text:
    Vedder. vs. Evertson.
    May 15.
    Where the testator, by his will, devised his real estate to his wife during her widowhood, with remainder to his six sons in fee, and bequeathed certain personal estate to his daughter, and then directed that if any of his sons or his daughter should die without issue, the survivors should have what was given by the will to the son or daughter so dying: Held, that the limitation over to the survivors was good as an executory devise, and took efi. feet upon the death of one of the sons without issue, although such son survived his mother.
    Where the first limitation over in a devise is executory, all the subsequent limitations will also be executory until the first limitation vests in possession, although in their nature the subsequent limitations are contingent remainders. But the moment the first limitation over vests in possession, the subsequent limitations will be changed from executory devises to remainders, provided they can take effect as remainders.
    If the first limitation over is not of such an estate as will support the second as a remainder, and such second limitation over can only be valid as an executory devise, the nature of the second limitation will not be altered by tire vesting of the first limitation in possession before the happening of the contingency upon which the second limitation depends.
    When a limitation over can be supported as a contingent remainder, it will never be construed as an executory devise.
    Whether a party will be compelled specifically to perform a contract for the purchase of his own land, where there has been no mistake as to the facts on which his title depended ? Quarre.
    This was a bill for the specific performance of a contract for the purchase of several lots of land. One of the objections made on the part of the purchaser to a specific performance was, that since the making of the contract, he had discovered that he was himself the legal owner of a part of the land. Another objection raised on the part of the defendant was, that the vendor had previous to his contract with the defendant agreed to sell a small portion of the land, being the whole of hisiinterest in one of the lots ; and that he had, since the defendant’s purchase, actually conveyed that part of the premises, pursuant to such previous agreement.

      T. Van Vechten,

    for the complainant. The vendor’s title in severalty is under a judgment in partition in a suit commenced and prosecuted by the defendant, an attorney of the supreme court, as plaintiff, in proprio peisona against the vendor and others, stating their respective rights as tenants in common to be derived by devise under the will of Myndert Veeder. The petition alleged the death of Simon Veeder, one of the devisees, without issue, and that his share of the estate passed by the provisions of the will to the other devisees therein named, including the vendor. (1 John. Cas. 516. 2 Id. 51, 60.) By the partition, the lots contracted for by the defendant, except three of them, were assigned in severalty to the vendor; and the three excepted lots he purchased at a sheriff’s sale, under an execution issued by the defendant for the costs of the partition ; of all which the defendant had full notice at the time of the agreement in question. It seems, therefore, not a little ungracious on his part to pretend now that he was ignorant that the rights which he then set up in himself and the other parties as tenants in common, as the basis of the partition, were not as he then stated them. And in the absence of any semblance of proof to give color to this pretence, it cannot merit a serious reply. The defendant contends that the devise to Simon Veeder, and his co-devisees, after the re-marriage or death of the testator’s widow, vested an absolute fee in them ; and that the executory devise over to the surviving devisees, in case any of the testator’s sons died without lawful issue, is nugatory. Non con-stat that the wife survived the testator. Hence there is no evidence before the court to render the doctrine contended for by the defendant’s counsel applicable, namely, that Simon took a vested remainder in fee, in consequence of the devise for life to his mother.
    Admitting, for argument’s sake, that the wife survived the testator, it did not affect the executory devise over of Simon’s share, upon, his death without lawful issue, to the surviving devisees, Upon this point, the defendant is estopped by his own record in the partition suit. Nor is the argument founded upon the assumption that Simon took an estate in tail which was converted into a fee by the statute of descents, &c. more tenable. ' The will gave him a contingent fee, determinable in favor of the surviving devisees in the event of his death without leaving issue. There is nothing in the will to support the position that he was tenant in tail. For that is repugnant to the plain and declared intent of the testator, which must be the governing rule in construing the will. (Jackson v. Billinger, 18 John. R. 368 to 382, and the cases there cited.) The pecuniary charge upon the devisees can have no influence upon the question, inasmuch as by the terms of the will the executory devise over is subject to the charge; nor is it confined, as suggested by the defendant’s counsel, to the slaves, but extends to all the subjects of devise in the will. The allegation that the vendor, by the complainant’s own shewing, had no title to the premises which he agreed to convey, is a gratuitous assertion, directly repugnant to the defendant’s record of partition, and his own agreement set forth and admitted by the pleadings ; which recognizes the vendor’s rights under and according to the partition.
    The release from Van Rensselaer was the result of a compromise, and covered the vendor’s whole interest which he sold to the defendant; and it was made according to the defendant’s own wishes, to clear the way for the consummation of the agreement in question. The amended answer admits that the defendant had notice of the subsisting contract on the part of the vendor to convey the one and three fourth acres to Mc-Kown, when he made the agreement in question. It was therefore no surprize upon him. With full knowledge of McKown’s prior claim, and his refusal to relinquish it, the defendant entered into possession of the residue of the bargained premises, stripped it of the wood, appropriated the whole, to his own use, and disposed of the greater part of the premises to fair . purchasers, and received the consideration 'money. All the defendant can equitably ask for is a rateable deduction from the stipulated consideration, to be ascertained by the report of a master. If the defendant meant to rescind the contract on that ground, he should have done it on the first notice of the agreement, &c. with McKown. (3 John. Ch. Cas. 23. 17 John. Rep. 437.) There is no proof in the cause from which it can be inferred that the premises conveyed to McKown formed any inducement to the defendant’s purchase, but the evidence is abundant to show that he had no wish to rescind the agreement in question, on the ground of McKown’s prior equity to the one and three fourth acres, and his determination to retain and enforce it. (Sugden’s Law of Vendors, 183, 189, 192. 5 Vesey, jun. 828. 10 Id. 306. 1 Id. 221. 6 Id. 675, 678. 7 Id. 270. 2 Bern. Ch. Cas. 118. 1 Id. 140. 2 Dick. Rep. 594. 2 Eq. Cas. Abr. 689.) The rule is that when the main object of the purchaser is not defeated, or the lack of title in the vendor is to an inconsiderable part of the bargained premises, equity will enforce a specific performance at a proportionate price. So also if the purchaser, after notice of the vendor’s defect of title to a part, proceeds to appropriate the residue of the premises ; for this is considered as a waiver of his right to rescind, and an election to have the contract executed for the residue. There might, perhaps, be room to doubt whether a court of law would sustain a suit, when it appeared the plaintiff could not fulfil in toto, although the part which he could not fulfil was small, and the defendant had appropriated the residue with full notice, &c. as is the case here.

      J. L. Wendell,

    for the defendant. The complainant asks for a specific performance, which is resisted on various grounds.

      1. The defendant contends that the eight lots are his own property; that he incautiously and improvidently entered into the contract to buy the same ; and that he is not bound' to perform the contract.
    The first question is, what estate did Simon take in the premises 1 The counsel for the complainant says that he had a contingent fee, determinable by his death without issue. On the part of the defendant, it is contended that Simon took an estate tail at common law, which, by the statute abolishing entails, was converted into a fee simple absolute. By the devise to him, his heirs and assigns, he would have taken a fee; but an estate over being given to his brothers and sister on his dying without lawful issue of his body, the latter words converted the interest devised to him into an estate tail.
    If the devise over be considered an executory devise, still nothing can be claimed under it by the brothers and sister of Simon. The estate was in the first instance given to the widow of Myndert, the father, during widowhood or life, with ■ a limitation over to the six sons of the testator-in severalty in fee, and then a second limitation to the survivor or survivors of the sons, in case of the death of one or more of them, without lawful issue of his or their bodies. In 1759 the testator died ; and the fair presumption is, that his widow did not long survive him. Simon, therefore, must have entered-into possession. In 1787 a judgment was obtained against Simon and his brother Abraham in'favor of John Glen, under which judgment the premises in question were sold in May, 1792, and bought in by William Cooper, under whom, by sundry mesne conveyances, .the defendant claims to be the owner of the premises. Simon did not die until 1799 ; so that, at all events, those claiming under him were in possession from 1792 until 1799. Allowing, therefore, the limitation over to the brothers and sister of Simon to operate as an executory devise, the first limitation having vested in possession, that which followed vested in interest at the same time, ceased to be executory, and became a mere vested remainder, subject to all the incidents of remainders. The rule on this subject is laid down in 2 Saund. 888, i, where it is said, “ with regard to executory devises, it is a rule that wherever one limitation of a devise is taken to be executory, all subsequent limitations must likewise be so taken. However, it seems to be established, that whenever the first limitation vests in possession, those that follow vest in interest at the same "time and cease to be executory, and become mere vested remainders and subject to all the incidents of remainders.” The estate, therefore, of the survivors was turned into a remainder, when the executory devise took effect in favor of Simon. The devise to the 'survivors ceasing to be executory, Simon became seised in fee tail by necessary implication of law, with a remainder expectant in favor of the survivors; and'if our statute abolishing estates in fee tail had not been passed, this remainder might have been destroyed by a fine or recovery by Simon. But by the statute of 1786, the estate being converted into an estate in fee, the trouble of suffering a common recovery was saved. The rule laid down in Saunders was recognized by the supreme court in Lion v. Burtiss, (20 John. R. 489,) and was held not to conflict with Anderson v. Jackson, (16 Id. 382,) which was one of the cases arising under the will of Medcef Eden, and was subsequently confirmed in the court of errors. (2 Cowen’s Rep. 389.)
    In Cruise it is said, when the devise over is after an estate tail, it is not an executory devise, but a contingent remainder. (Cruise’s Dig. tit. 38, ch. 18, § 8, 17, 29, 30, 31.) Again ; a remainder is contingent when it is limited to take effect on an event which may never happen, or on a condition which may never be performed. (Cruise’s Dig. tit. 16, ch. 1, § 8, 9, 46.) And again ; whenever a future interest in land is so devised as to fall within the rules laid down for the limitation of con-contingent remainders, such devise shall be construed to be a contingent remainder, and not an executory devise. (Cruise's Dig. tit. 38, ch. 17, § 11. 2 Cowen’s Rep. 389.)
    It is not intended on the part of the defendant to call in question the principle established by the repeated decisions of our courts on the will of Medcef Eden, that a devise in these words, “ If either of my said sons should depart this life without lawful issue, his share or part shall go to the survivor,” is good as an executory devise. But it is insisted that the case now under consideration depends upon different principles. In the cases arising under Eden’s will, there was but one limitation over between the brothers Joseph and Medcef. Here there are two; for after the estate is given to the widow, it is given first to the sons, and next to the survivors. This case is supposed to be very similar to that of Jackson v. Billinger, (18 John. R. 368,) and it is respectfully hoped it will receive a similar adjudication. There a life estate was given in the first instance to the widow of the testator, then the estate was given testator. The testator died in 1775, and the son in 1817, without issue. In an action by the next heir of the testator of his name, decided in 1820, it was held that the testator’s son took an estate tail by implication; that the devise over could not be supported as a good executory devise, and that the statute abolishing entails converted the estate tail into a fee simple absolute. Stress was laid in the decision of the court upon the word survivor not having been used; but if the court had adverted to the rule found in 2 Sound. 388, i, recognized in 20 John. R. 489, above adverted to, it is supposed, with all due deference, a better reason would have been given for the decision than now appears.
    If this view of the law of this case be correct, it necessarily results that the complainant is not entitled to a decree for specific performance, as it regards the eight lots specified in the principal agreement entered into on the 21st January, 1818 j because the property in question at the time of the agreement belonged to the defendant. And though he agreed to purchase it, he did so in ignorance of his rights, and may now avail himself of the locus penitentioi.

