text:
    Laurie vs. Laurie.
    An injunction should be clear and explicit in its terms, and should not de» prive the defendant of any right which the case made by the bill does not require he should be restrained from exercising.
    An injunction restraining a husband from ahnoyitig, following, or claiming, his wife and children, is not violated by his writing a letter to his wife, although he reflects in such letter upon her alleged misconduct.
    In a suit commenced by a wife against her husband, for a separation, an'injunction master is not authorized to allow an injunction which will deprive the husband of the custody and control of his children.
    The power to grant such an injunction is alone possessed by the court of chancery, and cannot be delegated by the court to an injunction master. An injunction master may, however, in a proper case, allow an injunction restraining the defendant from carrying the children of the marriage or permitting them to be carried out of the state, until an application can be made to the court for an order declaring which party shall have the custody of such children pending the litigation.
    Where money is advanced by the defendant, to the next friend of the wife, under an order of the court, to enable such next friend to carry on her suit for a separation; if she fails in obtaining a decree of separation, the next friend may be compelled to refund the money so advanced to the defendant with interest; and the order for such allowance should contain a provision to the effect, that the moneys so advanced are to be restored to the defendant by the next friend, with interest, if the court shall thereafter direct it to be done.
    As a general rule, the court ought not to make any order ex parte, on the subject of the care and custody of the children pending a suit between husband and wife for a separation.
    July 20.
    The bill in this cause was filed for a separation, on account of the alleged cruel usage of the complainant by her husband. Upon filing the bill/an exparte injunction had been allowed, by an injunction master, to restrain the defendant from annoying, following, harming, taking possession of, or offering any personal violence to, his wife or his children.- On the coming in of the answer, an application was made to dissolve the injunction. A cross application was also made, by the complainant, for an attachment against the defendant for an alleged violation of the injunction ; and a further application for alimony and for an allowance to carry on the suit.

      J. Rhoades, for the complainant.

      A. Thompson, for the defendant.
   The Chancellor.

It is evident from the language of the injunction in this case that it was allowed without due consideration. ‘As the defendant is bound to obey the process of the court at his peril, the language of the injunction should in all cases be so clear and explicit that an unlearned man can understand its meaning, without the necessity of employing counsel to advise him what he has a right to do to save him from subjecting himself to punishment for a breach of the injunction. And the language of the writ should at the same time be so restricted as not to deprive him of any rights which the case made by the bill does not require that he should be restrained from exercising, y Here the defendant is not only restrained from offering any personal violence to his wife and children, who have left his house, but he is prohibited from annoying them, following them, or even claiming them. And an application is now made to punish him for a breach of this injunction, on the ground that he has annoyed his wife by writing a letter to her, informing her that he had sent her some bedding and clothing which her next friend had requested him to send to her; but which letter also contained passages reflecting severely upon her conduct.

Again ; the injunction master was not authorized to grant an injunction the effect of which was to deprive the defendant of the custody and control of his children. The statute authorizes this court, upon a bill filed for a divorce or separation, to provide for the care and custody of the children of the marriage, pending the litigation, as it may deem necessary or proper. But that is a power which cannot be delegated by the court to an injunction master. And as a general rule no order upon the subject should be made by the court itself ex parte, except in a case of urgent necessity. An injunction however may be allowed, in a proper case, to restrain the defendant from carrying the children of the marriage or permitting them to be carried out of the state, and beyond the jurisdiction of the court, until an application can be made to the court for an order declaring which party shall have their custody pending the litigation. Without inquiring whether any part of the injunction as originally granted was proper, the answer appears to be a substantial denial of any cruel treatment which would entitle the wife to a decree of separation. The injunction must therefore be dissolved.

