is to be given to stay the proceedings.
    The certificate of the vice chancellor who made the decree, of Ill's approval of the form and manner of the execution of the appeal bond, and of the sufficiency of the sureties therein, is not a compliance with the provisions of the 116th rule, requiring him to direct as to the amount of the penalty of the bond which is to be given to stay the proceedings.
    This was an application, by the complainant, for leave to proceed upon a decree of the assistant vice chancellor of the first circuit, notwithstanding the appeal, unless the appellants should give further security.

      M. Hoffman, for the complainant.

      J. Rhoades, for the appellants.
   The Chancellor.

The bond to stay the proceedings, which has been given in this case, does not appear to have been such a compliance with the provisions of the 116th rule as to make the appeal a stay of proceedings. The rule requires that the vice chancellor shall direct in what amount the penalty of the bond to stay the proceedings shall be. The intention was that the vice chancellor, who made the decree or order appealed from, and who could best judge what sum would be sufficient to secure the amount of the debt or damages which would probably be recovered in the suit, should decide the question- as to the penalty of the bond. Where the interlocutory order or decree appealed from, therefore, is made by the assistant vice chancellor, it appears to be proper that the order directing the amount of the penalty of the bond should be made by him.

In this case, however, the assistant vice chancellor has neither made an order, nor given any other direction, as to the amount of the penalty of the bond to be given to stay the proceedings. It is true he is the officer who certifies to his approval of the form and manner of execution of the bond, and of the sufficiency of the sureties therein as shown by the affidavits of justification. But he does not certify that the penalty of the bond is in the amount which had been previously fixed and directed by him. Indeed, if the rents and profits of the leasehold property, beyond what is necessary to keep down the interest on the mortgages, are as stated in the bill, the penalty in the bond is wholly insuf-ificient; independent of the value of the-assigned property which the other defendants have received. The. bond not being given in compiiance with the rule, the respondent must be permitted •to -proceed upon the decree appealed from, unless further security is-given. The .appellant's solicitor, however, appears to have .acted upon the supposition that the approval of the bond as to its form and execution, and as to the sufficiency of the sureties named therein, was tantamount to an order directing and declaring the amount of the penalty of the bond which should be given to stay the proceedings. It is proper, therefore, that the appellants should be permitted to stay the proceedings upon terms, until the decision of the case upon the appeal. The order must direct that, in case thé appellants shall, within twenty days, file with the assistant register a bond to the complainant, in a penalty of at least double the amount due upon the complainant's two judgments, as stated in the bill, conditioned that no waste shall be committed upon the leasehold premises sold- to Nones, as mentioned in the pleadings in .this suit, and that the appellants will pay and satisfy whatever sums they or either of them may finally be decreed to pay in this suit if their appeal shall be dismissed, or the decree appealed from shall be affirmed, that all proceedings upon the decree appealed from be stayed, until such appeal is finally disposed of; such '-bond to be approved of by the vice chancellor or the assistant vice chancellor of the first circuit. The costs of the respondent upon this application must be paid by the appellants; and they are fixed at $15. After the expiration of the twenty days, if the bond is not given and the costs paid, the complainant is to be permitted to proceed upon the decree; but during the twenty days all proceedings upon the decree appealed from must be stayed, in the same manner as if a valid bond to stay the proceedings had been filed in conformity with the provisions of the 116th rule.


text:
    Spencer vs. Spencer and Corning.
    Where trustees were directed to receive the rents and income of the trust property, and out of the same to pay to J. S. $700 annually, during his life, and to convey-the trust property to his heirs after his death, and to increase his annuity to $1200, if he should marry and have a family, and J. S. afterwards married and became a housekeeper, but had* no children of the marriage; Held, that the trustees were not authorized to increase the annuity beyond the $700.
    The expression “ if he shall get married and have a family,” in its ordinary sense, in a will or settlement, means to get married and have issue of such marriage, and not merely to get married and have a family, by becoming a housekeeper.
    This was an application by John Spencer, the complainant, for directions to the substituted trustee of his estate, who had been appointed such trustee, in this suit, to pay to the petitioner an annuity at the rate of $1200 per annum, out of the trust estate, from the time of his marriage. J. Rhoades, the trustee, declined paying to the petitioner any more than $700, without the special direction of the court; upon the ground that it was at least doubtful whether any more was payable under the terms of thé trust deed. The trust deed conveyed the fund in question to the original trustees, in trust, after paying the debts then due, to invest the balance, and out of the income to pay to the petitioner $700 annually during his life; and in case he should “marry and have a family,” then to pay to him out of such income the annual sum of $1200,; and if the income of the fund should be insufficient, the trustees were .to apply so much of the capital of the fund as was necessary to make up the deficiency in the annuity ; and to convey the residue of the trust fund to the heirs of the annuitant, after his death. The petitioner married in 1841, and was a housekeeper; but he had never had any children by his wife, who .was still living with him.