    From the course "of argument of the counsel for the complainant, it seems to be urged that although the premises in question at the time of the agreement were and now are the property of the defendant, still, that having agreed to purchase it as the property of the complainant, he is bound to proceed and pay for it, and thus buy his own property a second time. The proposition is so manifestly unjust and inequitable, that it is deemed unnecessary to submit any other answer than that the defendant entered into the agjeement in ignorance of his rights, and that immediately upon ascertaining his rights, he refused to carry the contract into effect The proceedings in partition, relied on by the complainant, shew that the portion of the estate which had belonged to Simon M. Feeder was described as belonging to an owner or owners unknown ; and that at the very time of the partition. the now defendant indulged the hope that when the law on the subject should come to be settled, the property in question would be adjudged to belong to him.
    The question is submitted to the consideration of the chancellor, whether the limitation over to the survivors applies to the real estate devised to the sons, or whether it does not only apply to the bequest of the slaves made to the sons and daughter of the testator. The provision is, “in case one or more of my herein above named six sons, or my daughter, do or shall happen to die without lawful issue, &c. that the survivor or survivors of my said sons and daughter shall have what I have hereby given and devised him, her or them so dying.” According to a literal construction of this clause, the daughter would take a portion of the real estate, in case of the death of either of her brothers, when it was manifestly the intention of the testator, from the preceding provisions of the will, that the real estate should go only to the sons, and that the daughter should have no portion of it. To apply this limitation, therefore, to the real estate, would not only defeat the intention of the testator, but operate unjustly. For on the death of one of the sons, the daughter would take a portion of the real estate; whereas on her decease the sons would take only a portion of the property bequeathed to them, in common with their sister. But if the limitation is confined to the bequest of the slaves, then it would operate equally. If this should be adopted as a sound construction of the will, the consequence is that there is no limitation over to the survivors, as it respects the real estate; and Simon of course xvas seised in fee of one sixth of the real estate devised to him and his brothers.
    2. The complainant is not entitled to a decree for a specific performance, having failed to perform his part of the contract by hot conveying the whole eight parcels, and having voluntarily disabled himself from so doing.
    It cannot be required of a purchaser to accept a conveyance of part, when the part xvhich was the principal inducement to the purchase cannot be conveyed.
    3. The bill should be dismissed for want of necessary parties. The bill alleges that the defendant has sold several of the lots, and received the consideration money. On the coming in of the answer, the complainant ought to have amended his bill and made those persons parties to the suit.
    4. The bill should also be dismissed for multifariousness, it uniting separate and distinct matters, which ought not to have been joined..
    In support of the proposition contended for by the defendant, that a man who has agreed to purchase his own property is not bound to perform his agreement, and that a court of equity will not compel him to perform it, if he repents of his bargain, I cite the case of Bingham v. Bingham, (1 Ves, 126,) where A., who had purchased an estate of B., which in fact was the estate of A., was allowed to have the purchase money refunded. Here the defendant does not ask to have money refunded, but simply not to be compelled to perform a contract, improvidently made, to purchase his own property. The case from Yesey is cited as well in support of the above proposition, as in answer to the cases cited on the other side.
    The attention of the chancellor is desired to the withdrawal of the replication, which obviates the points made by the complainant, that the facts set forth in the answer being denied, are not entitled to consideration, unless when admitted by the complainant.
   The Chancellor.

It is unnecessary to consider the question whether this court would compel a party to perform a contract for the purchase of his own property, where there was no mistake as to the facts of the case, and the party had merely misunderstood his legal rights; as from an examination of the will of Myndert Veeder, I am satisfied there has been no mistake here, either in law or fact. By that will the testator gave his real estate to his wife ■ during her widowhood, with remainder to his six sons in fee. Certain personal property was also given to his daughter. The testator then adds: “ It is my will, and I do hereby order and direct, that in case one or more of my herein above named sons, or my daughter, do or shall happen to die without lawful issue of his or their bodies, that the survivor or survivors of my said sons and daughter, as above said, shall then have what I have herein and hereby given or devised to him, her or them, so dying as aforesaid.” Simon M. Veeder, one of the sons, died without issue. And if he took an estate tail under the will, it was turned into an estate in fee by the statute, which was passed before his death. In that case the defendant is probably the legal owner of the premises in question, through divers mesne conveyances from Simon. But if he only took a contingent or determinable fee, the premises belong to the complainant, as the representative of one of the surviving brothers.

The cases which arose upon the Eden will, decided in the supreme court and in the court for the correction of errors, have conclusively settled the point that the word survivors in this will refers the devise over to the contingency of Simon’s dying without issue living at the time of his death ; and not to the event of an indefinite failure of issue. (16 John. Rep. 382. 20 Id. 483.) It is supposed, however, that the fact of the first limitation to the mother, and the supposed survivorship of Simon her son, turned this executory devise into an estate tail upon her death. And to support this position, the court is referved to a note hi Saunders. (2 Saund. Rep. 388, i, note 9.) Sergeant Williams there says, “ With regard to executory devises, it is a rule that wherever one limitation of a devise is taken to be executory, all subsequent limitations must likewise be so taken. However, it seems to be established that whenever the first limitation vests hi possession, those that follow vest in interest at the same time, and cease to be executory, and become mere vested remainders, and subject to all the incidents of remainders.” As I understand the case put by the learned annotator, it is directly the reverse of the one now under consideration. He is supposing a case in which the first limitation cannot vest as a valid remainder for want of a particular estate to support it; but where the second limitation would be good as a remainder, provided the particular estate on which it rests could have vested absolutely at the death of the testator. And inasmuch as the owner of the particular estate can have no vested interest in possession during the continuance of the contingent or determinable fee, he cannot, by any mode of alienation, bar the subsequent remainder which has not yet vested in interest. The second limitation over is, therefore, during the continuance of the contingent fee, only valid as supported by an executory devise. But as an ex-ecutory devise prevents an alienation of the property until the contingency happens upon which the limitation is to take effect, it is a settled rule óf law, that if a limitation over can be supported as a contingent remainder, it shall never be construed to be an executory devise. And in accordance with that principle, in the case supposed by Sergeant Williams, the moment the first limitation vests in possession by the happening of the contingency upon which it is to take effect, the second limitation, which in its nature is nothing.but a contingent remainder, is changed from an executory devise into a remainder in fact; and may be barred in the same manner as if the first contingent estate had never existed. The principle, however, that the second limitation vests in interest, and ceases to be executory whenever the first executory limitation vests in possession, is confined to cases where the second or subsequent limitation can vest as a valid remainder, and therefore cannot be good as an executory devise; or where the subsequent limitation in itself never could have been valid as an executory devise, being founded or dependant upon a contingency too remote. And it cannot be applied to a case where such succeeding limitation is in itself valid as an executory devise, but could not take effect as a remainder for want of a particular estate to support it.