Giving the utmost latitude to the clause of the injunction restraining the defendant from annoying his wife, or claiming his children, I do not think he has clone any thing which can properly be considered a violation of its provisions. It appears that the letter was written at the suggestion of the next friend of the complainant, and put into his hands unsealed, so that he might look at it and deliver it to her if he thought proper. He cannot therefore complain, in her behalf, that the harsh clauses contained in that letter was a violation of the injunction ; although they had no relation to the necessaries sent for the use of the complainant and her child, on account of which the defendant was asked to write the letter. If the letter was a breach of the injunction, the next friend should not have delivered it to her; and if he had kept it from her, she could not have been annoyed either by the civil or uncivil clauses contained therein. The claim to his child, as appears by the affidavits produced by the defendant, was nothing more than an expression of a wish to have back his youngest child, and a hope that the chancellor would restore it to him; declaring at the same time to Mrs. Dogherty that he w-ould not act in opposition to the injunction. He correctly concluded that an application to the court, to have the custody of the child restored to him, could not be properly considered such a claiming of his child as would amount to a breach of this extraordinary injunction. The motion for an attachment must, therefore, be denied, with costs to be paid by the next friend, who is legally liable therefor.

It does not distinctly appear from the affidavits on the part of the defendant that he is entirely destitute of property. There must therefore be the usual reference to a master to report what will be a proper allowance to be paid to the next friend of the complainant, to enable her to carry on the suit, and to be refunded to the defendant, with interest, by such next friend, if she fails in obtaining a decree of separation; and also to report what will be a proper allowance for her support pending the suit. But it may be proper to suggest that under the circumstances of this case, as they appear from the affidavits on the part of the defendant, if it satisfactorily appears to the master that the defendant is entirely destitute of any property except that which is already in the custody of the complainant, no allowance should be made by him for either object.

Until the further order of the court the complainant is to have the custody of the youngest child, and the defendant the care and custody of the two eldest; with liberty to either party to apply for such change of custody as he or she may be advised to make. Upon such an application she will have an opportunity to repel the charge now made against her, by the affidavits, that she indulges in the too frequent use of intoxicating liquors.


source: Caselaw Access Project

author: The Chancellor.

license: Public Domain

text:
    Van Epps and wife vs. Van Epps.
    Where a husband and wife were seized of real estate in right of the wife, which was subject to a mortgage executed by them to their son and which had been by him assigned to a monied corporation, afterwards sold such land subject to the mortgage which the purchaser agreed to pay, and who gave to the son another mortgage for the residue of the purchase money, and the son gave to his parents a declaration of trust, slating that the junior mortgage was held by him in trust to receive the interest thereof and the rents of certain other property, and to pay over the same to them during their lives, and after their deaths, unless sooner required to do so by them, to divide the principal of the bond and mortgage and the other trust properly among their heirs at law; Held, that the trust was valid ; and that upon a foreclosure, by the corporation, of the prior mortgage, and a sale under the same, the son who held the junior mortgago as trustee could not become the purchaser of the mortgaged premises for his own benefit, to the 'prejudice of the cestuis que trust.
    No person is permitted to purchase an interest in property, and hold it for his own benefit, where he has a duty to perform, in relation to such property, which is inconsistent with the character of a purchaser thereof on his own account and for his individual use or benefit.
    Where property is conveyed to trustees upon a trust to receive the rents or income thereof for the use of the cestui, que trust for life, and after his death to convey the property to his heirs, the interest of the cestui que trust for life in such property is inalienable; and he cannot authorize tire trustees to seil the trust property; nor can he pledge his interest in the future rents or income thereof, to the trustees or otherwise.
    If a trustee has been guilty of a breach of trust and is insolvent or irresponsible, the court of chancery will remove him from his trust-

      July 30.

