source: Caselaw Access Project

author: The Chancellor.

license: Public Domain

text:
    Bogardus & Clark vs. Clark and others.
    The sentence of a surrogate, or of a higher court, having power to review his decision, in relation to the competency of a testator to make a will of personal property, is not conclusive upon the parties to that litigation, in a subsequent suit as to the validity of a devise of real estate contained in the same will.
    The sentence of a surrogate, or of the chancellor upon an appeal from such sentence, as to the validity of a will of personal estate, is binding and conclusive in all courts and places, until reversed by a higher tribunal.
    Such sentence is in the nature of a proceeding in rem, to which any person having an interest in the subject of litigation may make himself a party; and who will therefore be bound by the sentence or decree, although he is not in fact a party to the suit.
    This was an appeal from a decretal order of the vice chancellor of the first circuit. The bill was filed for a partition of the real estate of which John Fisher died seised, one half of which the complainant, R. Bogardus, claimed, as trustee of his co-complainant, Maria Clark, who was one of the heirs at law of Fisher. And the defendants, Diana Sawyer, formerly the wife of Fisher, and Lemuel Sawyer, her present husband, were made parties to the suit, on the ground that she was entitled to dower in the real estate of which partition was sought. For the purpose of barring the claim of Mrs. Sawyer as a devisee under the will of Fisher, her former husband, the complainants alleged in their bill, that after the decease of Fisher, a paper writing, purporting to be his last will and testament, was, by an order of the surrogate of the county of Kings, admitted to probate, and that on an appeal to the chancellor from that order, it was adjudged and decreed by the court of chancery that the said paper writing was not the last will and testament of Fisher, and was not made and published in due form of law; that at the time of executing the same, he was not of sound mind and memory, and was under restraint; and that the order of the surrogate be reversed; which order and decree of the chancellor was still in full force. The defendants, Sawyer and wife, in their answer, admitted the decree of the chancellor, on an appeal from the decision of the surrogate, as stated in the bill; but they insisted that it was not binding upon them any further than as it concerned the personal estate of the decedent. And they set up a claim to the whole real estate, in behalf of Mrs. Sawyer, as the devisee of Fisher. They alleged and insisted that at the time of making the will, the devisor was of sound and disposing mind and memory, and was not under any restraint, and that he executed the same in due form of law to pass real estate. They also alleged, that subsequent to the death of Fisher, and during the pendency of the appeal from the order of the surrogate, Maria Clarke and the other heir at law of Fisher, together with their husbands, filed a bill in this court against Mrs. Sawyer as executrix and devisee under the will, and against Willoughby, the executor, and other persons claiming under the will, to set aside the same ; to which bill Mrs. Sawyer put in her answer, insisting upon the validity of the will; which suit was still pending and undetermined. The complainants, without filing any replication to the answer in the present suit, brought the same to hearing on bill and answer; relying upon the decision of the chancellor on the appeal from the surrogate, as conclusive of the rights of the parties in this suit, relative to the validity of the will as a devise of real estate. The vice chancellor decided that the decree of this court, upon the appeal, was only binding upon the parties in respect to the personal property, and not so as to the real estate. But he allowed the bill to be retained, upon payment of the costs of the hearing, until the decision of this court upon the validity of the will in the suit commenced by the heirs at law, to set it aside. (See Bogardus and others v. Clark and others, 1 Edward's Ch. Rep. 266, S'. C.) From this decision the complainants appealed to the chancellor.

      October 21.

      8. Sherwood, for the complainants.
    The decree of the chancellor, made upon the' appeal from the decision of the surrogate of the county of Kings, admitting to probate the will of John Fisher, is conclusive upon the parties to this suit as to the validity of the devise of the real estate contained in the will. A person is in all cases concluded by a decision in a suit to which he is a party, whenever the same question arises in another suit, whether it arises directly or collaterally. ( Croudson v. Leonard, 4 Cranch, 436. Bull. N. P. 260. Baxter v. N. E. Ins. Co., 6 Mass. R. 277. Outram v. Morewood, 3 East, 346. Baring v. Fanning, 1 Paine, 549. 3 Wheaton, 234. Meadows v. Dutchess of Kingston, 1 Ambl. 763. 1 Salk. 290. Boyle v. Boyle, 3 Modern Rep. 164. 1 Ld. Raym. 262. King v. Vincent, 12 Mod. R. 136. 1 Strange, 481, 703. 1 Atkyns, 516. 1 Peere Wms. 388. 3 Cowen, 120. 5 Id. 650. Gage v. Bulkeley, 1 Russ. Rep. 103.)

      D. S. Jones, for the défendant.
    The opinion of the vice chancellor refers to the leading cases on the questions now in controversy. The decision of the surrogate and the decree of the chancellor are not binding as to the devise of the real estate. They may be conclusive upon the parties as to the personal estate, but have no binding force as to the real. The ■cases cited by the complainants have no application to this case.
   The Chancellor.

So far as the personal estate of the decedent was concerned, the surrogate had exclusive original jurisdiction to try and determine the validity of the will; and the decision of this court, upon the appeal fr om his decision, is binding and conclusive in all courts and places, until it shall be reversed, upon an appeal to a higher tribunal. It is in the nature of a proceeding in rem, to which any person having an interest may make himself a party by applying to the proper tribunal before which such proceeding is had; and who will therefore be bound by the sentence or decree of such tribunal, although he is not in fact a party. (Scott v. Sherman, 2 Wm. Black. Rep. 977. Hart v. M'Namara, 4 Price’s Rep. 154, n.) But, in the present case, there is nothing in the bill or answer to show that the heirs at law of Fisher were parties to the proceedings before the surrogate, or in the appeal to the chancellor. And the vice chancellor had no right to look beyond the bill and answer, for the purpose of ascertaining whether the complainants, or Mrs. Sawyer, were parties to that proceeding, so as to make the decision of a particular fact, litigated on the appeal, personally binding upon them in a subsequent litigation as to the real estate of the decedent. If the heirs at law of Fisher were not in fact parties to the proceedings before the surrogate, and on the appeal to the chancellor, so as to have made the decision in that case conclusive against them, as to the capacity of the decedent to make a will, in a subsequent litigation in respect to the real estate, if the decision of the chancellor had been the other way, they certainly cannot now avail themselves of that decision as binding upon Mrs. Sawyer. (See Case v. Reeve, 14 John. Rep. 83; Burgess v. Lane, 3 Greenl. Rep. 165.)

In. this case, however, even if it had appeared from the bill and answer that the parties to the present controversy were all actual parties to the litigation before the surrogate, and upon the appeal, the decision of the chancellor, acting as an appellate court of probate, against the competency of the decedent to make a valid will of personal estate, would not have been conclusive evidence, in this suit, of the invalidity of the devise of the real estate to Mrs. Sawyer ; although such devise was contained in the same will which was then in controversy as a will of personal property. The general rule is admitted, that the judgment of a court of competent jurisdiction, directly upon the point, is, as a plea in bar, or as evidence where it cannot be pleaded as an estoppel, conclusive, as between the same parties, upon the same matter directly in question, in the same or another court. But the case of Montgomery v. Clark, before Lord Hardwicke, (2 Atk. Rep. 378,), and the more recent case of Clark v. Dew, before Lord Lyndhurst, (1 Russ, & Myln. Rep. 109,) both of which are referred to in the opinion of the vice chancellor, show that the principle is not applicable to the case now under consideration. And in Baker v. Hart, (3 Atk. Rep. 546,) Lord Hardwicke refers to the case of Maxwell v. Lord Mountague, where the testator was determined to be compos mentis, upon a suit in the ecclesiastical court as to the validity of his will, which determination was affirmed upon an appeal to the court of delegates; but after-wards, upon a trial at law relative to the real estate devised by the same will, he was found to be incompetent. And, although his lordship laments that there should be such different determinations in concurrent jurisdictions,”he says there is no way to make them uniform. I apprehend, however, it was a mistake to call them concurrent jurisdictions; and that this seeming anomaly arises from the fact, that each court has a jurisdiction which is entirely exclusive of the other, in reference to the different interests claimed under the same will: The probate courts having the exclusive jurisdiction and right to decide as to the validity of a will of personal estate; but having no power or authority whatever to determine the right as to the real estate claimed under the will, or to decide any question which can have the effect to deprive the heir at law, or the devisee, of his common law right of trial by jury, so far as concerns the devise of real estate. Without taking up time to inquire more particularly into the reasons for this seeming exception to a general rule, it is sufficient to say that the law appears to be well settled, that the sentence of a surrogate, or of a higher court having power to review his decision, in relation to the competency of the testator to make a will of personal property, is not conclusive, upon the parties to that litigation, in a subsequent suit as to the validity of a devise of real estate contained in the same will. The complainants, therefore, instead of bringing this cause to a hearing, upon the answer of the defendants, Sawyer and wife, which answer insisted upon the competency of the testator and upon the validity of the devise of the real estate, should have filed a replication to such answer, so as to give the defendants an opportunity to prove the will in the usual mode. The decree appealed from is affirmed, with costs. But without prejudice to the right of the appellant to apply to the vice chancellor to open the decretal order, and to file a replication, and to take proofs in the cause in reference to the validity of the will set up by the defendants in their answer. And the proceedings are to be remitted to the vice chancellor.