Chief Justice Spencer does not advert to this distinction in the case of Lyon v. Burtiss, (20 John. Rep. 489;) nor was it necessary, as that case was rightly decided, upon the ground that the limitation over to the brother and sister of the testator was too remote, being after an indefinite failure of issue. I have looked into all the cases referred to by the chief justice in that case, in connection with the note of Sergeant Williams, and find them to have been cases in which the subsequent limitations were in themselves valid as remainders, or where they could not take effect as executory devises, on the ground that they would not vest during the existence of a life in being at the death of the testator, or within twenty-one years after the determination of that life. (Ca. Temp. Talb. 232.) In the case of Hopkins v. Hopkins, (1 West’s Rep. 615,) Lord Hardwicke says, “ It is admitted on all hands, that if Samuel Hopkins had survived the testator, he would have taken an estate for life in the trust, in possession ; and that all the subsequent limitations intermediate between the devise to him and the devise to the now plaintiff, the first son of Hannah "Dane, would have been contingent remainders.” But as Samuel Hopkins died in the life of the testator, and the next limitation over could hot therefore take effect as a contingent remainder, for the want of a particular estate to support it until the estate became vested by the birth of a second son of John Hopkins, that limitation was held good as an executory devise. The moment, however, that estate vested in the second son as an estate tail, all the subsequent limitations which were valid remainders, and supported on that estate, became vested in interest as contingent remainders, dependant upon the indefinite failure of the issue of such second son. And these limitations having once vested as valid remainders, upon a contingency which was too remote to support or sustain them as executory devises, they must have entirely failed upon the death of the second son, leaving no person in esse to take the estate under the will, had they not been preserved by the legal title which was vested in the trustees. The several limitations over, by the will of the testator in that case, were not successive executory devises, which certainly may be made by the same will, but they were originally so many parts of the same executory devise. And when a particular estate once vests in the first, taker, the estate thus vested being capable of supporting the other parts as remainders, all the subsequent limitations, must be considered and-treated as remainders merely. (See 1 West’s Rep. 617.)

The case under consideration, however, is entirely different from those to which I have referred. Here the first limitation over, to the sons, upon the death or marriage of the" mother, was an estate in fee, subject to the contingency of then- dying without issue at the time of their respective deaths. Being a conditional fee, the limitation over to the survivors on the happening of the contingency, was in itself a separate and distinct executory devise, and could not be valid as a remainder. It is therefore immaterial whether the conditional fee vested in the sons by the first limitation was a remainder, or only an executory devise. Although the estate vested in Simon at the death of his mother, the subsequent limitation could not take effect as a remainder ; and it must of necessity remain an executory devise, depending upon the determination of the fee simple conditional by his death, without lawful issue then existing. The complainant had therefore the legal estate in the property at the time of the first contract, and he is entitled to a specific performance of that contract; unless the conveyance of the small piece to McGown has discharged the defendant from his agreement. As to the lots acquired under the partition sales, I cannot see that there is any pretence for disputing the validity of the title. The piece conveyed to McGown was separate and distinct from the other lots embraced in the agreement, and the defendant admits he knew at the time of his purchase that the complainant had promised to convey it to McGown. I think, therefore, the consummation of the bargain with the latter affords no valid excuse to the defendant for refusing to complete his purchase of the residue. If he had been informed that the contract with McGown was in writing, so as to be legally binding upon the vendor, the defendant would now be entitled to receive the consideration money due from McGown at that time, and nothing more ; he paying for the same at the rate agreed upon in his own contract with Vedder. Under the circumstances, however, he is entitled to the consideration money received from McGown, with interest thereon, or he may elect to have an allowance made for that piece according to its relative value, as compared with the other lands contracted for at the same time.

There must be a decree for a specific performance of the several contracts as stated in the complainant’s bill, with the exception of the piece of land conveyed to McGown. And it must be referred to a master, to take an account of what is due to the complainant for principal and interest; making a proper deduction for the lot conveyed to McGown. The interest on the purchase money is to be computed from the time of the complainant’s offer to complete the purchase, so far as it respects the lots of which the defendant had not taken possession before that time, and as to the residue of the property from the time he took possession, after the contract with the complainant. The decree must also contain the consequential directions, upon the coming in and confirmation of the master’s report, for the payment of the amount reported due, with the interest thereon, and for the conveyance of the property upon the receipt of such payment. And as the defendant appears to have been wholly in fault in this case, he must pay to the solicitor of the complainant his costs in this cause to be taxed.


source: Caselaw Access Project

author: The Chancellor.

license: Public Domain

text:
    Lawrence vs. Bolton and wife.
    May 15.
    In ordinary cases the defendant is not entitled to notice of the application for leave to file a supplemental bill. Notice of the motion is necessary only where the complainant aslcs for a preliminary injunction or some other special relief upon the matter of the supplemental bill, previous to the time for the appearance of the defendant thereto.
    If a supplemental bill is filed without any sufficient grounds, the defendant must make the objection by plea, answer or demurrer.
    If a party to the original bill does not voluntarily appear to a supplemental bill, or bill of revivor, the complainant must proceed by subpoena to obtain an appearance to the same.
    Where the complainant, instead of taking out a subpoena on a supplemental bill, entered an order that the defendants answer the same within forty days, and the defendants thereupon applied for and obtained an order for further time to answer, it was held that they had waived the irregularity.
    Upon a mere amendment of the complainant’s bill, no new subpoena is necessary, except to bring in new defendants who are made parties by the amendment.
    After the proofs in the original cause were closed, the complainant applied to the chancellor and obtained an ex parte order for leave to file a supplemental bill. On the filing of such bill, and without serving any subpoena to answer the same, the complainant’s solicitor entered a common order that the defendants answer the supplemental bill within forty days. After the receipt of a copy of the bill, and notice of the order, the defendants’ solicitor applied to an injunction master and obtained an order extending the time to answer. He also gave notice of an application for a dedimus to take the defendants, who were out of the state. This notice was after-wards countermanded ; and the defendants’ solicitor then gave notice of the present application, to set aside the supplemental bill for irregularity, or for such other relief as the defendants might be entitled to upon the facts set forth in their petition.

      J. Rhoades, for the complainant.

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

The defendants’ solicitor was under b mistake in supposing he was entitled to notice of the application for leave to file the supplemental bill. Such notice is only necessary where the complainant wishes to obtain a preliminary injunction, or some other special relief founded on the supplemental bill, previous to the time for the appearance of the defendants in the supplemental suit. In general, the leave to file such a bill is obtained upon an ex parte application. (2 Paige's Rep. 335.) And if it is filed without any sufficient grounds, the defendants must make the objection by plea, answer or demurrer. (1 Paige's Rep. 200. 2 Mad. Rep. 53, 387. 17 Ves. 144.) The bill was regularly filed in this case; but it was irregular for the complainant to enter an order to answer the same, without taking out process of subpoena, and before the defendants had appeared to the supplemental bill. By the practice of the court of chancery in this state, no subpoena ad respondendum is necessary upon a mere amendment, unless there are new defendants. But upon a supplemental bill, or bill of revivor, the complainant must proceed by subpoena, unless the defendant elects to appear voluntarily. (1 Brown's Ch. Prac. 267.) The defendants in this case have waived the irregularity of the order, to answer in forty days, by appearing before the injunction master and obtaining further time to answer the supplemental bill. As the issuing of the subpoena in this case, where the defendants were actually before the court in the original suit by their solicitor, was a mere matter of form, there is no reasonable grounds for interfering to correct the irregularity at this time; except so far as is necessary to give the defendants an opportunity to make then: defence. As they are residing out of the state, they are to have two months from the time of the entry of the order upon this decision, to plead, answer or demur to the supplemental bill, or the same may be taken as confessed against them.

As both parties are in the wrong as to their proceedings, neither is to have any costs on this application.


author: ThE CHANCELLOR.