    This was an application to dissolve an injunction, upon bill and answer. On the first of April, 1837, the complainants, E. Van Epps and wife, in right of the wife, were the owners of a farm in Greenbush ; which was subject to the lien of a mortgage of $5000, executed by them to the defendant, their son, and by him assigned to the New-York Life Insurance and Trust Company. They sold this farm to A. 0„ Spencer, for $15,000 ; and, as a part of the consideration for the purchase, he assumed the payment of the previous mortgage, and also conveyed to the defend' nt three houses and lots in Greenbush and about 800 acres of land in the county of Clinton. And for the residue of the purchase money, Spencer executed to the defendant his bond and mortgage upon the premises, for $6000, payable in three instalments of two, six, and ten years, with interest semi-annnally. On the fifteenth of the same month the defendant executed, under his hand and seal, a declaration of trust; which was duly acknowledged and recorded in the office of the clerk of the county of Rensselaer. This instrument recited the conveyance to Spencer, subject to the $5000 mortgage held by the Trust Company, the conveyance to the defendant of the three houses and lots and the 800 acres of land in Clinton county, in part payment of the purchase money upon the sale of the farm, and the giving of the $6000 mortgage to him for the residue thereof; and it declared that the defendant had received such bond and mortgage and conveyance, for the benefit of the complainants, upon trust, to receive the interest upon the mortgage and the rents of the three houses and lots and of the Clinton county lands, and to pay over such interest and rents to the complainants during their lives 3 and after their decease, unless required by the complainants sooner to do so, to divide the residue of the trust property between the heirs of the complainants. Spencer afterwards became insolvent and neglected to pay the interest, to the Trust Company, upon the $5000 bond and mortgage ; in consequence of which default that mortgage was foreclosed. Upon the sale of the premises under that foreclosure the defendant became the purchaser thereof, for the sum of $6450 3 of which sum, by a previous arrangement with the officers of the company, $4600 was allowed to be secured by the defendant in a new mortgage upon the premises. And under the master’s deed upon that sale the defendant claimed the farm as his absolute property, discharged of any claim thereon in favor of the complainants under the subsequent bond and mortgage of Spencer, which the defendant held in trust. The defendant afterwards sold 300 acres of the Clinton county lands, for his own benefit, in violation of the trust.
    The bill of the complainant, among other things, also alleged that the defendant induced them to remove to the county of Oswego, to erect a dwelling house, See., upon a piece of land he owned there, under an agreement that if they would do so they should be permitted to occupy such house and ten acres of the land so long as they wished to reside there, free from any charge for rent, and that when they elected to remove he would refund the money expended upon the premises 3 but that he had, in violation of his agreement, distrained their property, and had also sued his father in the county court for rent alleged to be due for the premises. But this agreement was fully denied by the defendant’s answer.

      J. Rhoades, for the complainants.

      H. V. D. Van Epps, in proper person.
   The Chancellor.

The agreement relative to the occupation of the premises in Oswego county being fully denied by the answer, so much of the injunction as restrains the defendant from proceeding in the suit for the use and occupation of that property, or from proceeding in any other form to collect the rents thereof, must be dissolved ; leaving the complainant E. Van Epps to his defence at law, if he has any. But so far as relates to the farm at Greenbush, and to the trust property, and the rents, profits, proceeds, and income thereof, the injunction must be continued to the hearing and until the further order of the court.

The sale of the Clinton county lands for the defendant’s own benefit, was dearly a breach of trust; which, in connection with his insolvency, or pecuniary irresponsibility, as stated in the bill, is sufficient to authorize the court to remove him from his situation, as trustee. The nature of the estate in the trust property, as created by this declaration of trust, is a valid trust to receive the rents, income, and interest of the property for the use of the complainants for life, and after their deaths to convey rhe remainder in fee to their heirs in severalty. The interest of the complainants in the trust property is consequently inalienable during their lives, under the provisions of the 63d section of the article of the revised statutes relative to uses and trusts. (1 R. S. 729.) They could not therefore authorize the trustee to sell the trust property nor can .they pledge the future interest or income thereof, or authorize their trustee to anticipate the same as an offset against their previous indebtedness to him. And had the declaration of the trust been duly recorded in Clinton county, as it appears to have been in the county of Rensselaer, it would have been impossible for him to have conveyed any valid title to a purchaser of the trust estate situated in either of those counties. (1 R. S. 730, §64, 65.)

The defendant is also wrong in supposing that he was authorized to become the purchaser of the Greenbush farm, under the master’s sale upon the prior mortgage, for his own exclusive benefit, to the prejudice of the subsequent mortgage which he held in trust for others. The rule of equity which prohibits purchases by parties placed in a situation of trust or confidence with reference to the subject of purchase, is not, as the defendant supposes, confined to trustees or others who hold the legal title to the property to be sold ; nor is it confined to a particular class of persons, such as guardians, trustees, or solicitors. But it is a rule which applies universally to all who come within its principle ; which principle is, that no party can be permitted to purchase an interest in property and hold it for his own benefit, where he has a duty to perform in relation to such property which is inconsistent with the character of a purchaser on his own account and for his individual use. The cases on this subject are nearly all referred to in Hawley v. Cramer, (4 Cowen’s Rep. 717,) and in the very recent case of Greenlaw v. King, decided by Lord Cottenham in January last. (5 London Jurist, 18.)