      S. Stevens, for the petitioner.

      J. Rhoades, the trustee, in person.
   The Chancellor.

The principal question for considera-tipn in this case is upon the construction of the words, shall marry and have a family. The word family may mean children, wife and children, blood relatives, or the members of the domestic circle, according to the connection in which the word is used. Thus in Barnes v. Patch, (8 Ves. 605,) where a residuary bequest of a contingent interest in the testator’s estate was directed, upon the happening of the contingency, to be equally divided between his' brother and sister’s families, Sir William Grant decided that the whole went to the children, to the exclusion of the brother of the testator, who was living at the time of the happening of the contingency. Here the context shows fhat, by the word family, the grantor must have meant children. For to entitle the trustees to increase the annuity from $700 to $1200, the petitioner is not only to get married but also to have a family. And getting married and having a family, in common parlance, means something more than having a wife and keeping house. Unless there is something in the context to give a different construction to such an expression, it.means to get married and to have children, or descendants, as the issue of such marriage. The trustee, therefore, is not authorized to increase the annuity to $1200, or to pay the petitioner any more than the sum first specified in the trust deed, until there shall ■be children born to him, either by this or some future marriage, unless the income of the fund should exceed the $700.

If the income should exceed that amount, the trust to accumulate it for the benefit of those who may be the heirs of the petitioner at the time of his death, is invalid pro tanto; and the surplus income will of course belong to the person creating the trust as an interest in his property not legally and effectually disposed of by the trust deed, or to the brother and sisters of the cestui que trust, as presumptively entitled to the next eventual estate. (1 R. S. 726, § 36, 37, 38, 40. Idem, 774, § 3, 4. Vail v. Vail, 4 Paige's Rep. 330.)

The petition must therefore be dismissed.


text:
    Beach vs. Beach.
    Where the wife files a bill against her husband for a divorce, on the ground of adultery, containing a prayer for relief which is adapted only to a charge of adultery, the bill is not rendered multifarious by the insertion therein of charges of unkind treatment, or cruel usage.
    Upon a general demurrer to the whole bill, the defendant cannot raise the objection • that some of the allegations and charges in the bill are unnecessary and impertinent.
    This case came before the chancellor upon appeal from a decretal order of the vice chancellor of the first circuit. The complainant filed her bill against her husband for a divorce, charging him with having committed adultery with eight different females. The bill also charged the defendant with various acts of unkindness and cruel treatment, while she continued to live with him, caused by the communication to him of her suspicions of his infidelity, and her remonstrances with him on account of his misconduct. The bill, however, contained no prayer for relief by a separation from bed and board, on account of such cruel usage; but merely contained the usual prayer for a dissolution of the marriage contract, and for alimony; and for the custody of the younger children of the marriage, and a provision for their support; that a receiver might be appointed; and that the complainant might have such other and further relief in the premises as to the chancellor might seem meet. The defendant demurred to the bill on the ground of multifariousness. The vice chancellor overruled the demurrer ; and from the decretal order overruling the same the defendant appealed.

      C. O’Conor, for the appellant.

      J. Anthon, for the respondent.
   The Chancellor.

The counsel for the appellant is under a mistake in supposing that upon this bill the complainant would be entitled to a decree of separation from bed and board, in case she should fail to establish any of the acts of adultery charged against the defendant. Upon a bill properly framed, the acts of cruel treatment, stated by the complainant, would, perhaps, be sufficient to warrant a decree of separation. But it is evident from this bill that there was no intention, on the part of the complainant, to make these charges of unkind treatment and cruel usage on the part of her husband a distinct ground for relief, independent of the charges of adultery. On the contrary, they appear to have been inserted merely as evidences of his infidelity to the marriage bed; the necessary result of which infidelity would be a loss of conjugal affection for the complainant. The insertion of these charges in the bill was probably unnecessary, and perhaps entirely useless. For at most, they could only be received as corroborative evidence of the charge of adultery. And as the statute allows the defendant to put in his answer to the charge of adultery without oath, he cannot be compelled to make a discovery, upon oath, of any fact which might tend to prove the principal charges in the complainant’s bill. In the case of Smith v. Smith, (4 Paige's Rep. 92,) the cruel treatment was made a distinct subject of complaint; and a decree of separation was expressly prayed for, if the complainant did not succeed in obtaining an absolute divorce on the ground of adultery. Here, however, the only specific prayer of relief is founded upon the alleged adultery, and the general prayer is not. in the disjunctive, but for such other and further relief as may be proper and consistent with the specific prayer for a dissolution of the marriage contract. Under this prayer, if the complainant fails in obtaining a decree for an absolute divorce, for the adultery of the husband, her bill must of course be dismissed. For no relief whatever can be given to her under any other part of the specific or general prayer for relief, if the charges of adultery, upon which the whole prayer is based, are not sustained. (Colton v. Ross, 2 Paige's Rep. 396.)