text:
    Everson vs. Kirtland.
    A covenant, to cause land to be conveyed by a good and sufficient warrantee deed, is not complied with by the mere giving of a deed, with warranty, where the grantor has no title to the land, or where his title is imperfect.
    To constitute a good and sufficient deed of land, within the meaning of such a covenant, the conveyance must be good and sufficient to convey a valid title to the premises described in the covenant.
    October 21.
    This was an appeal from a decree of the vice chancellor of the fifth circuit. In January, 1829, the complainant sold to the defendant, C. Kirtland, a farm in the county of Oneida, and was to receive in part payment therefor, three lots of land, in the state of Ohio, described in the contract as “ lots 37 in the second quarter, and 33 and 34 in'the third quarter, of the sixth township, in the second range, of the tract appropriated for satisfying warrants for military services, as granted by tile president of the United States on the first of June, 1825; the said lots each containing 100 acres.” Which lands the defendant covenanted to cause to be conveyed, to the complainant, by a good and sufficient warrantee deed, in fee simple, free and clear of all encumbrances; the deed to be executed by Martin Kirtland, the father of the defendant. In February, 1829, the complainant received a deed, from Martin Kirtland and wife, which he then supposed to be a compliance with the contract. But upon going to Ohio to take possession of the lands, he found them in possession of others claiming title thereto, and ascertained that Kirtland never had any right or interest therein. He thereupon wrote to the defendant, informing him that his father had no title, and requested payment for the Ohio lands, at the rate of $2,50 per acre; the price at which they had been estimated upon the sale of the farm in Oneida county. The defendant admitted that his father had no title to the lands described in the agreement, and the deed. But he insisted that there had been a mistake; and that the lands which he had intended to give in payment for the farm were in the 5th, instead of the 6th township. And he thereupon procured a deed to be executed, by Martin Kirtland and wife, purporting to convey to the complainant lots No. 37 in the 2d quarter and No. 33 and 34 in the 3d quarter of the 5th township in the 2d range, instead of the same numbers in the 6th township; which deed the complainant refused to receive as a compliance with the defendant’s agreement. This deed contained a recital, that the lands belonged to Ira B. Kirtland at the time of his death, by virtue of a conveyance from Martin Kirtland, and the other heirs of Martin Kirtland formerly of Saybrook, deceased ; that Ira B. died in 1828, without issue, leaving Martin Kirtland, the grantor, his heir at law; and that the widow of Ira B. had released her right of dower. The complainant filed his bill, for the purpose of rescinding the agreement to receive the Ohio lands in part payment for the farm which had been sold and conveyed to the defendant, and to obtain other compensation therefor. The defendant, by his answer, insisted that there was a mistake ; that the lands mentioned and described in the last deed from Martin Kirtland and wife were the lands intended to be given in payment for the farm; and that the complainant ought to be compelled to accept that deed as a fulfilment of the agreement. From the testimony, it appeared that in 1825 a patent was issued for the lots described in the last deed, in conformity with the general practice of the land office, to Martin Kirtland, the son, and the other heirs of Martin Kirtland, who was the soldier entitled to the land for his military services, the grand-father of the defendant. It also appeared, to the satisfaction of the vice chancellor, that the defendant sold the lands as lying in the sixth township, by mistake, but that the complainant contracted for them as being in that township. And as neither the defendant nor his father could give a good title to the lands in township No. 5, the vice chancellor decreed payment of the amount for which the lands were to have been taken in payment towards the farm, with interest and costs. From this decree the defendant appealed to the chancellor.

      E. Allen, for the complainant.
    The covenant in the agreement to cause the lots to be conveyed by a good and sufficient warrantee deed, in fee simple, free and clear of all encumbrances, is a warranty of title, which was not satisfied by the conveyance of Martin Kirtland. And the complainant not deriving any title under that conveyance, the defendant is liable on the covenant; and the failure of title being admitted in the answer, there was no necessity of a trial at law before the bill filed. The expression, “ good and sufficient warrantee deed, in fee simple, free and clear of all encumbrances,” refers Jto the title which the deed shall convey, and not merely to the covenants which the deed shall contain. The acceptance of the deed, with a covenant for quiet enjoyment only, shows that the complainant intended to rely on the covenant contained in the contract, to guard against a defect of title. A covenant to execute a good and sufficient deed of a piece of land, does not mean merely a conveyance good in point of form—that would be a covenant without substance ; but it means an operative conveyance, one that carries with it a good and sufficient title to the lands conveyed. (2 John. R. 595. 10 Id. 266.)
    In 11 John. R. 525, the covenant was to execute a deed with a warranty of the title, except as to quit rents; and the court held that the agreement meant, not merely that the party should execute a deed containing covenants of warranty, but that he had the power to execute a deed which would carry with it an indefeasible title, subject to no other encumbrance or charge, except the quit rents, and that a tender of a deed, good in form, was not enough if the premises were encumbered otherwise. This case is not like those cases in which a person covenants simply to give a conveyance or deed, not saying with warranty, and receives the consideration, using no language implying an intent to warrant the title. In those cases, it has been held that the tender of a deed executed in due form is a compliance with the agreement, however defective the grantor’s title may be.
    Nor was the acceptance of Martin Kirtland’s deed a discharge of the contract. There are cases where the acceptance of a deed is deemed a discharge of a covenant to convey. Such are those in 2 John. Rep. 506, and 10 Id. 297.
    In 10 John. Rep. 297, the court say that parties may enter into covenants collateral to the deed; or cases may be supposed where the deed would be deemed only a part execution of the contract, if the provisions of the contract clearly manifest such to have been the intention of the parties. So we say in this case. The delivery of Martin ICirtland’s deed was only part performance of the agreement, and not accepted as a satisfaction, unless it conveyed a good title. If the acceptance of the deed could, under any circumstances, be considered a satisfaction of the contract, it clearly cannot be in equity, since it was accepted under the .mistaken supposition that it conveyed the title, and the mistake having been caused by the defendant. If we had brought an action at law on the covenant in the deed, perhaps this objection would not have been well made; for although it is the settled rule at law that an action will not lie on a covenant for quiet enjoyment until after an eviction or an action brought to obtain possession, (see 3 John. Rep. 471, 15 Id. 483, 5 Id. 150, 1 John. Ch. Rep. 213,) such is not the rule in equity where the vendor has not had possession, and admits he had no title.
    In Abbott v. Allen, (2 John. Ch. Rep. 519,) the chancellor decided that a purchaser in possession could not have relief until after eviction ; and the principal reason is, that a court of chancery will not try the validity of the outstanding claim. But he inclined to the opinion, that an outstanding encumbrance, admitted by the party, might form an exception where there was a covenant against encumbrances. He says, that a previous eviction or trial at law is in general indispensable, and that all the cases in equityrare grounded on a failure of title duly ascertained. From which, I understand, that if the failure of title is duly ascertained, a court of chancery will give relief. In 21 Viner, 504, pl. 1, a bill to have purchase money refunded was sustained, because the defect of title was admitted in the answer. In Johnson v. Gere, (2 John. Ch. Rep. 546,) the vendee being in possession, an action of ejectment was brought by an outstanding claimant, and the vendor was proceeding to foreclose a mortgage given for the purchase money, and the chancellor granted an injunction against the' foreclosure until the title should be settled in the action of ejectment.
    The defendant is liable, because he sold the Ohio lots to the complainant and received the consideration. He was the person with whom the complainant dealt, and the only person beneficially interested in the contract. He procured Martin Kirtland’s deed to be drawn, executed and delivered; and if there was any mistake in the deed, as the defendant pretends it was his mistake, it is right that having received the consideration he should be called on to refund it. The defendant is liable on the ground of mistake or fraud, in misrepresenting or concealing the state of the title. The rule is settled, that mistake is a good ground for relief in equity, ■whether it is set up as a defence to a specific performance of a contract, or the injured party comes as complainant for redress.
    In Roosevelt v. Dale, (5 John. Ch. Rep. 174, 2 Cowen, 129, S. C., 2 John. Ch. R. 596, 4 John. R. 12,) the evidence of the witnesses showed clearly that the complainant relied wholly on the representation of the defendant. The remarks of Judge Spencer in Pitcher v. Livingston, (4 John. R. 14,) are fully applicable, namely, that it was a rare thing for a purchaser to investigate the seller’s title ; and that in most cases it was impossible; that he generally relied on the allegations of the vendor, and on his covenants. The defendant says the contract should be corrected so as to be for lots in No. 5. Suppose it had been so originally, the complainant would not have been bound to receive the deed, but might have called for a repayment of his money, unless the defendant .could give a good title. This is the language of all the cases. (2 John. Rep. 595. 10 Id. 266. 6 John. Ch. Rep. 222. 3 Cowen, 445, 14 John. Rep. 363. 11 Id. 525.)