text:
    The Elder or Minister, Deacons and Trustees of the First Baptist Church in Hartford vs. Witherell and others.
    Where property is conveyed for the use of an unincorporated religious society, and such society is afterwards "incorporated under the general act authorizing the incorporation of religious societies, the legal title to such property thereby becomes vested in the corporation.
    The statute authorizes the members of the congregation, and not merely the members of the Christian church connected with such congregation, to incorporate themselves ; and the majority of the stated hearers in such religious society are authorized to elect trustees and incorporate the society, ^although the persons composing such majority may have been excommunicated by the church judicatories for heterodox opinions or unchristian practices.
    The members of the church have no greater rights as corporators than any other members of the congregation, who statedly attend divine worship with them.
    The legal tribunals of the state have no jurisdiction over the church, or the members thereof, as such ; and the ecclesiastical judicatories are hot authorized to interfere with the temporalities of a religious society or congregation.
    A church judicatory cannot remove a clergyman from his situation, as minister of a society or congregation, without the consent of a majority of the members of the congregation, or of their legally constituted trustees, if the society is incorporated.
    It seems that the court of chancery will not interfere to prevent the trustees of a religious society from employing a particular individual as their clergyman, although his religious tenets should be at variance with those of the original founders of the society, and from whom its temporalities were derived.
    The pew owners are only entitled to the use of their pews for the ordinary purpose of sitting therein during divine service. But they may maintain case, trespass or ejectment, according to [the circumstances, if they are improperly disturbed in the legitimate exercise of tlieiv legal right to use their pews in that manner. But in other respects they have no greater rights in the church than the other members of the congregation.
    May 15.
    Tins was an application for an injunction. The complainants’ bill stated, in substance, that previous to October, 1813, a Baptist church or society was organized in Hartford, in fellowship with, and under the government of the regular Baptist Association of that part of the state of New-York. That on the 9 th of October, 1813, A. Norton and wife sold and conveyed to that society, by the name of The elder or minister, deacons, wardens or vestrymen, and their successors in office, of the first Baptist church in Hartford,” a lot of ground for the purpose of erecting thereon a Baptist meeting house, for the sole and only use of the said Baptist church and society or , congregation, as such, in regular standing and fellowship with such association. That a meeting house was erected on the lot by the said society, and the expense thereof was defrayed by a sale of the pews. That the society, though not legally incorporated, conducted their temporal and spiritual affairs in harmony, until about October, 1839, when the defendant G„ Witherell, their officiating elder or minister, and the other defendants, together with others composing a majority of the church, entered upon and pursued a course of conduct so proscriptive, unchristian,.and utterly at war with the principles of of the Baptist church and of Christianity, towards the minority the church and society or congregation, that the latter felt themselves bound to dissent from their proceedings, and to appeal to the Washington Baptist Association, which was the regular tribunal constituted by all the Baptist churches in the county of Washington, to take cognizance of, and decide upon all ecclesiastical grievances of that and the like nature ; a decision of which association, or of a council appointed by them, was final and conclusive, unless appealed from. That in August, 1831, an ecclesiastical council of the association assembled, and after hearing the complaint of the minority, the. council decided that such minority was tire regular Baptist church in Hartford. That the minority being thus recognized as the regular church, and the decision of the counoil not being appealed from, they caused themselves to be dujy incorporated, under the act of the legislature, in November, . , . 1831, and elected nine of their number trustees of such mcorpovated society; and that the certificate of their election and incorporation was duly acknowledged and recorded. That the complainants afterwards possessed themselves of the meeting house and other temporalities of the church, except the communion vessels andthe records of the church which some of the defendants withheld from them. That the complainants employed a Baptist clergyman, in regular standing, to preach for them and administer the ordinances in the church; but when they opened the church, on the Sabbath for divine worship, the defendant Witherell, acting in concert with the other defendants, obtruded himself into the pulpit, and excluded the complainants minister from preaching. And that the defendants then took possession of the church, which they still retained. The complainants also stated that the corporators whom they represented owned more than two thirds of the meeting house, and that the defendants and those who adhered to them owned less than one third ; and that the defendants, since the decision of the council, had wholly withdrawn themselves from the fellowship, communion and government of the Baptist Association. The bill prayed that the custody and control of the meeting house and other temporalities of the church might be decreed to belong to the complainants and their successors, to the end that the same might be appropriated to the uses for which the house was originally erected ; or that an account might be taken of the interests of the complainants, and of the corporators they represent, in the meeting house and pews, and that the defendants might be compelled to pay them the amount thereof for the benefit of their church and society. The bill also prayed for general relief; and for a preliminary injunction, restraining the defendants from occupying the pulpit, or impeding the complainants from celebrating divine worship in the church by a Baptist minister in regular standing, and from using or interfering with the temporalities of the church.
    Notice of the application for an-injunction was given to the defendants. And they put in an affidavit and certificate, showing that on the 6th of September, 1831, in pursuance of the usual notices given, by the defendant Witherell, from the pulpit, a meeting was held for the purpose of incorporating the society; that five of the defendants, together with another person, were chosen trustees; that two of those persons, who were elected to preside p.t that meeting, certified the election of such trustees, and also certified that the corporation was to be called and known by the name or title of The Trustees of the First Baptist Church and Society of the town of Hartford and that the certificate was duly acknowledged and recorded, as required by the statute.

      S. Stevens, for the complainants.

      J. Gravy, for the defendants.
   ThE CHANCELLOR.

it is evident, from the affidavit on the part of the defendants, that here are two corporations, or bodies claiming to be corporations, contending for the possession of this meeting house. If the_ only contest between these parties is as to which is the corporation legally entitled to the possession of the temporalities of the church or society originally formed in Hartford, I think the complainants have mistaken their remedy. They should have settled that right either by an action of trespass against the individuals who took possession of the pulpit, or by an action of ejectment to recover possession of the meeting house. By referring to the statute relative to the incorporation of religious societies, (S R, S. 295, § 4,) it will be found that the trustees of a church or society, when legally incorporated, are authorized to take into their possession all the property of the society, whether the same was given directly to such church or society, or to any other person for their use; and they are to hold such property as fully and amply as if the right or title thereto had been originally vested in the trustees. I think the only rational construction which can be given to this part of the statute is, that if the grantor or any other person held the estate originally in trust for the church or society, the legal estate is transferred to the corporation whenever the requisites of the statute are complied with, so as to render them legally competent to take property in their corporate character.

In the case of The Trustees of the Philadelphia Baptist Association v. Hart's Executors, (4 Wheaton's Rep. 1,) the supreme court of the United States decided that an unincorporated association could not take land by devise to them in the name of their society, and that a devise of that description could not be executed by a court of chancery, as a charity by the common law. But, in a subsequent case, the same court sustained a bill by the nominal trustees of an unincorporated religious society, to protect their right to a lot of ground, granted for the use of such society by the name of “ The German Lutheran Church.” (Beatty & Ritchie v. Kurtz, 2 Peters' Rep. 566.) And in the late case of Inglis v. The Sailors' Snug Harbor, (3 Idem. 114,) they held a devise valid, which provided for the vesting of the property in a corporation to be thereafter created. Similar decisions have been made in several of the state courts in respect to lands granted or devised for pious uses, or other purposes of charity. (1 Greenl. Rep. 271. 9 Mass. Rep. 44.) At the time the deed of Norton and wife was executed, conveying the property to this society, by their associate name, the statute was in existence, by which the members of the society were authorized to incorporate themselves whenever they thought proper ; and by which statute it was declared that the legal title to property thus conveyed should, in that event, vest in the corporation. The legal title being in the corporation which was first properly constituted, the parties must be left to their legal remedy to ascertain whether the complainants are entitled to the possession of the property, or the corporation of which a part of the defendants are trustees, if there can be any doubt on that subject.

It may, however, be proper, as it may save unnecessary litigation to these parties, to state briefly my views on that question. The complainants appear to have acted on the supposition that the decision of the ecclesiastical judicatory, that a certain portion of the members of the Baptist church in Hartford were heterodox in doctrine or practice, and were not the true church, must have a legal effect upon the incorporation of the members of this religious society. But I apprehend that in this they have overlooked the distinction between the congregation, and the church strictly so called, which comprises only a part of the congregation or society. The church consists of an indefinite number of persons, of -one or both sexes, who have made a public profession of religion ; and who are associated together by a covenant of church fellowship, for the purpose of celebrating the sacrament, and watching over the spiritual welfare of eacli other. But a religious society, or congregation, as recognized by the third section of the statute providing for the incorporation of religious societies, is, with us, what is usually denominated a poll parish, in some of the neighboring states. It consists of a voluntary association of individuals or families, united for the purpose of having a common place of worship, and to provide a proper teacher to instruct them in religious doctrines and duties, and to administer the ordinances of baptism, &c. Although a church, or body of professing Christians, is almost uniformly connected with such a society or congregation, the members of the church have no other or greater rights than any other members of the society who statedly attend with them for the purposes of divine worship. Over the church, as such, the legal or temporal tribunals of this state do not profess to have any jurisdiction whatever, except so far as is necessary to protect, the civil rights of others, and to preserve the public peace. All questions relating to the faith and practice of the church and its members belong to the church judicatories, to which they have voluntarily subjected themselves. But, as a general principle, those ecclesiastical judicatories cannot interfere with the temporal concerns of the congregation, or society,"with which the church or the members thereof are connected. It follows, from this view of the subject, that these defendants," although they may have been rightfully excluded from the communion and fellowship of the Baptist church, on account of anti-sabbatarianism, or some other heresy, as suggested by the complainants? counsel, yet they may still not only be legal voters as members of the congregation or society, but they may be elected trustees, and have the management of the temporal concerns of the congregation.

The affidavit on the part of the defendants shows that the incorporation of the society, on the 6th of September last, was made upon due notice from the pulpit,, in the usual form, as prescribed by the statute : and that the members of the con. ’ gregation generally attended and voted for trustees. Although one of the notices must probably have been given by Elder Witherell after the decision of the ecclesiastical council, this did not render the notice invalid. It is not pretended but that he was at that time the minister in fact of the congregation; although, as a member of the scismatic part of the church, the council had decided against him. If I am correctly informed as to the usages of the calvinistic Baptists, it is to ordain their clergymen to the work of evangelists, or ministers of the gospel at large, and not as the ministers of any particular churches or congregations ; and they preach the gospel and administer the ordinances by virtue of that general authority, and not in consequence of their connection, by church membership, with a particular church. Although as a member of this church, Elder Witherell may have been rightfully excluded from church fellowship with the Baptist Association of Washington county, it is not alleged in the bill that the council had any authority to deprive him of the privileges of the ministry. And they certainly had no right to remove him from his situation as minister of any particular society or congregation, without the consent of the majority of the members thereof; or of their legally constituted trustees, if they were incorporated. My opinion, therefore, upon the facts now before me, is, that the corporation organized on the 6 th of September succeeded to the temporal rights of this society; and that the trustees of that incorporation are legally entitled to the possession and control of the meeting house and other temporalities of the congregation.