The demurrer is based upon the supposition that this is a bill for separation from bed and board, on account of cruel usage, as well as for a divorce for adultery; and that the bill ‘ is therefore multifarious. But as that objection fails, the defendant cannot, upon a demurrer to the whole bill, insist that some of the allegations of the complainant are unnecessary or impertinent. The decision of the vice chancellor was therefore correct. And the decretal order overruling the demurrer must be affirmed with costs.

       See Rose v. Rose, (post, 166.)


text:
    Millandon vs. Brugiere and others.
    Where the assignor of a bond and mortgage was made a defendant, in a foreclosure suit, for the purpose of charging him with the deficiency upon the sale of the mortgaged premises, and he put in an answer setting up a defence, and the complainant subsequently agreed to abandon his claim for the deficiency, and the usual decree was thereupon entered, but without any provision for the costs of such de-fence ; Held that such assignor was not entitled to be paid his costs out of the ' surplus proceeds of the mortgaged premises upon the sale.
    Where a defendant is improperly made a party in a foreclosure suit, the costs of his defence should be paid by the complainant, and should not be charged upon the surplus proceeds of the sale of the mortgaged premises, which belong to other parties.
    This was au appeal from an order of the vice chancellor of the first circuit, directing the costs of the defendant Selden to be paid out of the surplus moneys arising upon the sale of mortgaged premises. The bill was filed to obtain satisfaction of a mortgage given by the defendant Brugiere, to the respondent D. Selden, and sold and assigned by the latter to the complainant. The assignment contained a covenant on the part of Sel-den, that the mortgage, with reasonable care and diligence, would produce to the complainant, the principal and interest due and to grow due thereon. The complainant made the assignor a party defendant for the purpose of obtaining a decree against him for the deficiency, if any there should be, upon a foreclosure and sale of the mortgaged premises. The defendant Selden put in an answer to the bill. The complainant’s solid-tor afterwards agreed to take the usual decree of foreclosure, and for a sale of the mortgaged premises, and to abandon his claim to a decree over against Selden for the deficiency, and such decree was entered accordingly. Upon the sale, the mortgaged premises produced a surplus of about $500, beyond the amount of the complainant’s debt. The defendant Selden thereupon presented a petition to the vice chancellor, before whom the decree was obtained, to have the costs of his defence paid out of the surplus proceeds of the mortgaged premises; and notice of the application was given to Waddell, the assignee in bankruptcy of the mortgagor, and to E. Tessiere, who also claimed an interest in the equity of redemption in the mortgaged premises. The kite chancellor, upon the hearing of the parties, having directed the payment of such costs out of the surplus proceeds of the sale, Waddell, the assignee in bankruptcy of the mortgagor, who claimed the equity of redemption of the mortgaged premises, as such assignee, appealed to the chancellor from such decision.

      B. W. Bonney, for the appellant.

      G. B. Kissam, for the respondent.
   The Chancellor.

The objection that the appellant has no interest in the fund in controversy, and has therefore no right to appeal, is not well taken. He has been made a defendant in the foreclosure suit, as having an interest in the equity of redemption of the mortgaged premises. And as assignee in bankruptcy of the mortgagor he is prima facie entitled to the surplus proceeds of the sale. The affidavit as to the supposed right of E. Tes-siere, to- the equity of redemption, the appellant has had no opportunity to answer; and the deponent himself billy testifies as to his information and belief. The question of right between the different claimants of the fund, as owners iff the equity of redemption in the mortgaged premises,, therefore, canntit be settled upon this appeal. And the prima facie evidence of right in the appellant, as the assignee in bankruptcy of the mortgagor, is sufficient to entitle him to appeal frofn the ordef of the vice chancellor, if the same is erroneous.

Upon the merits of the case, I am unable to discover any grounds on which the order to pay the costs of Selden, out of the fund belonging to the owner of the equity of redemption, can be sustained. If the respondent was improperly made a defendant in the foreclosure suit, when he had a good defence against the claim made to a decree over against him for the anticipated deficiency, the complainant himself should have been charged with the costs to which Selden had been improperly subjected. And the latter, instead of entering into an agreement with the complainant to permit him to abandon an unfounded claim without costs, should have insisted upon having his costs paid by the complainant. On the other hand, if he was properly made a defendant, and had no valid defence to the complainant’s contingent claim to a decree over against him for the anticipated deficiency, there is no good reason for charging the costs of an improper defence upon the fund belonging to the mortgagor, or to his assignee.

Again; if the respondent had any claim to have the costs of his defence paid out of the proceeds of the mortgaged premises, the proper time for him to ask for such costs was at the time of the hearing of the cause and the entering of the final decree therein. And having consented to the usual decree without asking for costs at that time, and having no claim upon the surplus proceeds of the sale, as an incumbrancer upon or owner of the equity of redemption, the order for the payment of his costs out of a fund belonging to others was erroneous.