      In Seymour v. DeLancey, (6 John. Ch. Rep. 222, 3 Cowen, 445, S. C.,) it is distinctly laid down that a specific performance will not be decreed, unless the party can give a good title. To amend an instrument on the ground of mistake, the court will require the strictest proof of the agreement. (17 John. R, 373. 2 John. Ch. R. 214. Idem, 630.) Another part of the defendant’s misrepresentation was, that he sold the whole interest in the lots, and represented Martin Kirtland’s title to be a perfect title; whereas, he had title to only one undivded sixth part, so that the consideration has wholly failed. The defendant was also guilty of fraud. If he knew that Martin Kirtland had but an undivided interest in the Ohio lots, then he was of course guilty of fraud, in saying that his title was perfect; for the representation must be considered as co-extensive with the title which was sold, viz. the whole title. If the defendant did not misrepresent, yet he fraudulently concealed the state of the title; and a fraudulent concealment is equivalent to a false representation. (See 4 John. R. 1, 13, per Van Ness, justice. 3 John. Ch. R. 375. 13 John. R. 325.)
    The defence wholly fails : 1. Because there was no clerical mistake; 2. Because the mistake as proved was not material, and was the mistake of the defendant only; 3. Because the defendant cannot give title to any lands, and can give only a pecuniary satisfaction by re-payment of the purchase money; and 4. Because he was guilty of fraud. The defendant cannot object that our remedy is at law: 1. Because he should have demurred, or raised the objection by his answer; (2 John. Ch. Rep. 339, 369; 4 Id. 287; 5 Id. 193;) 2. Because the matter is complicated ; and 3. Because we could not sue at law until the question of title was first settled by ejectment. In 3 Caines, 111, the rule of damages in cases of tins kind was very fully considered and settled, to wit: the consideration expressed in the deed, with interest. (4 John. Rep. 1. 9 Id. 324. 13 Id. 50. 2 Wendell, 399.) The defendant ought to pay the expenses of the journey to Ohio. He ought also to be charged with costs (Hopk. Rep. 344. 1 Paige’s Rep. 131.)

      S. Beardsley, for the defendant.
    A mistake was made in the' covenant and in the deed; .the word sixth being inserted instead of fifth. The patent was for the fifth, and not the sixth township» The defendant owned the lands in the fifth, but had none in the sixth; nor had any of the Kirtlands’ land in the sixth. The complainant intended to contract, and did in fact really contract for the land in the fifth, and not in the sixth township. The covenant of 17th January, 1829, has been fully performed by the defendant. No action at law, therefore, could have been maintained on that covenant as a subsisting contract. It is said, on behalf of the complainant, that an action at law could have been sustained on the covenant of warranty contained in the deed given in pursuance, and in performance of the covenant of the 17th of January, 1829. Although the general rule is admitted to be, that such covenant of warranty is only broken by a legal eviction, yet it is insisted that the rule is otherwise where one yields to a paramount title, or where possession of the premises cannot be obtained, in consequence of their occupation under a better title. But if this is so, yet it is clear that Martin Kirtland could have defended himself against such an action, by filing a bill to correct the mistake in the deed.
    Fraud is averred in the bill; but if an action on the ease in the nature of an action of deceit had been brought by the complainant against the defendant, he must have averred and proved, amongst other things, that the defendant represented that Martin Kirtland had good title to lands in the sixth township, when he knew he had not. 1. But no such representation as to land in the sixth township is shown. 2. The covenant could not be used to prove such representation.. 3. If it could, it might be shown that the covenant was so written by mistake. 4. Or a bill might be filed to correct the mistake, and thus get rid of the covenant, as such evidence. This is not a' bill for a specific performance of any contract. 1. Not of the real contract between the parties; that was as to land in township five. fe«ch a bill would have charged the mistake ; asked to have it corrected, and as corrected performed. 2. Not of the covenant as entered into; that has been performed. Nor is this a bill filed to correct- the mistake in the contract omd deed, which might very properly have been done. We set up and prove the mistake, and thus entitle ourselves to have the covenant and deed corrected. And when they have been corrected under and by a decree of this court, the complainant’s ground for relief is destroyed. The mistake may be set up and shown by way of defence. (2 John. Ch. Rep, 585, 596, 598. 3 Atk. 388. 2 Id. 98, 9. 6 Vesey, jun. 328. 1 Vesey & Beame, 165. 3 Stark. Ev. 1018, note 1. 3 Hen. & Munf. 144, 288.) There is perhaps no reason why the mistake should not be set up in this case by way of defence, as it might- have been, had a bill been filed for a specific performance. Such a bill would have proceeded on the ground that the real contract was for lands in the sixth ; so does this bill. The proof must be pertinent to the ground for relief, as stated by the complainant; and the relief m ust be on the ground stated and proved. (2 John. Ch. Rep. 339, 355. Id. 475, 8. 6 John. Rep. 543. 3 Wendell, 653. 1 Cowen, 734.) Authorities cannot be necessary for these principles; they will not be questioned. The inquiries must be, has the complainant stated a good ground for relief ? Has he proved the facts stated by him 1 Has he stated the real case as it existed between the parties ? ‘If not, then I apprehend the court will not look out for grounds, other than those stated, on which to predicate relief. The decree, even if it should be for the complainant, yet, should not, as is supposed, be for the $750 and interest; but for the actual damage only, which is the real value of the land.
    The decree directs payment of the $750 and interest, but does not direct the complainant to release the covenants in the deed delivered to him.
    The prayer for relief, except as to the expenses of the journey to Ohio, is not a general prayer, but is special; that is, that the $750 and interest may be decreed. It is insisted, 1. That no other relief than that prayed for can be granted; the rule being that where the prayer is special only, the party' must have that, or can have no relief. 2. That the complainant is not entitled to that relief, in any event; but if to any, it is .te a decree for the value of the Ohio lands.
   The Chancellor.