The fact that the corporators whom the complainants represent own two thirds of the pews, cannot alter the rights of the parties. The grant of a pew in perpetuity does not give to the owner an absolute right of property, as in a grant of land in fee. The grantee is only entitled to the use of the pew, for the purpose of sitting therein during divine service. (Sayer's Rep. 177. 1 Phil. Rep. 323. 3 Picker. Rep. 344. 4 New-Hamp. Rep. 480. 7 Picker. Rep. 138.) But the owner of the pew may maintain case, trespass or ejectment, according to the circumstances, if he is improperly disturbed in the legitimate exercise of his legal right to use his pew for that purpose.

The question whether the trustees of this society can lawfully change the nature of the institution, as originally established, cannot be decided between the present parties. If the defendants, as trustees of the corporation which has the legal control of the temporalities of this society or congregation, abuse the trust reposed in them by the corporators or those for whose benefit they hold the property, and misapply the funds of the society, I am inclined to think this court, at common law, has power to compel them to account for such misapplication; notwithstanding the provision in the revised statutes excepting religious incorporations from the visitorial power which is expressly given to the chancellor in relation to ordinary corporations. (2 R. S. 461, art. 2.) But it must be 'a most plain and'palpable abuse of power, which will induce this court to interfere as to any dispute growing out of religious or sectarian controversies. In the case of The Attorney- General v. Pearson, (3 Meriv. Rep. 264,) to which I was referred, on the argument, as a leading case on this subject, Lord Eldon did interfere to prevent the trustees of a church erected for Trinitarian Protestant dissenters from being converted into an Unitarian chapel; although a great portion of the members of the congregation were said to have embraced the new doctrines. It must, however, be recollected that the chancellor was there administering the equity of the statute, (43 Eliz. ch. 4,) relative to charitable uses; which statute is not in force here. His lordship puts his decision upon the ground that the court is bound to see the trust executed according to the intention of the original founders of the charity, without enquiring whether the doctrines intended to be taught in that particular church be right or wrong. In the case under consideration I presume the original founders of the Baptist church in Hartford, in conformity with the generally received opinion among calvinistic Baptists, believed the holy sabbath was of Divine institution; and that they intended such doctrines should be taught in that church and congregation. Upon that supposition, if Elder Witherell is permitted by the trustees to inculcate a different doctrine in his public discourses in this church. I presume Lord Eldon would consider it such a departure from the original establishment as to justify his interference. Even in that case, however, he would require the facts to be stated in the bill, so that the defendants might take issue thereon. Where this court is obliged to administer a trust, the chancellor cannot put his conscience into the keeping of any ecclesiastical or other tribunal. But the nature of the original trust, and the particulars in which it has been violated, must be stated in the pleadings; so that the court may see in what that violation consists. For aught that appears on this bill, the council of the association may have decided against Elder Witherell because he preached some other doctrine, from the pulpit, as inconsistent with the original foundation of the society as anti-sabbatarianism ; but which this court might consider a political rather than a religious heresy. I confess I have always entertained serious doubts whether any civil tribunal in this state could interfere to prevent the majority of the corporators in a religious society from introducing such changes, in the doctrines or modes of worship in their churches, as they might deem expedient; and which they could introduce through their trustees, elected in the manner prescribed by law. For myself, although my opinions are fixed and settled as to the essential doctrines of Christianity as taught in the church to which I belong, I am unwilling, as a civil judge, to assume the responsibility of deciding upon the correctness of the religious tenets of others, either in matters of faith or otherwise. Neither am I prepared to say that it would be right, or expedient, to adopt the principle of Lord Eldon here, where all religions are not only tolerated, but are entitled to equal protection by the principles of the constitution. Upon Lord Eldon’s principle, a society of infidels, who had erected a temple to the goddess of Reason, could not, upon the conversion of ninth tenths of the society to Christianity, be permitted to hear the word of life in that place where infidelity and error had once been taught. And upon the same principle, the newly created equity jurisdiction in a neighboring state might find itself constrained to order some of the parishes within its limits to employ religious teachers who should inculcate the doctrine of witchcraft as it was taught in their churches at the time of their first organization. If courts are unwilling to go these lengths, thejr must abandon the principle, or assume the responsibility of deciding for the consciences of others what are and what are not essential differences of opinion in matters of faith, as well as of practice.

Without pursuing this subject further, it is sufficient for the decision of this application to say, there is nothing in this bill to authorize the court to grant the relief which is now asked for against these defendants.

The motion for an injunction is therefore denied, with costs,


author: The Chaecellor.

text:
    In the matter of Hemiup.
    Where, upon an application to confirm a sale of real estate, made under an irregular order of a surrogate, it appeared that at the time the order for sale was made, there was personal estate in the hands of the administratrix more than sufficient to pay all the debts of the intestate, and there was no evidence that any part of the personal estate, or of the proceeds of the sale of the real estate, ever came to the hands of the heirs at law: Held, that the assignee of the purchaser was not entitled to an order confirming the sale, although the latter purchased the estate at the sale in good faith, without notice of the fraud committed by the admisiratrix.
    The application to the chancellor, under the statute, to confirm a sale under an irregular and illegal order of a surrogate, proceeds upon the ground that the sale was unauthorized, and that the legal title remains in the heirs at law; and where the equities of the parties are equal, they will be left to their legal rights.
    .Under the provisions of the revised statutes, the court of chancery may award costs against a party to any proceeding in equity, whether such proceeding was originally instituted in such court, or brought there by appeal.
    Where it is referred to a master to examine and report as to particular facts, or as to any other matter, it is his duty to draw the conclusions from the evidence before him, and to report such conclusions only; and it is irregular and improper to set forth the evidence, in his report, without the special direction of the court.
    Where the master incorporates the testimony into his report without the special direction of the court, although it is done upon the solicitation of counsel, he will not be allowed for it on the taxation of his costs.
    If the conclusion which the master is required to draw is a question of law, and not a mere legal presumption of a fact, he is permitted, in the exercise of a sound discretion and without an order for that purpose, to make $. special report submitting the legal question to’the decision of the court.

      May 15.
    Upon a special report, the master should not report the evidence; hut he must draw all the conclusions of fact, as in a special verdict, leaving the question of law alone for the decision of the court.
    The master is only permitted to make a special report where by the order of reference some equity is reserved, so that the case must be brought before the court for further directions, upon the coming in of the report; but where all the consequential directions are contained in the decree or order of reference, the master must decide the questions of law as well as of fact which arise on the reference; so that the decree may be executed upon the confirmation of the master’s report in the register’s office, or otherwise.
    This was an application, under the provisions of the revised statutes, to rectify certain irregularities in the sale of real estate. (Vide % Paige’s R. 817, 8. C.) Upon hearing the parties, the court referred it to a master to enquire and report whether any, and what debts were due from the decedent, and whether he left sufficient property to pay those debts; and if he did not leave sufficient property for that purpose, the master was then directed to report what amount of personal property he did leave which came to the hands of the administratrix; whether he left any real estate other than the lot in question on this application ; whether the purchase money on the sale was actually paid to the administratrix, and at what time; whether the purchase was made for the sole benefit of the person to whom the conveyance was made, and under whom the petitioner derived his title; and what disposition had been made of the purchase money, &c. The master, instead of reporting specifically upon the several points submitted to his decision, reported a mass of facts and documentary evidence, leaving the court to draw its own conclusions from that evidence as to the points which he had been required to examine and decide. Upon the coming in of that report, both parties were heard by their counsel upon the merrits of the application.

      J. Rhoades, for the petitioner.

      S. M. Hopkins, for the heirs of the decedent.
   The Chaecellor.

The master has entirely mistaken his duty in reporting the evidence to the court, when it was referred to him to draw certain conclusions of fact. When the court refers it to a master to examine and report as to the existence of non-existence of a fact, or as to any other matter, it is his duty to draw the conclusion from the evidence produced before him, and to report that conclusion only. And it is irregular and improper for him to set forth the evidence in his report, without the special direction of the court. If either party is dissatisfied with the conclusion at which the master has arrived, he may except to the report; and may then obtain from the master certified copies of the depositions, or other evidence on which the decision of the master was founded 8 to be used on the argument of the exception. If the master incorporates the testimony into his report without the special direction of the court, he cannot be allowed for it on the-taxatian of costs, although it was done upon the solicitation of the counsel. Thus, in Dixon v. Dixon, (3 Brown’s Ch. Cas, 510, n,) where it was referred to a master to inquire whether a legatee was living or dead, and if dead, when and where he died, and who were his next of kin; and the master reported the evidence, from which it appeared ■ that the legatee went to the East Indies, and had not heen heard of for twenty-eight years. Lord Alvanley directed the master to revise his report, and to draw the conclusion whether the legatee was dead, and if so, whether he died in the lifetime of the testator. A similar practice was pursued by Lord Eldon in Lee v. Willeck, (6 Vesey’s Rep. 605.) Where the conclusion which the master is required to draw is strictly a question of law, and not a mere legal presumption of fact, the master may sometimes be permitted, in the exercise of a sound discretion, and without any previous order for that purpose, to make a special report submitting the legal question to the decision of the chancellor, where the case must necessarily come before the court for further directions upon the coming in of the master’s report. Even in such cases, however, the master is not at liberty to report the evidence, but he must himself draw all the conclusions of fact, as in a special verdict, leaving the question of law alone for the decision of the court. (Dutchess of Marlborough v. Wheat, 1 West’s R. 9. 1 Newl. Pr. 3 Lond. ed. 555.) Where if all the directions consequent upon the master’s report are contained in the previous decree or order

8 of reference, it will be his duty to decide all questions of law as well as of fact which may arise upon the reference; so that the decree may be executed upon the confirmation of the report in the register’s office, or by the court, if exceptions are taken thereto.