Here the duty of the trustee, as the holder of the junior mortgage, was to make the mortgaged premises, if possible, produce upon the sale sufficient not only to pay olf the prior incumbrance, and the costs of foreclosure, but also to satisfy the subsequent incumbrance which he held in his fiduciary character; and this duty came directly in conflict with his interest, as a purchaser for his own benefit, to bid in the property at the lowest sum for which he could obtain it. The result of this conflict between his interest and his duty we find to be, that a farm which in April, 1837, was sold for $15,000 is, within three years from that time, bid in by him for the comparatively small sum of $6450; although the holders of the prior incumbrance were willing to let more than two thirds of that sum remain at interest, for an indefinite period, upon a new mortgage upon the premises. In cases of this kind, the court does not suffer itself to he drawn aside from the application of the equitable rule by any attempt, on the part of the purchaser, to establish the fairness of the purchase. In the language of the learned commentator on American law, the rule is founded on the danger of imposition, and the presumption of the existence of fraud which is inaccessible to the eye of the court. The policy of the rule is to shut the door against temptation ; which, in cases where the relationship before adverted to exists, is of itself deemed to be sufficient to create the disqualification. (4 Kent's Com. 438.)

Although the purchase in this case was in violation of the rule of equity and cannot therefore be sustained, it does not follow that the trustee is to lose the amount of his bid upon the property. But in equity he is allowed to hold it as security for that amount only, unless he elects fully to indemnify the trust estate by paying the whole amount of the principal and interest due upon the bond and mortgage "which he held in trust. In the present case, therefore, the income of the farm, or so much of it < s is necessary for that purpose, must be applied by the receiver from time to time to keep down the interest, on the bond and mortgage to the trust company ; and the residue must be retained by him to abide the decision of this cause.

And the application to discharge the receiver must be denied, with costs.


text:
    Richardson vs. Rust.
    Where a superintendent of the poor, who had claims against the county for his services and advances, sold to various persons to whom he was indebted for rent, and otherwise, specific portions of such claims, in payment of such debts, and agreed to give orders in their favor therefor when those claims were allowed; Held, that such creditors obtained a valid lien upon the fund ; and that giving directions to the clerk of the board of supervisors to enter the several sums thus transferred, to the credit of the persons to whom they had been sold, was no breach of an injunction granted upon a creditor’s bill filed subsequent to such sale.
    Whether a mere agreement by the owner of a fund to pay the debt of his creditor out of such fund, when received by him, gives to the creditor an equitable lien upon the fund ; Qu&rc ?

    Aug. 17.
    This was an appeal from a decision of the vice chancellor of the seventh circuit, denying an application for an attachment against the defendant, for the breach of an injunction issued upon a creditor’s bill. The defendant, who was one of the superintendents of the poor of the county of Onondaga, had various claims against the towns and county for services, which could not be audited and allowed until the annual meeting of the supervisors. And being indebted for rent, which he had no other means of paying, he agreed with his landlord, several months before the service of the injunction in this case, to give him a county order, for the payment of $100 of rent then due and to become due ; or, as the defendant stated in his affidavit in opposition to the motion, he sold to the landlord his claim against the county, to that extent, to pay the rent for the year ; and agreed to give an order for the amount when it was allowed. He also agreed with some other persons, who had furnished him with necessaries for his family, to give them orders for portions of his claims against the towns, in payment of their respective debts. The breach of the injunction complained of was, that the defendant, at the meeting of the board of supervisors, after the injunction had been served, gave to the clerk of the board a memorandum in writing of these claims upon the amount allowed for his services, and authorized and requested those several sums to be entered as due to the persons in whose favor he had agreed to give orders on the fund.