The older appealed from must therefore be reversed; and the petition must be dismissedj with costs as to the defendant Waddell.


text:
    Rose, by her next friend, vs. Rose.
    Where a bill, filed by the wife, for an absolute divorce upon the ground of the adultery of her husband, charges the husband with cruel treatment, which renders it unsafe for the complainant to cohabit with him, and such bill is so framed, as to entitle her to a decree of separation if she fails to establish the adultery charged in the bill, such bill is multifarious.
    An amendment of a bill which is multifarious, should not be allowed, if the bill, as sought to be amended, will still be multifarious, or otherwise liable to demurrer for want df form. But the amendment should be allowed only upon the condition that the complainant further amends his bill by striking out the charges therein, which render it multifarious, or otherwise defective in point of form.
    Upon a bill for a divorce, the complainant is not entitled to 'an injunction to restrain the defendant from using his property for the necessary support of himself and his children, or from using his tools of trade, or from carrying on his ordinary business.
    An injunction should not be granted upon a bill which is bad upon demurrer, even in point of form merely.
    It is a good ground of opposition to an application for alimony, or for an allowance for the expenses of the complainant in carrying on a suit against her husband, for a divorce or a separation, that the bill is so defective, either in form or substance, as to be bad upon demurrer.
    Where the husband, after the alleged adultery charged against him in the bill of his wife, secured one half of his property to his wife, by a voluntary arrangement between them, for the use of herself and two of his children, reserving the other half for the use of himself and five other children; Held, that the wife was not entitled to an allowance for alimony, or for the purpose of carrying on the suit against her husband, unless she and her trustee either surrendered, or offered to surrender, the* voluntary settlement made upon her by the husband.
    This case came before the chancellor, upon an appeal by the defendant from three orders of the vice chancellor of the sixth circuit. The first order appealed from, granted the complainant’s fnotion for leave to amend her bill, by adding the allegations required by the third clause of the 163d rule of this court in relation to bills to obtain divorces. The second order directed the defendant to pay $75 to the complainant, towards the expenses of her suit. And the third order was a denial of the defendant’s application to dissolve an injunction, which had been granted, restraining him from selling, assigning, or meddling with any of his property.

      H. Bennett, for the appellant.

      H. O. Southworth, for the respondent.
   The Chancellor.

The excuse for not inserting ithe aver-ments in the bill, which are required by the present 163d' rule to be stated therein, was the ignorance of the solicitor of the existence of the rule. This provision was not contained in the first and second editions of the rules subsequent to the revised statutes, and was inserted for the first time in the revision of the rules in 1837. It was not a statutory requirement that these allegátions should be inserted in the bill. The rule directed it, for the purpose of preventing collusion, and to enable the court to carry out the intention of the legislature, in cases where the bill was taken as confessed or the adultery was admitted; by having these matters necessarily inquired into by the master, upon the ordinary reference to him, to take proof of the adultery and of the other matters stated in the bill. The reference to the statute, in the bill itself, therefore, -would not apprize the complainant’s solicitor of the necessity of inserting these aver-ments, as is supposed by the counsel for the appellants. The neglect to look at the existing rules of the court, however, would have been a poor excuse, if the fact that the bill was drawn by the solicitor at his house, in great haste, when he was confined by sickness, had not been stated in his affidavit. But under those circumstances, it was proper to permit the complainant to amend the bill, upon terms, by inserting these averments, if such an,-amendment would have rendered the bill unexceptionable in point of form. Even with that amendment, however, it will still be demurrable, upon the ground that charges of mal-treat-* men-t are inserted, in connection with the charges of. adultery. The bill appears to have been framed with a view to obtain a decree for a separation, for the alleged mal-treatment, in ease tlje complainant should not succeed in establishing the charges of infidelity. It is filed by her next friend; which is wholly unusual, as well as unnecessary, in a bill for a divorce. It also contains an alternative prayer, after the usual prayer for a divorce and for alimony, (fee. for further and additional relief, or that the complainant may have such other relief* as the nature of her case may require. This, in connection with the charges of mal-treatment, and other acts which, as she alleges, have injured both her health and her mind, show that the bill must have been framed with, a view to obtain a decree for a separation, for the alleged mal-treatment, if an absolute divorce could not be obtained by proving the alleged adultery of the defendant. The bill is, therefore, bad for multifariousness; according to the decision of this court in Smith v. Smith, (4 Paige's Rep. 92.) The amendment should not, then, have been granted, so as to, make a good bill for an absolute divorce, without requiring the complainant to strike out all the charges and allegations therein of slander, abuse and mal-treatment, which are stated in the fourth and in the twentieth folios of the bill, and the charge in the twenty-first folio, that her health and mind had been injured by the mal-treatmént and other acts of the defendant. The order for leave to amend must, for. this reason, be modified, so as to permit the amendment, as asked for, only upon the condition that the complainant further amends her bill, by striking out the charges and allegations before stated, and the amendment must be granted upon the further condition, that it be made within twenty days. The defendant must also be per- ■ mitted to put in a new answer; to enable him to set up, as a defence, the recriminatory charges which, as he states in his affidavit, he believes he will be able to prove. And the next friend of the complainant must pay the costs of putting in the first answer, and the costs'upon this appeal, together with the costs of opposing the motion to amend; to be taxed together in one bill.