In this case the master was directed, among other things, to report whether the decedent F. Backenstose left sufficient personal property to pay his debts. But instead of reporting as to that fact, the master has stated the amount of the debts, and annexed copies of the inventories filed by the administratrix, as the evidence of the personal estate of the intestate which came to her hands to be administered. In the absence of all other proof, the inventory is undoubtedly presumptive evidence of the amount of the personal estate. The master, however, should have drawn the conclusión of fact from the testimony; which testimony is improperly set out in the report, or attached to the same in the form of schedules. Correct practice would require that this report should be referred back to the master, with directions to him to revise it so as to conform to the directions of the order of reference. But as there are sufficient facts before the court to enable it to dispose of this cause without subjecting the parties to further expense, I shall endeavor to settle the case upon its merits, without further delay. In justice to the master, it may be proper to state, that he has-merely mistaken his duty; for it appears by the report that most, if not all of the impertinent matter set out in the report and the schedules, was inserted at the request of the solicitors of one or both of the parties. But the order of Lord Coventry expressly prohibited masters from making special certificates of matters in their reports upon the importunities of counsel, or their clients, unless required by the court to do so, or their own judgment, in respect of difficulty, led them to it. (Frac. Reg. 377.)

From the evidence in this case there is no doubt that the person under whom the petitioner claims title purchased the property, at the sale by the administratrix, in good faith ; and that the administratrix has actually received all the purchase money on such sale. But it also appears that the intestate owed less than $700, and that the personal estate which came to the hands of the administratrix was more than sufficient to pay those debts, and the expenses of the administration. And no evidence is produced on the part of the petitioner that any portion of the proceeds of the real or personal estate ever came to the hands of the heirs at law, or was applied for their benefit. Under these circumstances, the counsel for the petitioner supposes it a matter of course to have the sale confirmed; such, however, could not have been the intention of the legislature in passing the law under which this proceeding has been instituted. The application proceeds upon the ground that the sale was unauthorized, and that the legal estate still remains in the heirs at law. If, therefore, the equities between the parties are equal they must be left to their legal rights. The sixty-first section of the statute directs the chancellor to make such order for confirming the sale and conveyance as he shall deem equitable, provided he is satisfied the sale was made fairly, and in good faith. (2 R. S. 111, § 63.) But it maybe considered at least doubtful whether the sale was made fairly and in good faith, if the administratrix obtained an order to sell the real estate, when there was sufficient personal property in her hands to pay all the debts. ' If she has committed a fraud by which the whole of the purchase money has been lost, it has not been lost by the fault of the heirs, but through the carelessness of the purchaser, who has paid his money without first ascertaining that she had a legal power to sell. It cannot be said in this" case that the heirs have sustained no injury from the neglect to have a discreéí person joined with the administratrix in the sale. Under the act of 1813, the monies were to be brought into the office of the surrogate for distribution, where the whole real estate was sold ; and the proceeds of the sale were only to go into the hands of the personal representatives, as assets, upon the sale of a part. As the whole of the real estate was sold in this case, if a discreet person had been joined with the administratrix in the sale, he would have been bound to see that the purchase money was paid over to the surrogate ; and he would have been personally liable for any neglect of his duty in this respect. The legislature only intended to authorize the chancellor to make a decree, upon a summary proceeding of this kind, to correct a mere defect of form, where the spirit of the statute had been complied with. They could not have intended to authorize the taking of the property of the heirs at law and giving it to the purchaser, where the equities of the heirs were coupled with the legal estate and were prior in point of time, if not superior in character, to his. As the order of the surrogate, in the form in which it was made, was wholly unauthorized, it is not even prima facie evidence of the facts stated therein. It was for this reason, among others, that the master was directed to ascertain whether in point of fact the situation of the personal property and of the debts was such as to justify the surrogate in making an order to sell the real estate. An opportunity was also afforded to the petitioner, at the same time, to show that the purchase money had been received by the heirs at law, or had been appropriated for their benefit by the administratrix, if such was the fact. As the petitioner has not succeeded in showing any equity as against the heirs in either of these respects, I cannot, consistently with the equitable principles which govern this court, divest the heirs of the legal title to this property for which they have received no equivalent.

If the heirs have any remedy against the administratrix, or her sureties, to recover the amount which has been received by her on the sale of this property, this court, upon a proper application, may perhaps authorize the petitioner to enforce that remedy in the name of the heirs for his own benefit; upon his furnishing them with a sufficient indemnity against the costs of such a proceeding. I am not authorized to settle that question, however, upon this summary application.

Upon the facts disclosed in' this case, it is at least doubtful whether the whole of the proceedings before the surrogate are not void, for want of jurisdiction, even if this formal defect in the order of sale could be cured. If so, the sureties in the administration bond may not be liable for the monies received on the sale. The petition must therefore be dismissed ; but without prejudice to the right of the petitioner to proceed by bill against the heirs, and the administratrix and her sureties, or any, or either of them, as he may be advised. And the .injunction heretofore granted in this matter must be dissolved.

In the matter of The Masters of the Bedford Charity, (2 Swanston's Rep. 532,) Lord Eldon decided he had not power to give costs upon a summary proceeding, where the law was silent as to costs. But by the revised statutes the power of this court is general, in relation to costs. And in all cases, where no special provision is made by law, the costs of all suits and proceedings in equity, whether originally commenced in this court, or brought here by appeal, are to be paid by such party as the court shall direct. (2 R. S. 613, § 2.) I have no doubt that this is a proceeding in equity within the meaning of the statute, upon which costs may be awarded acgainst the petitioner. But as it is a case of peculiar hardship on his part, and the petition has been presented and prosecuted in good faith, I do not consider it my duty to charge him with the costs of the adverse parties.


author: The Chancellor.,

text:
    Cassidy vs. Meacham & Pond.
    May 16.
    A creditor’s bill cannot be filed until after the return day of the execution issued upon the complainant’s judgment, although the execution should be actually returned before that time.
    The complainant must state in his bill the issuing of the execution, the time it was returnable, and the actual return of the sheriff thereon.
    Tiie complainant was a judgment creditor of the defendants, and applied for an injunction under the statute, (2 R. S'. 174, § 38,) to restrain them from disposing of their property, &c. The bill stated the issuing of a writ of fieri facias on the judgment, returnable at a certain day therein mentioned that the same was delivered to the sheriff on the first of May, instant; and that he made a return thereon that the defendants had no goods or chattels, &c. The chancellor suggested that the allegation in the bill as to the time when the execution was returnable was insufficient; that, for aught that appeared, the sheriff might have made his return upon the execution, and filed it in the office, although the return day had not in fact arrived. The counsel for the complainant admitted that such was the fact in this case; but he insisted upon the right of the complainant to file his bill as soon as the execution was actually returned unsatisfied, although the return day had not yet arrived.

      J. King, for the complainant.
   The Chancellor.,

Perhaps a return made by the sheriff on an execution before the return day may be valid by relation, after the expiration of the time the execution has to run. Until the return day, however, it would be the duty of the sheriff to seize and sell any property of0the defendants which could be found within his bailiwick. The execution cannot-therefore be considered as legally returned unsatisfied until after the return day. The jurisdiction of this court to apply the property of the defendants, which is beyond the reach the execution at law, to the satisfaction of the debt due to the judgment creditor, proceeds upon the ground that he has exhausted his remedy, at law. The creditor must therefore in his bill set out the issuing of the execution, the time at which it was returnable, and the actual return of the sheriff thereon, in such a manner that the court can see that the remedy at law has been legally exhausted. The intention of the legislature was to adopt the principle settled by the court for the correction of errors, in Hadden v. Spader, (20 John. R. 554;) and not to establish an arbitrary rule, by which the defendant might be harassed by a suit in chancery when he had sufficient property which" could be reached at law during the life of the execution. And it would probably be a valid defence to a bill of this ldnd to show that the complainant had colluded with the sheriff to prevent a levy upon the defendants property; or that he had issued his execution into a remote county when he was aware of the fact that the defendant had sufficient property in the county where he resided, or carried on his business, to satisfy the judgment; and which county was also within the jurisdiction of the court of law. In ordinary cases, upon judgments in the supreme court where the execution may be issued into any county, it might be sufficient to set out the issuing of the execution, the time when it was issued and made returnable, and that it had been returned unsatisfied, leaving the defendant to show, by his plea or answer, that the complainant had not in good faith exhausted his remedy at law, according to the spirit and meaning of the statute. To constitute a .valid defence, however, it would probably be necessary for the defendant to show not only that he resided, or had a place of business in some other county, but also that he had visible property there, out of which the execution might have been satisfied if the complainant had exercised due diligence to ascertain the fact.