The vice chancellor has put his decision in this cause upon the ground of a mistake of both parties as to the existence of a title in Martin Kirtland, in the Ohio lands intended to be conveyed in payment for the Vernon farm. The complainant contracted for lands lying in township No. 6, although he would probably have made the bargain as readily if he had been informed that the lands he was to receive in payment lay in the other township. Upon this supposition, if the defendant or his father had really owned the lands in .township No. 5, it probably would have been doing no injustice to the complainant if -he had been compelled to take the lands described in the patent. But although, from the testimony, I have no doubt that the defendant intended to sell, and to procure a deed from his father for the lands mentioned'in the.patent, and that he really misread the description in the patent, I think there is sufficient evidence, -from the testimony of bis own witnesses and from bis exhibits, to show that he intended to impose a title.upon the complainant which he knew to be imperfect. In the first place, the person who drew the original contract between the parties, although he described the land correctly, except as to the number of the township which was undoubtedly misread, and gave the precise date of the patent, yet he appears to have stopped short in bis description in not stating to whom the patent was given. This agreement bears date on the 17th of January ; and yet exhibit B., which bears date, and is proved to have been written, about a ibrtnight before, ■ contains a false recital, which is also contained in the second deed executed by the defendant’s father, that Ira B. Kirtland was seised of the Ohio lands by virtue of a conveyance from Martin Kirtland and the other heirs at law of the-deceased soldier, and that such lands had come to Martin Kirtland by descen t from his deceased son, and by a quit claim from the widow". The defendant, therefore, when he procured that deed to be drawn,in which his own name was origin.ally inserted as the grantee from his father, must have known that the five brothers and sisters of his father were entitled to five sixths of the land under the patent, as the heirs at law of his grand-father; and this recital, which his father noyr swears was absolutely false and unfounded, must have been inserted therein for the purpose of deceiving and imposing upon the complainant, and to induce him to suppose the title was perfect. There is the more reason to suspect that such was the intention of the defendant at that time, from the fact that a similar imposition was actually attempted to be practised upon the complainant in the deed which was offered him on his return from Ohio. Even the father was imposed upon in that case; for he swears that he would not have signed that deed if he had known such false recitals were contained therein. The father probably honestly supposed, as he states, that his title was perfect under the patent, as heir to his son Ira, to whom he had promised the land before the patent was obtained. The only conclusion I can draw from these facts is, that the defendant was, from the beginning, aware that his father’s title to the Ohio lands was defective, and that five sixths of the land belonged to other persons. That he concluded in the first place to take a deed from his father, containing these false recitals, showing a title through a conveyance from all the patentees to his brother Ira, and through him to his father; and that exhibit B. was prepared accordingly. That finding a deed with warranty would be required from himself in that case, he concluded to keep back the patent, and to give an agreement for a warrantee deed from his father, concealing the fact that the patent was to the father and the rest of the heirs also. In this he probably would have succeeded, had it not been for his own mistake, in misreading the patent, by which the wrong township was inserted in the agreement and in the deed. And finding that he had made that blunder, he then attempted to do what he had contemplated doing soon after the execution of the agreement; that is, to impose upon the complainant, by a deed from Martin Kirtland directly to him, containing false recitals which apparently showed a good title in the father to the whole of the Ohio lands, under the patentees.

The covenant of the’defendant was, to cause the Ohio lands to be conveyed to the complainant by a good and sufficient warrantee deed, to be executed by Martin Kirtland and wife, free and clear of all encumbrances. And neither of the deeds, which were given or offered to the complainant, would have been a compliance with the terms or the spirit of the covenant; even if there had been no mistake in the number of the township. A covenant to cause to be conveyed by a good and sufficient warrantee deed, is not complied with by the mere giving of a warrantee deed, where the grantor has no title to the land, or where his title is imperfect. It must be a deed good and sufficient, both in form and substance, to convey a valid title to the land which the covenantor has agreed should be conveyed. But the deeds in this case were not good, either in form or substance. Conveyances for lands in the state of Ohio were originally subject to the provisions of the ordinance of congress of 1787, relative to the North Western Territory; which ordinance is still the law of that state, unless it has been changed by statute. By the former, as well as the statute law of that state, a conveyance of land, to be valid, must be executed in the presence of two witnesses. And the supreme court of the United States has decided that a deed of lands in Ohio, executed in the presence of one witness only, although duly acknowledged and recorded, is absolutely void. Neither of the deeds in the present case were executed in the presence of more than one witness; nor had the grant- or any good and available title to convey, except as to an undivided portion of the lands.

If there was no fraud in the case, perhaps the objection might have been made that the complainant had a perfect remedy at law upon his covenant. But as that objection was neither made by demurrer, or in the answer of the defendant, it is too late to make it at the hearing.

The vice chancellor certainly has been sufficiently favorable to the defendant, in only charging him for the value of the land as fixed by the parties, in their estimates, at the time of the execution of the agreement, and as specified in the deed. This was the rule adopted by the supreme court, in the case of a bona fide vendor who covenanted to convey lands to which he believed he had a valid title. And the defendant may think himself fortunate, that the court did not direct a reference to a master to ascertain the value of the lands in township No. 6, which he agreed to convey, and charge him with the full value of those lands, and the interest thereon from the time he should have conveyed them, according to the terms of the written agreement. As those lands were in the hands of actual occupants, the value thereof, with their improvements, would probably far exceed the estimated value of $2,50 per‘acre. And a party who attempts to commit a fraud, if he makes a slip, is not entitled to relief against his own mistake in favor of the party intended to be defrauded.

The appellant has no right to complain of this decree, as it is as favorable to him as the circumstances would justify. It must therefore be affirmed, with costs.


text:
    Lansing vs. Pine.
    The defendant is not bound to look beyond the copy of the bill which is served on his solicitor; and if that does not contain the requisite affidavit or verification to give the court jurisdiction of the case, he may demur to the bill on that ground.
    Where the complainant had purchased the rent and reversion of an attainted person in a lot of land, and had received rent from the tenant for more than forty years, at a particular rate, and which had been paid in a particular manner; Held, that he was not entitled to a discovery from the tenant as to the amount of rent reserved by the orignal lease, or as to the terms of payment thereof.
    The court of chancery will not aid a landlord in obtaining a discovery from his tenant, as to the existence of covenants in the lease by which the interest of the tenant in the land may have become forfeited.
    Where a lessee of land becomes a purchaser of an undivided moiety of the rent and reversion, the lease and rent is merged and extinguished as to that portion of the premises; and he is not such a tenant in common, of the rent and reversion, with the owner of the other half thereof, as to entitle the latter to a partition of the land during the continuance of the lease.
    If the owner of an undivided moiety of a lot of land is a lessee of the other half thereof, and the lease has become forfeited by the non-performance of a condition subsequent, the landlord must enter for the forfeiture, or must otherwise obtain the possession of his undivided half of the premises, before he can sustain a bill for partition.
    This case came before the court, upon a demurrer to the complainant’s bill. The bill stated a purchase by the complainant, in January, 1788, from the commissioners of forfeitures, of an undivided half of the rent and reversion of lot No. 144 in Pittstown; supposed to have been forfeited by the attainder of Robert W. Leake. That the complainant, at the time of the purchase, was informed the lot was in lease, but that never having seen the lease, he could not set forth • I°r wbat term the same was given, or what amount of rent was reserved thereon. That at the time of the purchase, or shortly thereafter, J. Pine, the ancestor of the defendant,"was in possession of the whole Jot, claiming the same under the lease, and also claiming to be the owner of the other half of the rent and reversion ; and that he represented to the complainant’s agent that the one half of the rent, to which the complainant was entitled under the purchase from the commissioners of forfeitures, was twelve and a half bushels of wheat per annum. That the complainant received that amount of rent from J. Pine, from the time of his purchase, in 1788, till 1830; since which time the rent had not been paid. That Pine claimed that the rent was payable on the premises, or in Pittstown, only; where the complainant had usually received it. That J. Pine died 3 or 4 years before the filing of the bill; and that.the defendant, his son, was in possession of the lot, claiming title thereto, by inheritance, devise or purchase, from or under him, or otherwise. The complainant further stated, in his bill, that not having seen the lease, or the counterpart thereof, he was unable to state with certainty the terms upon which it was given, the estate thereby created, the covenants or conditions therein contained, or the amount of rent reserved ; or whether the lease had expired or had become forfeited. But that he was informed and believed that the defendant had the lease, or a counterpart thereof, in his possession, and he prayed that the defendant might be compelled to produce the same. The complainant prayed for a discovery, of the contents of the lease, the term for which the same was given, the rent reserved, and the particular covenants, reservations and conditions therein contained, and the amount of rent due to him thereon; and that a partition of the premises might be made between the complainant and the defendant, and such other persons as might appear to be interested therein, or for such other relief as the complainant might be entitled to, upon the facts of the case. In the demurrer to the bill, the defendant assigned, as causes of demurrer, 1. That the complainant had not made affidavit that he had not the lease or the counterpart thereof in his custody or power. 2. That if the suggestions in the bill were true, a discovery of the contents of the lease might subject the defendant to a forfeiture of his estate; and that such forfeiture was not waived by the bill. 3. That the claim for arrears of rent was properly cognizable at law only, and not in this court. 4. That the complainant was not entitled to partition ; as it appeared by his bill that he was only entitled to his present rent, and to a reversion in the half of the premises. 5. That there was no equity in the bill entitling the complainant to any relief in this court. It was alleged, by the complainant’s counsel, that the bill on file was verified in the usual form; but there was no jurat to the copy furnished to the court, or to that which was served on the defendant’s solicitor.

      October 21.