The allowance for the expenses of the suit, upon this defective bill, cannot of course be sustained. (Wood v. Wood, 2 Paige's Rep. 454.) Besides, the affidayits on the part of the defendant show that, since the alleged adultery, there has been a voluntary provision for the wife, and two of the children, embracing at least half of the defendant’s property. And I am not prepared to say that it would be proper to. exhaust the residue, if any there is, in payment of the expenses of a litigation* the necessity of which that settlement was probably intended to supersede. At least ¡.he complainant, and her next friend, should, in justice, surrender up the agreement and mortgage to be cancelled, or offer to dp so, before they should be permitted to exhaust the property which may be necessary for the support of the defendant and his other five children, in paying the costs of this litigation before the result thereof can be known. This order for the allowance for the costs of litigation, before there was a bill on which a divorce could have been properly granted, must therefore be reversed. And the petition for an allowance, for that purpose, must be dismissed with costs ; but with liberty to renew the application, if th'e complainant shall be advised to do so, upon the amended bill, and upon such other papers as she may think proper to present, after the costs shall have been paid as above directed. '

The injunction was erroneously granted upon this multifarious bill, even if the averments required by the 163d rule had been contained -therein. Besides, the injunction was much broader than would have been proper, even upon a bill which was not defective. For it not only restrained the defendant from parting with his property for the purpose of placing it beyond the reach'of the process of the court, but it also prohibited him from using his property in any way. He cannot even use his tools pf trade, nor can he manufacture his stock on hand, or apply any part of his property to support the five children remaining \vith him, without violating this injunction. The order denying the motion to dis-. solve the injunction must therefore be reyersed,and the injunction must be dissolved; but with liberty to the complainant to apply to renew the injunction, upon an amended bill, so far as an injunction may be necessary .and proper, to protect the defendant’s property from being wasted or squandered. And the defendant’s costs, upon the application to dissolve the injunction-, must abide the event of the suit, and must be paid by the next friend of the complainant, if she does not succeed in this cause in obtaining a decree for a divorce.

        See Beach v. Beach, (ante, 161.}


text:
    Buck, executrix &c., vs. Buck.
    The neglect of the sureties, in an appeal bond, to justify, according to the provisions of the 116th rule, where they are excepted to, does not render the appeal void, or prevent the appellant from bringing the case to a hearing upon the appeal. But if the sureties do not justify, within the time required by the rule, the respondent is at liberty to proceed upon the order or decree appealed from, before the vice chancellor, notwithstanding such appeal.
    Where an executor appointed by a foreign tribunal files a bill in chancery here, and subsequently takes out letters testamentary in this state, he may state in his bill the fact of the granting of letters testamentary, in this state, by way of amendment. This is an exception to the general rule, that facts which have occurred since the filing of the bill must be brought before the court by supplemental bill, and not by way of amendment.
    Thp devisees are the proper persons to file a bill for the specific performance of an Agreement to convey to the testator lands subsequently devised to them; and the suit for that purpose cannot properly be instituted, in the court of chancery, by the personal representatives of the decedent; although the testator has, by his will, directed them to take such just and proper means as will insure a conveyance of the premises to the devisees,
    This case came before the chancellor upon an appeal, by the defendant, from an order of a vice chancellor, allowing the complainants to amend their bill, and to retain a ne exeat, which had been issued upon the original bill. The object of the bill was to obtain the specific performance of an agreement to convey lands to the complainants’ testator.

      W. North, for the appellant.

      J. Dunn, for the respondents.
   The Chancellor.

This is an appeal from a decision of the vice chancellor of the sixth circuit, refusing to discharge a ne exeat, and permitting the complainants to take out letters testamentary in this state, and to amend their bill so as to state that fact. The respondents have required the sureties in the appeal bond to justify, as authorized by the recent amendment of the 116th rule, and insist that the appeal could not be regularly noticed for argument until the sureties had justified. In this the counsel for the respondents has mistaken the effect of the recent amendment of the rule. The only effect of that amendment is to prevent the appeal from operating as a stay of proceedings, for more than thirty days, unless the sureties, within that time, shall justify, as required by the rule, upon due notice' to the respondent. And if the appellant does not wish the appeal to operate as a stay of proceedings, no such justification can be required, after the appeal bond has once been duly approved by Ihe proper officer. The appellant, therefore, may notice the appeal for hearing, at any time after his appeal has been duly entered, whether the respondent does or does not give'notice that he requires the sureties to justify upon due notice to him. But where such special justification is required, if the same is not had within the time specified in the rule, the appeal will not stay the respondent’s proceedings upon the decree or order appealed from. In other words, the appeal is valid in such a case, but it does not stay the respondent from proceeding upon the decree or order appealed from.