In the case under consideration, the court cannot legally know or presume, previous to the return day of the execution, that the judgment will not be .satisfied. Although the sheriff cannot now find property, the defendants may before that time satisfy the execution out of the equitable funds in their hands which cannot be levied on by him. If they keep the complainant out of his debt beyond that time, it will be their own fault that they are charged with the extra expense of a chancery suit, and subjected to the inconvenience of an injunction and receivership depriving them of the control of their whole property.

The application for an injunction must be denied.


text:
    Wiswall vs. Hall and wife.
    The objection to the jurisdiction of the court, that the complainant has an adequate remedy at law, should be made by plea or demurrer, or should be distinctly stated in the answer of the defendant
    Where the vendor of a lot of land secretly intended to sell only a part of the lot, but succeeded in making the vendee understand that he was buying the whole lot, and only a part of the lot was included in the deed of conveyance, for which the vendee paid the vendor the whole consideration intended by him to he given for the whole lot, the court decreed that the vendor execute to the vendee a conveyance for the whole.
    The wife of the vendor having united with him in the deed, but not being privy to the fraud attempted to be practiced upon the purchaser, the court refused to compel her to join in the conveyance.
    As a general rule, a grant of land bounded on tide water extends only to high-water mark,

      May 28.
    The right to erect a wharf and to receive tolls for the use thereof is a franchise, and cannot be exercised by an individual citizen, except under a grant for that purpose from the sovereign power; or by prescription, which is supposed to have been founded on a grant, hut the evidence of which has been lost by the lapse of time.
    Where the right to erect a wharf and to take tolls or wharfage is granted as appurtenant to a lot bounded upon tide waters, it seems the right of wharfage, &c. will pass under the term appurtenances, in a subsequent conveyance of the lot
    The bill in this cause was filed for the purpose of settling the right of the complainant to a wharf, and to wharfage and dockage at the same; which wharf was erected on or adjacent to lot No. 22, south of and adjoining Lyditis street, in the city of Albany. The complainant claimed the wharf and the right to wharfage, &c. under a contract of purchase from the defendants ; and under a conveyance from them, by which they conveyed to him the lot, with the privileges and appurtenances thereunto belonging or appertaining.
    The defendants insisted that they only intended to sell to the complainant lot No. 22 as it originally existed, and bounded on the east by the waters of the Hudson at high-water mark. It appeared by the documentary evidence in the. case that the lot, at the east end of which the wharf in question was erected, was held under a conveyance executed by the corporation of Albany to the Rev. G. Dallius, in 1687, for a tract of land called the Great Pasture, and which subsequently belonged to the corporation of the. Dutch Church. In 1791, the church conveyed lot No. 22 to 8. "Van Rensselaer, in fee, reserving a small annual rent; and he conveyed the same to J. 8. Van Rensselaer.. In August,-1797, the latter leased the lot, to F. McCavtan, in fee, at the annual rent of $125, and subject to the rents, conditions and covenants reserved and contained in the conveyance to S. Van Rensselaer. The lease was duly -assigned to the defendant, T. Hall, in 1799, who subsequently constructed the wharf or dock in controversy. In September, 1803, the corporation of the city of Albany, by a grant or conveyance, reciting the several deeds or mesne conveyances by which Hall derived bis title-to lot No. 22 from the corporation, in consideration of the sum of $62, granted, to him and to his heirs and assigns, “ the right, privileges and franehises of dockage and wharfage in the port and harbor of the ■city, opposite to and adjoining the aforesaid lot of ground, and thirty feet, being the south half of Lydius street, with the profits, benefits and advantages thereof, reserving to the corporation the right of regulating the use of the docks and wharves, and the amount of wharfage. This conveyance also contained a covenant on the part of the grantee, his heirs and assigns, to leave a street or public highway forty feet in breadth from the eastern extremity of the dock erected or to be erected on the said lot,” and to keep the street and dock in good repair. In the summer of 1817, the complainant con- . tracted with Hall to purchase the lot for the sum of $6000. And on the 35th of July, in the same year, Hall and wife executed a conveyance therefor to Mm, in which the premises are described as lot No. 32, bounded south by lot No. 21, west by South Market street, north by Lydius street, and east by the Hudson river, as the same is described in, and has been occupied and held under a certain deed of indenture, made the 25th day of August, 1797, between P. S. Van Rensselaer and Thomas McCartan, which deed of indenture was assigned by said McCartan to Hall, the 13th of July, 1799, together with all and singular the tenements, hereditaments and appurtenances thereunto belonging, or in any wise appertaining subject to certain mortgages and judgments against Hall, which were liens upon the property. Under the conveyance, from Hall and wife, the complainant entered into possession of the lot, including the wharf. And continued in the undisturbed enjoyment thereof, receiving dockage and wharfage for the whole front of the lot, including the south half of Lydius street, until the summer of 1828, when the present controversy arose, in consequence of a claim made by the defendant Hall to the wharf and wharfage. The bill alleged that the complainant intended to contract for the whole lot as owned and occupied by Hall and his tenants, including the right to the wharf and wharfage; that he was ignorant of HalPs having or pretending to have any title to any part thereof, other than by or under the lease of Van Rensselaer to McCartan ; and that Hall knew the complainant supposed he was buying the whole property, including the wharf, &c.

      The defendants by their answer insisted that they never intended to sell any thing more than the lot as it originally was, extending to the west shore of the river at high-water mark, excluding the wharf and the privilege of wharfage, and about 100 feet of the easternmost part of the premises as now filled in. And they stated certain reasons for supposing that the complainant so understood the bargain. The cause was heard upon pleadings and proofs.

      Jl. Van Vechten, for the complainant.

      J. V. JV*. Fates, for the defendants.
   The Chancellor.

The objection of the defendants, that the complainant has a full and adequate remedy at law if the wharf and wharfage, &c. are actually conveyed by the deed, probably comes too late. Objections to the jurisdiction of the court should be made by plea or demurrer, or should be specifically stated in the answer. But the nature of this property, and the necessity of removing the cloud upon the title, so as to enable the complainant to obtain his share of dockage, &c. from the dockmaster, would perhaps have been sufficient grounds for sustaining this bill to settle the rights of the par-, ties, even if the objection had been made in season. I shall therefore proceed to dispose of the cause upon its merits.

From the testimony in the case, in connection with the answer of the defendants, I am satisfied that the allegation in the answer, that they did not intend to sell the wharf and the privilege of receiving wharfage, is literally true. I think it also probable that the wife executed the conveyance in good faith, supposing it did not, and also believing that Wiswall knew it did not, cover these privileges and franchises. I cannot however, bring myself to believe that Hall supposed Wis-wall so understood the bargain. In the first place, it is incredible that a man of any kind of prudence or discretion would contract for an undefined fraction of a water lot, situated as this was, and with reference to what might have been the fine or high-water mark twenty years before. The particularity with which Hall states the terms of his paroi offers to Wiswall, and the language he used in his instructions to Mr. Hawley when the latter was about to prepare the conveyance, are of themselves evidence that he intended to have Wiswall understand he was buying the whole premises, while Hall was himself endeavoring to have a deed prepared which would in fact only transfer his title to a moiety, in value, of the property. These studied phrases would not have been necessary, neither would they have been used, in a fair and honest bargain for a part of the premises merely. The vendor would have said to Mr. Hawley, in direct terms, “ The lot I am about to sell is the land as originally conveyed by the Van Rensselaer lease, and only extends eastward as far as the shore of the river, as it then was; the wharf which is built into the tide waters, and the right of wharfage, I hold under a different title from the corporation of Albany; that is not intended to be included in the sale, and the conveyance must be drawn accordingly.” Taking all the circumstances of the case into consideration, I cannot resist the conclusion that here was a palpable fraud attempted to be practiced upon the complainant. And as the vendor has received the full consideration which the vendee agreed to give for the whole property, the complainant is entitled to a conveyance from Hall for the whole, if the legal title to the same is not in fact conveyed by the deed of 1817. As there is no evidence that the wife was a party to the intended fraud, I cannot compel her to join in the conveyance, so as to bar her contingent right of dower. I am inclined to think, however, that the legal title to the whole of the defendants’ interest in the wharf and the right of wharf-age did in reality pass to the complainant by the deed of July, 1817. By referring to the deed from the corporation to Hall, it will be seen it does not profess to convey to him the lands under the water below high-water mark; but merely the right or franchise of receiving wharfage and dockage in the port and harbor opposite his lot.

The charter of the city bounded the corporation by the Hudson river at low-water mark; and they were expressly authorized to erect wharves, and to fill in the river to that extent. The corporation also had an express grant of the profits arising from anchorage and wharfage, at the wharf or in the port. If a wharf had actually been erected at this place, as it now is, at the time of the conveyance to Dallius, the right of wharfage, unless expressly reserved," would probably have passed by that conveyance. But, as a general rule, a grant of lands bounded on tide waters extends only to ordinary high-water mark. And Gen. Hamilton’s opinion was therefore correct, that the conveyance to Dallius gave no authority to erect a wharf to the eastward of that limit; and of course the grantee could not acquire a right to wharfage under that deed.