      O. ¥. Lansing, for the complainant.

      H. P. Hunt, for the defendant.
   The Chancellor.

The defendant was not bound to look beyond the copy of the bill served on his solicitor; and if that did not contain the necessary affidavit, or verification, to give the court jurisdiction, he had a right to demur to the bill on that ground. Here the objection of the want of an affidavit is distinctly made by the demurrer. The complainant, therefore, instead of noticing the demurrer for argument, should have examined the copy of the bill served on the defendant’s solicitor, and should have made it conformable to the bill on file, if that contains the requisite verification.

Independent of this technical objection, I think there was not sufficient equity in the bill to entitle the complainant to the discovery and relief sought thereby. It appears to be a mere fishing bill, for the purpose of ascertaining whether there may not be something in the original lease which will entitle the complainant to claim other and greater rights, in relation to this lot, than those which he has been exercising for nearly half a century. Immediately after his purchase, in 1788, he commenced receiving rent from the defendant’s father, as the tenant of an undivided half of the lot, and who also claimed! an absolute interest in the other half, at the rate of 12 bushels and a half of wheal, annually, payable on the premises, or in the town of Pittstown. And after receiving such rent for 42 years, the complainant now asks, from the defendant, a discovery as to the amount of rent originally reserved in the lease ; but without venturing an allegation in'his hill that he even believes that a greater rent, than that which he has been receiving, was reserved, or stipulated to be paid. After such a lapse of time, even if it should appear that a greater rent was originally reserved, I am inclined to think the court, or a jury, would be bound to presume that the residue of such rent, beyond the twelve and a half bushels of wheat, had been released or extinguished, either by Leake before his attainder, or by the complainant subsequent to his purchase. Tiie recovery of the rent, at the rate which has been paid by the defendant’s father, certainly could not have been the inducement for filing this bill; as the bill contains no allegation that the defendant has ever declined paying such rent, in the manner in which the complainant had previously been in the habit of receiving it. Neither was the amount due, at the time of the commencement of this suit, of sufficient value to enable the complainant to recover the same in this court. And as a partition suit, the bill cannot be sustained ; as there is no such tenancy in common between the complainant and the defendant as can entitle the former to a partition, during the continuance of the lease. If, as alleged in the bill, J. Pine, the father, was in possession, as a tenant under the lease, and became the owner of the rent and reversion as to one half of the premises, the tenancy as to that half was merged in the greater estate, and the rent as to that half was extinguished.

“ For if a great and less estate,
Without one intermediate,
“ In the same, person coincide,
“ It is a kind of paricide ;
“ The great one sinks, or drowns the small,
Never again to rise at all.”

(Conv. Guide, 64. 1 Cruise's Dig. tit. Estate in Fee, § 58. Co. Litt. 54, b.) It is true, the complainant alleges in his bill that lie has never seen the lease, and that therefore he cannot state the terms thereof, or whether the estate thereby created has expired or has been forfeited. But to sustain a bill for partition, on the ground that the^complainant has become a tenant in common with the defendant, in the reversion, so as to entitle him to the immediate possession of one half of the lot, he should at least have alleged his belief that the one half of the premises had reverted to him by the termination of the estate created by the lease. And if the estate of the tenant has become forfeited, or is determined by the non-performance of a condition subsequent, the complainant must first recover the possession of his half of the premises by entry, or in an action at law, before he can sustain a bill for a partition of the lot. This court will not even aid him to obtain a discovery whether there are any covenants or conditions, contained in the lease, by which the estate of the lessee may have become forfeited.

The bill being defective both in form and substance, the demurrer is allowed ;• and the bill must be dismissed, with costs. The complainant having died since the argument, the decree must be entered nunc pro tunc.


text:
    Germond vs. Germond.
    Pending a suit commenced by the wife against her husband, for a separation on account of cruel treatment, the allowance for temporary alimony will be estimated according to the expense of board and clothing a't the place where her connexions reside, if she selects that as the place of her residence after her separation from her husband, unless the expense of living there is disproportioned to the property of her husband.
    The allowance for temporary alimony, pending the suit of the wife for a separation, will he limited to the actual wants of the wife, until the result of the suit in her favor establishes her right to a more liberal allowance.
    This case came before the court upon exceptions to the report of a master, to whom it was referred to inquire and report what sum would be just and proper for the defendant to pay for the support and maintenance of the complainant, as temporary alimony pending this suit, instituted by her to obtain a separation on account of cruel treatment. The master reported $25 per month, to commence from the time of making the order of reference, as a just and proper allowance ; and that it should be paid monthly. He also, in pursuance of the directions contained in the order of reference, reported a suitable allowance to be paid to her for the necessary law expenses in this suit. The defendant excepted to so much of the report as related to alimony : first, that the amount allowed was excessive; and secondly, that the master erred in requiring the payments to be made monthly. From the testimony before the master, it appeared that the defendant was a farmer, worth between four and five thousand dollars, residing in the county of Rensselaer; that he married the complainant in the city of New-York, where her father resided at the time of the marriage ; that the complainant, upon her separation from her husband, returned to her father’s, in New-York; that her father afterwards died, and that she has since continued to reside in the city of New-York, boarding with a relative. From the testimony, it also appeared that the expense of the board, clothing, &c. of the conplainant, in the city of New-York, according to her situation in life, would be from two hundred and fifty to three hundred dollars; and that from the state of her health, she was unable to support herself by sewing or other labor; and that the expense,' of her board and clothing in the country, in the neighborhood of the defendant’s residence, would have been from one hundred and twenty to one hundred and eighty dollars per annum.

      October 21.

      R. H. Moms, for the complainant.

      J. P. Cushman, for the defendant.
   The Chancellor.

No objection is made to that part of the master’s report which fixes the allowance for law expenses ; and the amount thus fixed must be paid to the complainant or her next friend, or the solicitor for the complainant, without delay, that the suit may proceed and be brought to a termination. In disposing of the questions which arise upon these exceptions, I shall endeavor to do so unbiassed by facts and circumstances which came to my knowledge while sitting in another place, and shall decide the exceptions upon the facts, as they appeared before the master on this reference. The first question that arises is, whether the allowance for temporary alimony should be estimated according to the expense of board and clothing in the city of N. York, where the complainant has resided since her separation from her husband, or according to what her board and clothing could be procured for in a farmer’s family in the country, or in the neighborhood of the defendant. N. York was her paternal home, and the place to which she would naturally go upon being compelled by cruel usage to leave the house of her husband. And although her surviving parent is now dead, it would be unreasonable to require her to go into the country, or among strangers, to reside pending this litigation ; unless the expense of supporting her at her present residence, among her friends and acquaintances, should be found wholly disproportioned to the property or means of her husband. The property of the defendant, even at the lowest estimate of his own witnesses, is unquestionably sufficient to support his wife at her present residence in New-York, until the termination of this suit, and to leave a competency for himself, during the litigation and afterwards ; unless the result of the suit should show that the complainant has paramount claims upon such property, for a separate maintenance for life, arising from his misconduct towards her.

It does not appear that the defendant has any children, or that there are any other persons who have a natural claim upon him for support. There is therefore no reason why even temporary alimony should be limited to a certain proportion of his income only, leaving the principal of his property untouched ; as the exhausting of the whole principal, for the support of himself and his wife during their lives, would leave no one destitute, who has any natural claims upon his bounty, at his death. This temporary allowance cannot break in much upon the principal of his property, unless the litigation should be unnecessarily protracted. But, as a general rule, to guard against any abuse of the privilege of the wife to obtain a temporary support pending a suit for a divorce or separation, and to prevent the bringing of improper suits for the mere purpose of obtaining a support during a protracted litigation, the temporary alimony must be limited to the actual wants of the wife, until the termination of the suit in her favor establishes the fact that she lias been abused and is entitled to a more liberal allowance. Applying that principle to the present case, I should think the allowance of $25 per month, as fixed by the master, was too large an allowance for temporary alimony, did it not appear, by the testimony of the lady with whom the complainant resides, that the state of her health is such as to incapacitate her from doing any thing towards her own support. That circumstance, which was probably unknown to Curtis, the other witness, prevents me from reducing the allowance to $250 per annum, the lowest sum mentioned by him. I shall therefore leave it as fixed by the master. The first exception must be overruled ; and so much of the report as relates to the amount of the monthly allowance, and the time from which it should commence, is confirmed.