      E. W. Leavenworth) for the appellant.

      P. Outwater, Jun. for the respondent.
   The Chancellor.

The question presented in this case is whether the agreements made by the defendant with Wales, the landlord, and with certain other persons, who trusted him upon the faith of those agreements to pay them out of the amounts to be allowed for his claims against the county and towns, gave to such creditors an equitable lien or preferable claim upon the fund. Previous to the decision of the court for the correction of errors in the case of Hosack & Blunt v. Rogers, (18 Wend. Rep. 319,) I had supposed that an agreement, founded upon a good consideration, by which the owner of a fund promised to appropriate that fund to the payment or discharge of a particular debt, gave to the person with whom that agreement was made an equitable lien upon the fund. In that case, however, the court of dernier resort decided that the law was otherwise, and reversed the decision of this court on that ground; so far as I can understand the effect of that judgment. The authority of that decision was certainly very much shaken, by the opinions of the chief justice and other members of that court, when the same case again came before them upon appeal, in the year 1840. But as the decree of this court, founded upon that decision, was affirmed upon the ground that the former decision was conclusive upon the rights of the parties on that question,! might not consider myself authorized, while sitting in an inferior tribunal, to act in direct conflict with the decision as reported in 18th Wendell’s Reports. I consider the authority of that case so far impaired, however, that I do not feel bound to follow it beyond the express point decided, that a mere agreement, to pay out of a particular fund when recovered, does not give to the promissee an equitable lien upon the fund. And as the defendant in this case swears he 1 • _ sold the demands to the several persons, in favor of 'whom the orders were afterwards made, previous to the granting of this injunction, and not merely that he promised to pay them out of the fund when audited, I cannot say there was a breach of the injunction. The order appealed from must therefore be affirmed.

But as the appellant’s counsel was evidently misled by the general terms of this published decision of the court for the correction of errors, and not being aware of what had subsequently occurred in that court limiting at least the extent of that decision, I shall not charge his client with costs on the appeal; though, as a general rule, the respondent who succeeds upon an appeal is entitled to his costs.


text:
    Simpson vs. Brewster.
    The complainant, at any time before a decree in tile cause, may dismiss Ms bill upon payment of costs»

      A motion that the complainant’s bill be dismissed, upon payment of costs to be taxed, or that the complainant have leave to dismiss his bill upon payment of costs, will be granted, of course, before decree, upon a proper ap. plication for that purpose. But the suit is not at an end until the costs are paid, or at least have been tendered or offered to be paid.
    Under the usual order that the complainant’s bill be dismissed, upon payment of costs, the complainant must pay the costs if he wishes to put an end to the suit; and he is not authorized to offset the defendant’s costs against a judgment, or other liquidated demand, in favor of the complainant, without a special order of the court allowing such offset to be made.
    Where the complainant obtains the usual order to dismiss his bill, upon the payment of costs, but neglects to pay the costs after they have been taxed and demanded, the defendant may proceed against him as for a contempt, to compel the payment; or he may consider the suit as still pending, and proceed accordingly.
    If a complainant files a new bill for the same cause of action, before he has dismissed the former bill and paid the costs thereof to the defendant, the pendency of the first suit may be pleaded as a bar to the com» mcncemcnt of the second.
    Where a party to a suit makes an absoluto assignment of all his interest in the costs, to his solicitor, he cannot make an application to enforce pay» ment; but the assignee must apply in his own name.
    Aug. 17.
    This was an application by the defendant to stay all proceedings, in a suit upon a creditor’s bill, until the costs of a former suit, commenced before a vice chancellor for the same cause, were paid. It appeared that, upon a demurrer to the former bill, the complainant entered a common order to dismiss his bill upon payment of costs; and then sent to the defendant’s solicitor a receipt, for the amount of such costs, to be applied on the judgment which the complainant held against him. The defendant refused to consent to such application; and assigned the costs absolutely to his solicitors in payment for their services.