The .taking out letters testamentary here, if the bill was properly filed by the personal representatives of the decedent, was a matter of form merely, and the liberty to make such amendment, and to retain the ne exeat, would be a proper exercise of judicial discretion. Such an amendment is an' exception to the general rule, that matters arising after the filing of the bill are not the proper subjects of amendment. (1 Barb. Prac. 207.) The difficulty of the complainant’s case, however, is that, as to .the only proper subject of equitable cognizance, the personal representatives of John Buck were not the persons to bring the suit. The decedent has devised the premises in controversy to his four sons; and they, in their character of devisees, are the proper persons to file a bill for a specific performance of the agreement to re-convey the lands in question, after the defendant should have received payment of the whole amount of his debt. It is true the decedent directs his personal representatives to take such just and proper means as will ensure a deed of the premises to the devi-sees. But that cannot authorize them to institute a suit here, for a specific performance, in their own names; but the devisees, who are the real and only parties in interest, must themselves bring- the suit. In an action at law upon the covenant to recon-vey, to recover damages for a breach of such covenant, the executrix and executors might be the proper persons to institute the suit; but in this court the devisees, who have by the will acquired all the testator’s interest, either at law or in equity, in the land, cannot file a bill for a specific performance, in the names of the personal representatives, who have no interest whatever in the 1'ahd in their characters of executrix and executors.

The surplus, alleged to have been received upon the sale of that part of the premises which was sold before the decedent’s death, may be recovered in an action at law upon the covenant, or in an action for moneys had and received for the use of the testator. And not being a proper subject of equitable cognizance, the complainants cannot come into this court for the mere purpose of obtaining equitable bail. For these reasofis, there is no equity in the complainants’ bill which can sustain this ne exeat. The order appealed from must, therefore, be reversed on that ground, and the ne exeat must be discharged; but without prejudice to the right of such of-the complainants as are devisees, to join with the other devisees in filing á new bill; in their characters of devisees, and to apply to an injunction master, or a vice chancellor, for a ne exeat, and also for an injunction to restrain the defendant from selling or incumbering the premises devised.

The question as to the right of the executrix and executors to institute this suit, for the benefit of the devisees, does hot appear to have been brought to the notice of the vice chancellor. I shall not, therefore, give the appellant costs upon the appeal.


text:
    Hathaway vs. Scott and others.
    Where the complainant assigns all his interest in the judgment, upon which a creditor’s, bill filed by him, is founded, to a third person, previous to the commencement of the suit in chancery, the defendant must make the objection by plea or answer to the hill; and he cannot afterwards apply to-have the bill dismissed in case the complainant shall, within a limited time, file a supplemental hill to bring the as-signee before the Court. "*
    But where the suit is properly commenced by the complainant, as the owner of the judgment, if he afterwards assigns his interest in such judgment, either wholly or in part, the defendant may apply to the court to have the bill dismissed, unless the assignee shall be brought before the court, by a supplemental bill in the nature of a bill of revivor, within a specified time to be fixed by the court.
    An affidavit, or petition, in the court of chancery, must be subscribed by the party swearing to the same.
    It is not necessary that an ordinary petition in a cause should be signed by counsel. The signature of counsel is required only to petitions of appeal, or petitions for rehearing.
    This was a petition by E. C. Scott, one of the defendants, for an order requiring the assignee of the judgment upon which the complainant’s bill was founded, to file a supplemental bill in the nature of a bill of revivor, within such time as should be prescribed by the court, or that the bill in this cause be dismissed with costs. Thé petitioner stated that the complainant had informed him that subsequent to the. filing of the bill in this cause, which was a judgment creditor’s bill, he, the complainant, had sold his interest in the judgment upon which this suit is founded, to J. J. Monell, and that he had then no interest in the suit; and that thé complainant had told other persons that he had sold the judgment to j. Gray. But the petitioner did not state which of those declarations of the complainant was true, or which he believed to be true. The petition was not signed by the petitioner, though it purported to have been sworn to before a proper officer, who certified that the same was thus sworn.

      J. J. Monell, for the complainant.
    The petition is not signed by the petitioner nor by counsel. (Rule 18. 1 Barb. Pr. 580.) The petitioner has recognized the proceedings in this cause since he became acquainted with the fact that the complainant had parted with his interest; and he cannot now object that the assignee is not a party. (7 Paige, 292.) The petitioner assigns no reason affecting the merits for wishing the assignee of the judgment to be made a party. The case in 7 Paige, 290, does not decide the point at issue here — this being a voluntary assignment.

      W. L. F. Warren, for the petitioner.
    The complainant has assigned his interest in the judgment, to recover which' the suit is brought, and proceedings must be stayed until the assignee is made a party. (7 Paige, 287. 9 Wend. 649.) The jurat shows that the omission to have the petition signed by the petitioner, and by counsel, was an accidental omission. The petitioner swore that he had read the petition and knew its contents. It has been decided that an affidavit commencing with the deponent’s name, but not signed, is good. (3 Caines' Rep. 190.) Even the signature to an answer is sometimes waived. (6 Ves. 285, 171. 2 John. Ch. 240.) But if this objection is good, the court ought to give time to amend, and without costs, as the omission objected to is a mere accident. As to want of signature by counsel, we suppose that an ordinary petition does not require the signature of counsel. In absence of proof, it may be presumed that the-solicitor, who does sign it, is also a counsellor. The counsel who now moves may sign the petition as counsel.
   The Chancellor.