The right to erect a wharf and to receive tolls for the use of the same is a franchise, and cannot be exercised by an individual, except by a grant for that purpose from the sovereign power, or by prescription, which is supposed to have been founded on a grant the evidence of which has been lost by the lapse of time. (See Chitty on Prer. 174.) The right to take wharf-age or tolls being a charge upon the public and against common right, could not be granted, even by the crown, except upon some consideration of benefit to the public—as the erection of a wharf, the keeping of it in repair," and the like ; or in consideration of a right of way given to the public over the property of the individual to whom the toll was granted. (Sir F. Moor's R. 474. 1 Term R. 660.) The corporation, therefore, having the right under their charter to erect wharves and to take tolls for the use of the same, may grant such right to the owner of a water lot, bounded on the river, as an appurtenance to his lot. In Colton v. Smith, (Cowp. Rep. 47,) a prescriptive right to the franchise of taking tolls or wharfage as appurtenant to a manor was sustained. Here it is evident that the grant of the corporation to Hall, his heirs and assigns, of the right of wharfage, &c. opposite to lot No. 22, and the south half of Lydius street, was made to him as the owner of that lot and as appurtenant thereto. The power to erect a wharf is not expressly granted, but probably it is implied. If the wharf and the right of wharfage were held by Hall as appurtenant to lot No. 22, the right to both passed to the complainant, under the term appurtenances, in the deed of 1817. The reference in that deed to the lot No. 22, “ as the same is described and has been occupied and held” under the deed of August, 1797, had a very appropriate and important meaning, without rendering it necessary to imply that by the use of these terms the parties intended to exclude the wharf and right of wharfage. By referring to the last mentioned deed, it will be seen that lot No. 22, as conveyed to McCartan, and as both parties intended it should "be conveyed to Wiswall, was not the whole lot as originally laid out; but one foot in breadth was taken off the south side thereof. It was the lot thus diminished, or lot No. 22, as the same was described in that deed, and as it had thus been held and occupied under the same, which was the subject of the purchase by Wiswall. And without this restriction, the covenants of warranty on the part of Hall would probably have covered this foot of land which had been excepted from the deed of 1797, or the whole of lot No. 22, as originally laid out.

To put the question as to the right of the complainant to the wharf and wharfage at rest, and to remove the cloud the defendant Hall has thrown upon the title, there must be a decree'maldng the injunction heretofore issued perpetual against Hall, and against all persons claiming under him; but without prejudice to the right of the wife, if she should survive her husband, to proceed either at law or in equity for any relief to which she may suppose herself entitled. The defendant T. Hall must also execute to the complainant a release or conveyance, sufficient in law to transfer the legal title, which may be still vested in him, if any such there be; the conveyance to be approved of by a master. And he must also pay to the complainant his costs of this suit to be taxed.


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    Clarkson and others vs. De Peyster & Beekman.
    May 28.
    A creditor, by decree in chancery, upon the return of his execution unsatisfied, is entitled to the same relief against the equitable interests and property of his debtor, as a creditor by a judgment at law.
    To obtain an equitable lien upon property not subject to a levy and sale under an execution, the creditor must have exhausted his remedy under his judgment or decree by the return of an execution unsatisfied.
    But to obtain relief against an incumbrance upon the real estate of the debt- or, improperly or fraudulently created, it is not necessary for the judgment creditor to sue out an execution previous to filing his bill.
    If one creditor by judgment, and another by a decree, have acquired liens upon the property of their debtor, which entitle them to similar relief against an act of the defendant which is a common injury to both and prevents them from enforcing their liens, they may join in a bill to obtain such relief.
    This cause came before the court upon the demurrer of the defendant De Peyster to the complainants’ bill. In January, .1828, a decree was obtained in this court, in favor of the present complainants and D. F. Clarkson, against De Peyster, for about $11,000, besides costs. This decree was afterwards affirmed oh appeal; and the costs in the original suit and in the court for the correction of errors were taxed at about $1300. In July, 1828, D. F. Clarkson and J. C. Clarkson assigned their interest in the decree to the complainant M. Clarkson, who was entitled to the residue of the money decreed in right of his wife. The complainant J. C. Clarkson, afterwards recovered a judgment in the supreme court against De Peyster, which was docketed in September, 1828. Upon this judgment an execution issued against the property of the latter, which was returned unsatisfied. The amount of the decree, exclusive of the costs, was compromised between the parties; but the costs remaining unpaid, an execution against the property of De Peyster was issued out of this court, in February, 1829, and delivered to the sheriff of New-York, which execution still remained in the hands of the sheriff unsatisfied. The bill set forth these facts, and also alleged that De Peyster, after the decree of this court, made two affidavits, stating that he was solvent and would be able to pay whatever might finally be adjudged against him in that suit. It also stated that he had real estate in the city of.New-York, upon which he gave a mortgage to the defendant Beekman, for $20,000, a few days before the entering of the decree. The bill further charged that there was nothing due to Beekman at the time of the execution of the mortgage, and that no money was advanced thereon by him ; that the mortgage was merely colorable, and was made for the purpose of creating an apparent lien on the real estate of the mortgagor beyond the value of such estate, with a view to deter the creditors of De Peyster from enforcing a remedy against the same by execution. The bill prayed for an answer as to these several matters; that De Peyster might make a full discovery as to the situation of his property; that the debts due to the complainants respectively might be paid out of such property; and for general relief.

      G. Sullivan A. G. Rogers, for the complainants.
    S'. A. Talcott, for the defendant De Peyster.
   The Chancellor.

The principal ground of demurrer stated by the"defendant, is, that the complainants’ bill is multifarious in joining a claim due to J. C. Clarkson on his judgment, with the claim of the other complainants, M. Clarkson and wife, for the costs due them on the decree. I think the •defendant’s counsel is under a misapprehension in supposing there is no part of the relief, sought by this bill, in which all the complainants have a common interest. So far as the bill seeks relief against the property and choses in action or equitable interests of the defendant De Peyster, which are beyond the reach of execution at law, the creditors under the decree of this court have no common interest with J. C. Clarkson; inasmuch as their execution has not been returned unsatisfied. I have no doubt, however, that a creditor, by a decree in chancery, upon the return of his execution unsatisfied, is entitled to the same relief, against the equitable rights and property of his debtor, as a creditor by a judgment at law. Even if the revised statutes were to be considered as having introduced a new remedy in this respect, this court, upon the equity of the statute, and by analogy, would extend the remedy to a debt liquidated by a decree; and would place it upon the footing of, equality with a judgment. The equity of M. Clarkson and wife in this case, however, does not depend upon that principle ; and they probably have no claim to relief in this suit as against property of De Peyster -which is not a proper subject of levy and sale on an execution. To obtain an equitable lien upon that species of property, the plaintiff or complainant in the former suit at law, or in this court, must have exhausted his remedy in that suit or proceeding, by a return of his execution against the property of the defendant unsatisfied.

The principal object of the bill in this case, however, appears to be to clear the real estate of De Peyster from the $20,000 mortgage to Beekman, which is alleged to be merely colorable and to have been given without consideration. Although there is no specific prayer to that effect, yet if the case made by the bill entitles the complainants to such relief, it may be granted under the general prayer for further or other relief. For the purpose of obtaining such relief, it was not necessary for the judgment creditor even to sue out an execution. But he might have filed his bill in respect to his lien, and to clear the real estate from an incumbrance improperly or fraudulently interposed, at any time after the docketing of his judgment. (1 Atkins. on Conv. 518. 1 Paiges Rep. 305. 4 John. Ch. Rep. 677.) The other complainants, who claim under the decree of this court, have also proceeded far enough, upon their decree for the costs, to obtain a lien on the real estate ; and of course to entitle them to come here to clear the real estate of that mortgage. By the common law, an execution did not issue out of the court of chancery against the property of the defendant. A decree was therefore not binding upon real estate of the defendant, except such real estate as was the subject of litigation in the suit, or was directly affected by the decree. But the statute of this state, (1 R. L. of 1813, p. 487,) which authorized the issuing of an execution against the lands and goods of a defendant in chancery, gave a lien upon the property, except as against bona fide purchasers without notice, from the time of the issuing the execution, the same as upon an execution against the goods of a defendant at common law. The lien upon the land, as the defendants in this case, under the chancery execution, upon the facts stated in the bill attached at the time of the delivery of the execution to the sheriE The complainants therefore have a common right to ask the aid of this court to remove the mortgage from the estate of De Peyster, wliich deters purchasers from bidding upon the property, and thus prevents the complainants from enforcing their respective liens. In the case of Brinckerhoof v. Brown, (6 John. Ch. Rep. 139,) this court decided that diEerent creditors having a common, although not a joint interest, might unite in a bill for such a purpose. One of the complainants whose execution has been actually returned unsatisfied, may be entitled to still further relief against one of the defendants. But that forms no objection to a joinder of all these complainants for the purpose of obtaining the relief to which they are all entitled, as against both defendants ; and is not a sufficient ground of demurrer to the whole bill. If one creditor, by a decree, and another by a judgment, have acquired liens which entitle them to similar relief against an act of the defendant, which is a common injury to both, I see no greater objection to their joining in ohe suit, than if both creditors had acquired similar rights under judgments of the same or diEerent courts of law.

The demurrer must be overruled, with costs; and the defendant is to have forty days to put in his answer.