Considering the distance at which the parties reside from each other, and the inconvenience and expense of making so many small payments at such a distance from the residence •of the party who is to pay, I think the master should not have required the payments to be made monthly. It probably will answer the purposes of the complainant nearly as well to have the payments made quarterly, at the expiration of every three months, and the "trouble and expense to the defendant will be considerably lessened, if he is permitted to make the payments at the end of every three months only. The report must be modified accordingly. And the defendant must pay to the complainant, or to her next friend, or solicitor, for her benefit, the allowance for the first nine months, commencing in the month of January last, on the 27th of October, 1834, or within 20 days after notice of the order, together with the amount allowed by the master for law expenses, if that has not already been paid. The subsequent payments to be made quarterly, until the further order of the court, during the continuance of the suit.


author: -The Chancellor.

text:
    Gridley and others vs. Garrison & Forman.
    The court of chancery will entertain a suit for an equitable set-off of one judgment against another, although the complainant has another remedy by a summary application to the court of law in which the judgment against him was recovered.
    But as the complainant, in ordinary cases, has a more cheap and expeditious remedy, by the application to the equity powers of the" court of law, such suits in this court will be discouraged by refusing costs to the complainant, except in special cases.
    The lien of the attorney, for his costs of the suit, is paramount to the claim of the adverse party, to set off a judgment recovered against the client in another suit.
    This was an appeal from a decree of the" late equity court of the seventh circuit. The complainants, in October, 1825, recovered a judgment against W. Garrison in the Onondaga common pleas, for about $400. They afterwards took out a ca. sa., but by mistake it was issued as upon a judgment in the supreme court. An action of false 'imprisonment was thereupon brought by Garrison, in the supreme court, against H. Raynor, one of the complainants, who delivered the erroneous ca. sa. to the sheriff, and a judgment was recovered against him for $60 and the costs of suit. The defendant S. Forman was the attorney for Garrison in the last mentioned suit, and being entitled to the costs, he took from Garrison an assignment of so much of the judgment as related to the. costs, although he had previously been informed by the attorney for the complainants that they intended to apply to offset the judgment in favor of Garrison against an equal amount of their judgment against him. The complainants thereupon filed their bill in the present suit to compel an offset, alleging therein that Garrison was insolvent. The defendant Forman insisted upon" his right to the costs; and Garrison, who put in a separate answer, alleged that he had assigned a mortgage to the complainants and D. W. Forman, as a collateral security for their judgment, and that the proceeds of certain personal property should also be applied towards the judgment. Upon the hearing before the equity court, the facts stated in the bill were established; but the circuit judge directed the bill to be dismissed, with costs. From that decree the complainants appealed to this court.

      October 21.

      M. P. Randall, for the complainants.
    The court of chancery has competent authority and is the proper tribunal to allow the set-off prayed for in the bill. (Ex parte Stevens, 11 Vesey, jun. 24. Ex parte Haman, 12 Id. 345. Simpson v. Hart, 14 John. R. 63.)
    The judgment in favor of the complainants against Garrison is a liquidated demand, and sufficiently certain to authorize the set-off.
    The defendants have not proved the alleged agreement to apply the avails of the property purchased by H. Raynor, on the judgment in favor of the complainants. The agreement set up in the answer, being a distinct fact and not called for by the bill, must be proved. (14 John. Rep. 63.) And the agreement, if proved, is void for want of consideration.
    The assignment of Orin Dean’s mortgage to D. W. For-man, as a trustee, is shown not to have been available, and the cestui que trusts, not having received the benefit of it, are not affected by it.
    The receipt of the small sums by Raynor will not affect the right of set-off, so long as it is manifest there remains a balance due on the judgment in favor of the complainants, more than sufficient to cover the judgment of Garrison. A partial payment of a judgment cannot affect the right of set-off. The rule that uncertain and unliquidated demands cannot be set-off is not applicable to a case where the demands on both sides have been liquidated by judgment; but to a case where the demand on one side only has been liquidated, as in The Mohawk Bank v. Burrows, (6 John. Ch. R. 317.)
    The judgment, not being between the same parties, cannot affect the right of set-off; especially as the complainants all assent to it, and as they are all equitably interested. The authorities upon this point are numerous. I refer to the following : Mitchell v. Oldfield, (4 Durn. & East, 123 ;) Deriem v. Elliott, (2 H. Black. 588;) Schoale v. Noble, (1 Id. 23 ;) Na

      vy v. Brigham, (Idem, 217;) Cramer v. Morphy, (Idem, 657;) Simpson v. Hart, (1 John. Ch. Rep. 91;) Durwer v. Lyon, (3 Id. 358.)
    The attorney of Garrison has no lien for the amount of his account, which can prevent the set-off between the parties. 8. Garrison, in his answer, disclaims all interest under the assignment, and relies only on his lien as attorney. This is not sufficient to prevent the set-off. (Mohawk Bank v. Burrows, 6 John. R. 317. 13 John. R. 307.)
    The equity of the case requires that the demands should be set-off, as it is sufficiently shewn that without it the complainants will lose their demand by the insolvency of Garrison, who seeks to collect the debt due him, while he refuses to pay the one existing against him. And as to a court of law having jurisdiction and being the proper tribunal to grant the relief, it will be observed that the defendants did not, in their answer, insist upon that fact, but submitted the question to this court. They could not, therefore, on the hearing, object that a court of law was the proper tribunal; and if they could not raise the objection, it seems to follow of course that the vice chancellor erred in refusing to grant relief upon a ground that the defendants were precluded from insisting upon. (Grandin v. Le Roy, 2 Paige, 509.)

      H. Baldwin, for the defendant Garrison.
    A court of equity will not compel an offset of judgments between parties of different and distinct rights and interests, and where there is no mutuality. The court will not compel Garrison to set off his judgment against Henry Raynor only, against the judgment of the complainants againt him, because there is no mutuality. Garrison could not compel the complainants to offset, because he can enforce his judgment against Henry Raynor only. Suppose Henry Raynor was insolvent, could Garrison collect his judgment of the other complainants, or compel them in a court of equity to offset % All the authorities establish this principle : “ If the legal or equitable claims or liabilities of many become vested in, or may be urged against one, they may be set off against separate demands,” and vice versa. (Simpson v. Hart, 14 John. R. 75, per Spencer, J. and the cases there cited.) This,principle embraces only two classes of cases: 1. Where the legal or equitable claims of many are vested in one, that one may offset the same against a separate demand, that is, a demand against him alone. 2. Where the legal or equitable liabilities of many may be urged against one, that one may offset the same against a separate demand, that is, a demand against him alone. And the reverse of these two cases is, that a person having a demand against several, which may be urged or enforced against one of them, or for which demand one of them is legally or equitably liable for the whole, such person can compel an offset of his demand against the several persons, against the demand of any one of those several persons, who is liable for the whole. If the claims of the complainants against Garrison, to wit, their judgment, were vested in Henry Raynor, perhaps he might then offset that judgment against Garrison’s judgment. But the interest of Gridley and Willet Raynor is not vested in Henry Raynor by assignment or otherwise; neither are there any legal or equitable liabilities as to the complainants which can be urged against one of them, for Henry Raynor alone is liable on the Garrison judgment, must pay the whole, and he cannot legally or equitably claim contribution from the other claimants. If Garrison’s judgment were against all the complainants, and one of them had a judgment against him, then either party could compel an offset, because the legal and equitable liabilities of the complainants could be urged against the one who should have the judgment against Garrison ; and all the authorities are so, and predicated upon that principle. Shall the complainants say that they were willing and offered to let Henry Raynor offset their interest ? Still they are not bound so to do, nor does that offer or willingness vest any of their rights in Henry Raynor. Neither could Garrison compel them to offset; their offer was without any binding or legal force on the complainants, Gridley and Henry Raynor. And though Garrison may be insolvent, it is no reason that he shall be compelled to pay the complainants in preference to his other creditors; and what is conclusive, it is mutuality that constitutes the very essence of the principle of set off. (2 Cowen, 173, per Woodworth, J. 4 John. Ch. Rep. 11. 3 Id. 351. 14 John. Rep. 75, per Spencer, J.) The complainants’ judgment being by confession, and as security against the endorsement of his note, is subject to the original equitable claims between the parties interested previous to the condition of the judgment. And there are persons interested in those claims and in the judgment who are not parties to this suit. Daniel W. Forman, the witness, should be a party to this suit. If, then, D. W. Forman is not a party to the suit, the court cannot decree relative to the bond and mortgage, or the monies received thereon. The answer of Garrison is evidence as far as it relates to the payment of the complainants’ j udgment; and the judgment being paid, either wholly or in part, and being unliquidated, cannot be set off. The whole answer to every interrogatory must be taken together ; and being responsive to the bill, is therefore evidence. (Woodcock v. Bennet, 1 Cowen, 711; per Wooworth, J. 742; Argument of Emmet, 744, note a. Field v. Holland, 6 Cranch's R. 24.) The offset of judgments in a court of equity, and particularly where the parties are different, has been allowed only in cases where the whole judgments were due. Courts of law have the same powers to set off judgments as courts of equity; and if either of the judgments are unliquidated, how shall they liquidate them ? The defendants are entitled to costs, whether the offset be allowed or not The defendant Garrison could riot, if the offset was proper, consent to it until the complainants accounted for the money and property received on their judgment; for he swears in his answer that he believed the judgment was paid in full; and his answer is certainly evidence wdth respect to costs. (Vancover v. Bliss, 11 Vesey, 458.)
    23. W. Leavenworth, for the defendant Forman.
    The attorney’s lien for costs will be preserved where the judgments intended to be set off are in different rights. It cannot consist with equity to take his earnings and bestow them upon Gridley and Willet Raynor, who are strangers, and who, even as it regards Garrison, are not entitled to the equitable interposition of the court; for all the equities of the complainants’ case centre in Henry Raynor. (1 Paige’s Rep. 622.) Inasmuch as there are claims to be investigated between the parties to these judgments, this defendant is not to be delayed in the collection of his costs until those claims are settled. (Mohawk Bank v. Burrows, 6 John. Ch. Rep. 317.) The defendant Garrison’s answer is evidence for this defendant. The complainants have read the whole of S. Forman’s answer, wherein he states Garrison’s declaration of the payment of the complainants’ judgment, thereby making Garrison’s declarations evidence in the cause. By that answer, all the equities of the complainants’ bill are denied. He is a competent witness, not having any interest in the question of costs. That this defendant ought not to be subjected to costs of the set off is allowed.
   -The Chancellor.