The petitioner has entirely mistaken his remedy in this case, if he is right in supposing that there has been such an assignment of the judgment, upon which this suit is founded, as to make it proper to prosecute the suit in the name of the as-signee. For it appears that the interest of Gray in the judgment, whatever it was, had been acquired before the commencement of this suit, against the petitioner, by the service of a subpoena up-on him. The petitioner should therefore have raised the objection, that Gray was a necessary party, either by plea or anSwer. It is only when the suit has been properly commenced against the defendant, and the complainant afterwards parts with his interest, either wholly or in part, that the defendant has the right to apply to the court to dismiss the bill unless the assignee is brought before the court, by a supplemental bill in the nature of a bill of revivor, within a specified time, to be fixed by the court.

The affidavits on the part of the complainant also show, that the objection that the complainant has parted with his interest in the subject matter of the suit, is merely technical. For by the terms of the agreement between the complainant and Gray, the suit was to be prosecuted in the name of the former. A decree in the name of the present complainant, or in favor of this petitioner, against such complainant, would therefore afford to the petitioner a complete defence in any subsequent suit prosecuted in the name of Gray for the same matter. And if the petitioner has neglected to avail himself of this technical objection to the form of the suit, or to its proceeding in the name of the present complainant, at the proper time,- or in the manner in which such an objection should have been raised, the court ought not now to interfere for the mere purpose of subjecting •the adverse party to the delay and expense of filing a supplemental bill to revive or continue the proceedings in the name of ■Gray. The case might be different if the complainant was proceeding in the suit for his own benefit, after he had parted with the whole or a part of his interest therein to a stranger, and where the assignee did not consent to be bound by the proceedings.

The objection that the petition is not signed by counsel does not appear to be valid. There is no rule of this court, nor of the court from which its general practice is derived, which requires the signature of counsel to a petition, in a cause, except in. the case of petitions for rehearing, or petitions of appeal. By one of Lord Coventry’s orders, a six clerk or his deputy was to approve and subscribe petitions to be presented in a cause, except such petitions as were advised and signed by counsel. (Beames’ Orders, 84.) We have, however, no such officer as a six clerk, and that order is of course not applicable to this court. And Daniel says petitions, except they be for a rehearing or appeal, are not signed by counsel, nor need they be prepared by counsel. (3 Dan. Ch. Pr. 266.) But the objection that the petition is not signed by the party who swore to it, is well taken. To identify the. individual making the oath, he is required to sign the paper to. which he swears, so as to facilitate a prosecution fox perjury if the oath is false. And bills, answers, petitions and affidavits in this court must be subscribed by the party who verifies them. Where the verification of a bill or petition is in the form of an affidavit, the name of the deponent must be subscribed at the foot of the affidavit. But where the verification is in the form of a certificate of the officer who administered the oath, that the deponent swore to the truth of the bill pr petition, the name of such deponent should be subscribed to the bill or petition. For without such signature it would be very difficult, if not impossible, to sustain a prosecution for perjury; especially where no persons other than the deponent and the officer administering the oath were present when the former was sworn.

I am aware that the supreme court long since decided that it was sufficient, in that court, if the name of the deponent was inserted in the commencement of the affidavit. (3 Caines’ Rep. 190. 3 John. Rep. 540.) That might perhaps answer the purposes of identifying the deponent and the instrument, if the whole affidavit was in the deponent’s hand-writing. But those decisions, even if they are considered good law in the supreme court, at this time are not so here. For the practice of the court of chancery, in requiring the deponent’s signature, was founded upon a positive rule, made as early as 1661, and which has been followed ever since. By one of Lord Clarendon’s orders, the deponent was required to subscribe his name, or mark, to the affidavit before it was certified by the master. (Beames’ Orders, 210. 2 Har. Pr. 2. Wyatt’s Pr. Reg. 8. 1 Grant’s Pr. 240. 1 Newl Pr. 237.)

The application in this case being defective both in form and substance, must be denied with costs. And as the defence itself is merely technical, and the defendant has suffered the bill to be taken as confessed after he had full knowledge of the facts as to the alleged assignment, there are no grounds for allowing him to raise the objection in-any form, upon new or amended papers.