      J. H. Power, for the complainant.

      O. L. Barbour, for the defendant.
   The Chancellor.

The defendant’s solicitors have mistaken the remedy in this case to procure the payment of the costs of the former suit. The complainant may unquestionably dismiss his bill at any time before decree, upon payment of costs. (2 Daniel’s Ch. Pr. 355; Bossard v. Lester,2 M’Cord’s Ch. Rep. 419.) And the court will grant the motion as a matter of course, upon a proper application. The order in such cases is that the bill be dismissed, upon payment of the costs of the defendant to be taxed ; or that the complainant have leave to dismiss his bill, upon the payment of costs. But in neither case is the suit out of court until the costs are actually paid, or at least until they have been tendered to the defendant’s solicitor. Neither can such costs be offset without the special permission of the court for that purpose. The proper remedy of the defendant, therefore, in case the complainant neglects or refuses to pay the costs after they have been taxed and demanded, is to proceed as for a contempt. Or lie may consider the suit as still pending and proceed accordingly. And if the complainant files a new bill for the same cause of action, without paying the costs in pursuance of the conditional order to dismiss upon payment of costs, the defendant may plead the pendency of the first suit, as a bar to the commencement of the second before the order to discontinue had become absolute, by the payment of the costs.

Again ; the defendant shows, in this case, that he has no interest in this application in its present form, as he has made an absolute assignment of the costs of the former suit to his solicitor. And it does not appear that he has guaranteed the collection thereof. The motion must, therefore, he denied; and the defendant must be left to set up the pendency of the original suit, either by his plea or answer.


author: The Chancello».

text:
    The Sea Insurance Company vs. Day and others.
    Leave to filo a replication to an answer, after the time limited by the rules has expired, will not be granted unless the court is satisfied that injustice will be done by compelling the complainant to bring his cause to a hearing upon bill and answer.
    Where the complainant is not in contempt, he may, in any stage of the pro. ccedings, before a decree or decretal order has been made affecting the rights of the parties, dismiss his bill upon payment of costs. And such a dismissal is no bar to another suit for the same cause.
    August 17.
    This was an application on the part of the receivers of the Sea Insurance Company, who were proceeding in this suit as authorized by the statute in the name of the corporation, for leave to file a replication to the answer of D. M. Day, the original defendant. The bill was filed by the Sea Insurance Company to foreclose a mortgage given by Day and wife to the corporation. To that bill Day put in an answer, in May 1838, setting up the defence of usury ; which answer, however, was put in without oath. The complainants’ solicitor neglected to file a replication for about thirteen months after the receipt of the answer ; at which time the solicitor of Day refused to receive the replication, on account of the delay which had taken place. Day died shortly afterwards, and the complainants’ solicitor also died. The receivers thereupon employed a new solicitor and proceeded and revived the suit against the widow and heirs of Day. They then applied for leave to file a replication to the answer of the original defendant.

      E. H. Kimball, for the complainants.

      S. J. Cowen, for the defendants.
   The Chancello».

It is evident from the papers in this cause that the replication was omitted to be filed by the gross negligence of the complainants’ solicitor, in violation of his duty to his clients ; who, by his death, have now no remedy against him. It is not a matter of course, however, to permit the filing of a replication after the expiration of the time limited by the rules of the court for that purpose. But the court must be satisfied there is a probability that injustice will be done if the complainant is compelled to bring his cause to a hearing upon bill and answer. (Kane v. Van Vranken, 5 Paige’s Rep. 63.) Where an answer is put in upon oath, denying any material allegation in the bill, the complainant must show that the bill was verified by oath ; or he must state, in his affidavit in support of his application, that he believes and expects to be able to prove that the allegations, denied or put in issue by the answer, are true in point of fact. And if new matters are set up in a sworn answer, as a defence to the suit, the complainant should state upon oath, that the matters thus set up in the answer, or some material parts thereof, are not in fact true; or at least that he believes them to be untruly stated. In the present case, therefore, if it had appeared that the answer of Day the original defendant was verified by oath, I should have required the affidavit of the officer or agent of the corporation, by whom the mortgage was taken, contradicting the allegation of usury contained in such answer.