The judge, in delivering bis opinion in the equity court, puts his decision upon two grounds : First, That the complainants’ demand is unliquidated, inasmuch as several payments and offsets are claimed; and Secondly, That the remedy of the complainants was adequate at law. Their judgment, however, was not an unliquidated demand, within the meaning of the rule to which the circuit judge refers. It was so far liquidated that they were entitled to take out an execution for the balance due thereon, subject to the right of the defendant to apply for summary relief if they attempted to collect more than was justly due. If it was doubtful whether enough remained due to pay the judgment which was to be off-set, it should have been referred to a master to report and ascertain what payments had been made. The total insolvency of Garrison, and the fact that he had a judgment on which an execution had been taken out and served, showed that there was no remedy at law which ought to deprive the complainants of the right to apply to a court of equity for relief.

The right of a party to apply to the equity powers of a court of law, to set off one judgment against another, is not such a remedy at law as will deprive this court of its jurisdiction to decree a set off in such cases. At most it is only a concurrent-jurisdiction in a court of law to grant the relief sought. And where this court originally had jurisdiction in a partiallar case, it cannot now decline jurisdiction, because courts of law have recently commenced the exercise of a jurisdiction, in similar cases. In the casé of a set off of this description this court cannot refuse to take jurisdiction of the cause, without overruling the decision of the court for the correction of errors, in the case of Simpson v. Hart, (14 John. Rep. 63.) I agree that parties should not be encouraged to come into this court for relief in such cases, when there is a very cheap and much more expeditious remedy by an application to the equity powers of the court in which the judgment is rendered. The proper mode, however, of remedying that evil is not by refusing to exercise the long established jurisdiction of this court in such cases, but by refusing to give costs to the complainant, who has subjected his adversary to the useless expense of a litigation in this court instead of making a summary application to the court of law. In this case there is no doubt, from the evidence, that there was more due upon the complainants’ judgment than the amount of damages in the judgment recovered by Garrison; but I see no 'cause for coming into a court of equity for relief, except for the purpose of multiplying costs unnecessarily. I think the equity court, therefore, instead of dismissing the bill, with costs, as against Garrison, should have directed the part of that judgment which belonged to him to be off-set, against so much of the complainants’ judgment, but without costs.

The rights of the complainants as against S. Forman, the attorney, are entirely different. Their counsel seems to suppose that he obtained his equitable claim to the costs by the assignment, which was subsequent to the time when their equitable right of set off accrued; and that they are therefore entitled to relief, as having the prior equity. In this, however, their counsel has mistaken the law of this court. The attorney had an equitable lien for his costs independent of and long previous to the assignment; in fact, from the commencement of the suit. Which lien was paramount to any claim of set off in another suit. This question was so fully considered in the case of Dunkin v. Vandenburgh, (1 Paige’s Rep. 622,) that it is only necessary to refer to the decision in that case, as having settled the question in this court. I may also observe that it has recently been decided in the same way in the court of king’s bench, in Ireland. (See Reddy v. Bradshaw, Batty’s Irish Term Rep. 566. Uniacke v. Howard, Id. 568.)

The decree appealed from, so far as respects the dismissal of the bill, as against Garrison with, costs, must be reversed; and a decree must be entered, allowing the set off to the extent of the damages in his judgment. But so far as respects the dismissal of the bill, with costs, as against the defendant 8. Forman, the decree is affirmed; and neither party is to have costs as against the other, upon this appeal.


text:
    Bleakley vs. White.
    Where the complainant was sued for false imprisonment for an act done by him, in the discharge of his duty as a police officer in the city of New-York, ■and afterwards recovered a judgment for costs against the plaintiff in that suit, which costs were subsequently paid to the complainant, by the corporation of the city, as a gratuity; Held, that such payment Was no bar to a suit, by a creditor’s bill in this court, to recover the costs out of the prop- „ erty of the plaintiff in the original suit.
    Payment by a stranger, between whom and the defendant there is no privity, cannot be pleaded by the latter in bar of a suit for his own debty/
    October 21.
    This case came before the court upon the defendant’s plea to a creditor’s bill. It appeared from the plea that the present defendant sued the complainant as captain of one of the watch districts in the city of New-York, for false imprisonment. That he failed in his suit, and judgment was given against him for $238,18 costs. A fi. fa. upon the judgment having been returned unsatisfied, the complainant petitioned the corporation for remuneration for his expenses, and be was allowed the amount of taxed costs and his counsel fees, but without interest. The payment thus made by the corporation was pleaded in bar of the present suit.

      W. Silliman, for the complainant.
    The plea is double, therefore bad. 1. It alleges payment by a third person; 2. It alleges an assignment to a third person of a part of the judgment; 3. It alleges that no execution has been issued since the assignment; 4. It alleges that the suit is prosecuted without the authority of the assignee. A double plea can only be plead by leave of the court. (Gibson v. Whithead, 4 Mad. Rep. 241. Mit. 295.) Payment of a judgment by a third person, having no agency, for a connection with the defendant, is not a good plea, either in law or equity. Payment of part of a judgment by a third person does not necessarily operate as an equitable assignment of the judgment, or of part of the same. If it does, the party having the legal interest may sustain the suit, and account to the cestui que trust. The facts set forth shew that the payment was a mere gratuity to the plaintiff) and not intended to extinguish any claim of his against the defendant.
    «6. Tabor, for the defendant.
    The taxed bill of costs in an action of tort does not draw interest, and the full amount of the judgment for costs having been paid by the corporation of N. York to the complainant, the demand is satisfied as to him. 1. Costs are given by the legislature by way of penalty, not to be increased by the addition of interest; 2. The complainant could not collect interest by an execution on the judgment, and for which execution this proceeding is a substitute. (2 R. S. 364, § 9 ;) 3. And at common law no interest was recoverable ; cases cited 5 Cowen’s Rep. 608, 9. All that was due to the complainant on the judgment having been paid to him, at his request, the corporation of New-York, if any one, and not the defendant, had a right to sue in this court. If the judgment for costs did draw interest, the complainant could recover it only to the time of payment to him of the principal. His claim, therefore, in this suit, is in any event less than $,‘100 ; which is a statute bar to his action in this court. (2 R. S. 173, § 37. Smets v. Williams, 4 Paige’s Rep. 364.) The corporation of New-York, to whom the whole principal, at least, of the judgment equitably belonged, ought to have been made parties to the suit; and the neglect to make them parties the defendant may avail himself of by plea. (2 Paige’s Rep. 280. Id. 278. Cases cited, Edwards on Parties, 2, 3, &c. Mitford’s Pl. 286.)
   The Chancellor.