text:
    Ten Eick vs. J. & W. Simpson.
    A notice of appeal, to the respondent’s solicitor,-before the appeal has been actually entered with the clerk of the court, is irregular.
    The officer who takes the justification of sureties, should not only examine them on oath as to their pecuniary responsibility, but also as to their residence and other qualifications to become such sureties, according to law and the practice of the court; or he should require an affidavit as to such qualifications.
    The affidavit or certificate of justification of sureties, should state that such sureties are freeholders, or householders, in this state, as well as residents therein. A householder is a housekeeper, who is the master or head of a family.
    A vice chancellor ought not to approve an appeal bond upon the appeal of, a party for whom he was solicitor or counsel, in reference to the subject matter of the appeal, previous to his appointment to office.
    A mere formal defect in the notice of appeal, or in the approval of the appeal bond, is amendable, under the provisions of the revised statutes.
    This was an application by J. Simpson, one of the defendants, to dismiss the complainant’s appeal, upon the ground of irregularity. One irregularity complained of was, that the notices of appeal, which were filed and served, were wrongly entitled. The decree was upon a bill filed by the appellant, against J. Simpson and W. Simpson, for the specific performance of a contract, made by the latter, for the conveyance of a lot of land to the complainant, which lot of land was subsequently conveyed to J. Simpson, the other defendant, with notice of the complainant’s rights. The assistant vice chancellor decided that the complainant was entitled to a specific performance, and as he had not paid the consideration money for the premises that the defendant J. Simpson was entitled to the same, as the assignee of the rights of W. Simpson under the contract; and a decree was entered in conformity with such decision-. The appeal bond was to J. Simpson only, but in the condition thereof it recited an appeal from a decree made in a cause in which Ten Eick was complainant, and J. Simpson and W. Simpson were defendants. But the notices of the appeal, which were served upon the solicitor and the clerk, were entitled “ Andrew G. Ten Eick, complainant, v. John Simpson, defendant.” And they stated that the complainant had appealed from the decretal order of the assistant vice chancellor “ in the above entitled cause.” Notice of the appeal was served upon the solicitor of the respondent on the 10th or 11th of May, and it stated that an appeal bond and notice of the appeal had been filed with the clerk of the third circuit; whereas in fact the appeal bond and notice were not actually filed until some three or four days afterwards.
    Further objections to the regularity of the appeal were, that the appeal bond was approved by the vice chancellor of the third circuit, who, before his appointment to the office of circuit judge, had been the solicitor and counsel in the cause before the assistant vice chancellor; and that the affidavit of justification, annexed to the appeal bond, did not state that the sureties therein were householders. Affidavits were read, however, in opposition to the application, by which it appeared that one of the sureties was both a freeholder and a householder, and that the other was a ^eeholder in the county of Delaware, and that jointly with tffio other persons he rented and occupied in that county, a building at an annual rent of $100.

      J. Rhoades, for the appellant.

      A. Becker, for the respondent.
   The Chancellor.

The notice of the appeal served upon the respondent was undoubtedly irregular, as it was not only wrongly entitled but was also served several days before any appeal whatever had been entered with the clerk of the court; so that if the respondent had searched the office to see if the appeal bond itself was given in the wrong suit, he would not have found an appeal bond in any cause. The affidavit of justification of the sureties was also technically defective, in not stating that they were freeholders in this state, as well as residents therein; or that they were householders; that is, housekeepers and masters, and heads of families. (Van Wezel v. Van Wezel, 3 Paige's Rep. 38.) The rule of this court, which directs the master or other officer who is to approve sureties in any case, to require such sureties to justify, means that he shall not only examine them on oath as to the extent of their pecuniary responsibility, but also as to their residences and other qualifications to become such sureties, according to law and the practice of the court; or- he should require an affidavit as to such qualifications. And if the rule of the court is not complied with in this respect, the proceeding is irregular. In the present case, however, it appears that both the sureties in the appeal bond had the requisite qualifications, the one being a freeholder and the other being a freeholder and a householder also; and both having fixed residences in the state. The irregularity in the justification in this respect was therefore merely technical, and is now remedied by these subsequent affidavits.

I am not prepared to say that any provision of the revised statutes prohibits the vice chancellor from approving the appeal bond, in a case in which he was solicitor or counsel previous to his appointment to office. For his acceptance of the office of circuit judge wholly disqualifies him, under the provisions of the constitution, from holding the office of solicitor or counsel, at the same time. The principle, however, which this court applied to the case of a master who had acted as the counsel for one of the parties in a prior stage of the suit, in the case of McLaren v. Charrier, (5 Paige's Rep. 530,) seems to be equally applicable here. It is the same principle which disqualifies a judge from acting as such, in a cause in which he has been at a previous time the solicitor or counsel of one of the parties. In such cases he should decline to act, in his judicial capacity, in any matter requiring the exercise of judgment or judicial discretion; unless in a case of necessity and to prevent a failure of justice, as in a case where there is no other judicial officer who has the power to do the act required to be done by him.

None of the defects in this appeal, however, are of such a nature as not to be amendable under the provisions of the revised statutes. But as the time for appealing has not expired, the bringing a new appeal will be equally beneficial to the complainant, and will not add to the expense. The appeal must therefore be dismissed with $ 15 costs; but without prejudice to the right to bring a new appeal, if the complainant shall be advised to do so, after the intimation of the opinion of the court, upon the merits of the appeal, which was given upon the argument of this motion.