The plea of the defendant is clearly bad. It is evident from the facts stated in the plea that the corporation did not make this payment for the benefit of the defendant, but as a gratuity to its officer for the loss he was supposed to have sustained in consequence of an act done in the discharge of his duty. The payment of this amount, without any agreement, either express or implied, that the judgment was to be assigned to, or holden for the benefit of the corporation, gave the corporation no equitable claim upon the defendant; though they may have a claim upon the complainant for the repayment of the money, if he is successful in collecting it from the one who in justice ought to pay. A satisfaction by a stranger cannot, even at law, be pleaded in bar of a debt or covenant which the defendant was legally bound to pay, or perform himself. (Edgcumbe v. Roe, 1 Smith’s Rep. 515. Clow v. Borst, 6 John. Rep. 37.) And certainly it ought not to avail the defendant in the present case, where there is not even a pretence of equity in the defence set up. The plea must therefore be overruled with costs. And the defendant must pay those costs, and put in his answer within twenty days.


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    Van Buren vs. Olmstead and others.
    si Seed, although absolute in its terms, may be proved by parol'to havebeefc intended by the parties thereto to operate only as a mortgage; and a judgment creditor of the mortgagor will be permitted to redeem the premises in the hands of the heirs or personal representatives of the mortgagee, upon the payment of the amount justly due.
    Where the mortgagee takes possession of the mortgaged premises before foreclosure, and occupies them himself, he must account for the rents and profits, at the rate of rent which the premises by ordinary care would have produced exclusive of taxes and repairs.
    Where the party entitled to redeem offers to pay to the defendant the whole amount equitably due, before he files his bill to redeem, he will not be charged with the defendant’s costs.
    Previous to 'April, 1823, John Fross was the owner of a farm in the county of Columbia, on which J. Vanderpoel held a mortgage; upon which mortgage a decree for a foreclosure and sale had been entered ; and a judgment had also been recovered on the bond given as a collateral security for the •payment of the debt. On the 22d of April, 1823, Fross, being then indebted to the complainant in this suit, gave to J. C. Olmstead a deed of the farm ; which deed was ab„ solute upon its face, and purported to be for the consideration of ^ 1500. The deed was not recorded until March, 2827; and Fross remained in possession of the farm until some time after the death of Olmstead, who died in August, 1824. Three days after the date of this deed, Olmstead paid to Vanderpoel $>‘587,74, the amount due on his bond and mortgage for principal, interest and costs, and took from him an assignment of his judgment and decree against Fross. After the death of Olmstead, the complainant instituted a suit against Fross to recover the amount of his debt; and obtained judgment therefor in January, 1826. Under a sale by the sheriff, upon an execution issued on this judgment, the complainant became the purchaser of all Fross’ interest in the farm, in August, 1826; and after the expiration of fifteen months, received a conveyance from the sheriff, dated the 25th of December, 1827. In June, 1828, the complainant applied to two of the personal representatives of Olmstead, one of whom was his widow, and offered to pay them the amount which was paid by the decedent to Vanderpoel, with interest thereon, after deducting the rent of the farm received by the administrators; upon their assigning to him the decree, and delivering possession of the farm, or transferring to him the lease if the farm was then rented out. And the complainant offered tB pay a larger sum, if they would furnish a statement and satisfy him that any thing more was justly due. But they declined doing any thing about it. The complainant thereupon filed his original bill, in this cause, against the widow and other personal representatives of the decedent Olmstead ; alleging, among other things, that the deed from Fross to Olmstead was given for the purpose of defrauding the complainant of his debt, but upon a secret understanding between Fross and Olmstead that it should be held only as a security for the money advanced for the benefit of Fross. A supplemental bill was afterwards filed, making the heirs aft law parties to the suit.

      C. Busknell, for the complainant.

      E. Williams, for the defendants.
   The Chancellor.

It is now well settled, that paroi evidence is admissible to show that a deed, absolute in its terms, was intended by the parties as a mortgage, or security for the payment of money merely. And in this case, although the uncorroborated evidence of Fross, impeached as it is, would not be sufficient, of itself, to sustain the complainant’s allegation that this deed was only intended by the parties to operate as a mortgage, it is shown, from Olmstead’s own admissions to Hoffman and Vanderpoel, that it was taken merely as a security for the amovint paid to Vanderpoel, and for other sums which were then justly due from Fross to Olmstead. If the testimony of Fross is to be credited entirely, the deed was only intended to secure the amount paid to Vanderpoel; leaving Olmstead without any security for the seventy dollars due to him on. the notes, which Fross admits he then held against him. In the first place, it is highly improbable that Olmstead would receive the deed as a security merely for the money advanced for Fross on the mortgage, when there was a still further sum previously due to himself, It is inconsistent, also, with the declarations of Olmstead to Vanderpoel and to Hoffman that it was taken to secure a previous indebtedness, as well as the amount which was due on Vanderpoej’s judgment and decree. And in the letter of Olmstead, of the 9th of April, 1823, inquiring of Vanderpoel as to the amount due on the mortgage and the terms of payment which will be required, he says he shall be under the necessity of raising that mortgage to secure a demand due to himself I think there is a sufficient allegation in the bill ■that the deed was given with a view to defraud the complainant. And if that fact had been established by the proofs, the ■deed would be set aside as fraudulent, absolutely and unconditionally ; leaving the representatives of Olmstead to their lien upon the land by virtue of the assignment from Vanderpoel. But even Fross does not venture to swear that he and Olmstead had any such fraudulent object in view when the deed was given, although be leaves it to be inferred from other facts which are stated in his deposition. If the parties to the deed intended to commit such a frond, Olmstead must have been a very stupid rogue to make the statement which he did to Judge Vanderpoel and to Hoffman a few days after the giving of this deed. On the whole, I am not satisfied, from this evidence, that any fraud was intended on the part of Olmstead; but have arrived at the conclusion that the deed was taken by him in good faith, to secure the repayment of the sum advanced on the mortgage, and the balance previously due to himself, which balance he told Judge Vanderpoel was less than $100. I must therefore declare and decree that this deed, though absolute on its face, is only valid as a mortgage for the security of the sum of $587,74, paid to Vanderpoel, with interest from the time of such payment, on the 25th of April, 1823, and'such sum as was justly due from Fross to Olmstead at the date of the deed, with interest thereon. That the complainant is entitled to redeem, upon payment of the said two sums, with interest, after deducting therefrom the rents and profits received by the defendants, or any of them, subsequent to the time that Fross occupied the farm'. That it be referred to a master residing™ the county of Columbia to take and state an account of what is due, upon the principles above stated. That the master charge, as an offset against the amount due to the defendants for principal and interest on the said security by way of mortgage, the amount of rents and profits of the premises since 1826, and including the amount received from the tenant for that year. That in estimating the rents and profits, if the premises have not been rented out at a fair cash rent, the master charge a fair cash rent therefor such as might have been received, with reasonable care and prudence, over and above the taxes-and repairs, as, from the present situation of the premises, such repairs shall appear to have been made. The master is also to allow interest as-shall be just. And upon the coming in and confirmation-of the master’s report, the complainant is to pay to the personal representatives of Olmstead the amount reported due, with interest from the date of the report, within three months after the confirmation of the report. Upon the payment thereof, the complainant is to be let into possession of the premises; and the widow, and the heirs at law who are adults, must execute to the complainant a release of all their interest in the premises, with covenants against their own acts, upon the request and at the expense of the complainant. And the infant defendants, respectively, as they arrive at age, are to execute similar releases.

The situation in which this property was left at the death of Olmstead rendered it impossible for the personal represntatives to give to the complainant his equitable rights, without the aid of this court; as the legal title to the land was prima facie in the infant heirs. The offer to pay, under such circumstances, was not sufficient to deprive the defendants of interest on their debt, to be off-set against the rents and profits with which they are chargeable. Neither do I think they should, under the circumstances of (his case, be charged with the complainant’s costs. The general rulo is, that a complainant seeking to redeem does not recover costs, but pays costs to the other party, although he obtains a decree in his favor allowing him to redeem-. But, in this case, the complainant. has done every thing he could to save the expense of this litigation ; the whole of which has probably been produced by the irregular and improper mode adopted by the decedent, in taking an absolute deed for the security of his debt, instead of adopting the ordinary mode of security, which upon its face would have showed the transaction as it really was. I do not think it would be just and equitable to charge the creditor coming to redeem with the costs of this defence. The complainant must, therefore, bear his own costs; and the costs of the defendants must be paid by the personal representatives, out of the fund to be received by them under this decree.