In this case, however, it does not appear that the answer was on oath ; and in the present situation of the cause, even

if the answer was sworn to, the complainants would have the legal right to dismiss their bill, upon payment of costs, and to commence de novo. For it is a settled rule of this court that the complainant may dismiss his bill, upon pay-

ment of costs, in any stage of the proceedings before a decree or decretal order has been made affecting the rights of the parties, if he is not in contempt. And such a dismissal is no bar to another suit for the same cause. (Carrington v. Holley, 1 Dickens, 280. 2 Daniels’ Ch. Prac. 175, 355. Smith, adm. v. Smith, 2 Blackf. Rep. 232.) There does not, therefore, appear to be any good reason for refusing this application, and' turning the complainants around to file a new bill, when there is nothing to induce the court to suppose the justice of the case is with the defendants.

The application for leave to file a replication is granted, upon payment of the costs of opposing this motion ; which are fixed at ten dollars.


text:
    Bank of Monroe vs. Keeler & Durant.
    In suits upon creditors’ bills the court uniformly directs the reference to a master of the county in which the defendant resides, to receive the assign, ment of his property and to take his examination, unless there are special circumstances in the case rendering a reference to a master in some other county necessary or proper.
    The defendant in such a suit should not be compelled to attend before a distant master, for the purpose of assigning his property to the receiver and submitting to such examination as may be necessary, to ascertain what properly is to be delivered up, and producing his books and papers.
    The 191st rule was intended to relieve the defendant from the burden of making a disclosure of his property at his own costs, and from the cxpenec of employing a solicitor for that purpose, where, by the operation of the injunction, he is deprived of the means of paying the solicitor for his services.

      August 17.
    This was an appeal from a decision of the vice chancel-l°i' of the eighth circuit. The bill was filed against the appellants, Keeler and Durant, who resided in Albany, as judgment debtors, to obtain satisfaction of the complainants’ judgment out of their property, which could not be reached by execution. The appellants having entered an appearance, gave a stipulation, in conformity to the 191st rule of the court of chancery, that an order might be entered to take the bill as confessed, and for a reference to appoint a receiver to take the defendants’ examinations upon oath. Upon this stipulation the complainants’ solicitor, who lived at Rochester, applied to the vice chancellor and obtained an order referring it to a master residing in Rochester to appoint a receiver ; and directing the appellants to appear before such master and assign their property to the receiver on oath, and to produce their books and papers and submit to such examination as the master should direct, &c. Under this order of reference, the appellants were summoned to attend before the master at Rochester, upon the appointment of the receiver, and to assign and deliver over their property to such receiver on oath, &c. When the summons was sent to the solicitor of the appellants, it was accompanied with a note from the solicitor of the adverse party, stating that he proposed to receive the affidavit of the defendants as to any other bill pending against them, and also to receive their affidavit as to their property, and in case he should be dissatisfied with the disclosures thus made, to have their further examination before some master' in Albany. The solicitor for the appellants declined this arrangement, as it would subject his clients to great inconvenience and expense, and require their attendance at Rochester. And he thereupon applied to the vice chancellor to change the reference to a master at Albany, which motion was denied with costs.

      Oh's Allen, for the appellants.

      J. Rhoades, for the respondents.
   The Chancellor.

There is no doubt that the complainants’ solicitor acted in perfect good faith in obtaining this order, and without any intention of subjecting these defendants to unnecessary expense. But both he and the vice chancellor appear to have misapprehended the intention of the 191st rule of this court. The settled practice of this court, in these creditors’ bills, is not to compel the defendants, whose property is all placed beyond his control by the injunction, to attend a great distance from home, and on expense, for the purpose of assigning his property to the receiver and submitting to such examination as may be necessary to ascertain what property is to be delivered up, and to produce his books and papers. And for that reason the court uniformly directs the reference to a master near the residence of the defendants, unless there are some special circumstances in the case rendering a reference to a master in some other connty necessary or proper. But, in addition to this, the object of the 191st rule was to save the defendant the expense of making a disclosure of his property at his own costs, and of employing a solicitor for that purpose, while by the operation of the injunction he had no means of paying such solicitor for his services. And if the defendant is compelled to employ a solicitor to draw affidavits, to be sent to a master at a distance, containing a statement of his property and other matters required of him under the usual order of reference, as a substitute for an answer, or for a personal examination before the master at the expense of the complainant, he will lose the whole benefit intended to be secured to him by that rule. The proposition of the solicitor for the complainants in this case, therefore, was not equally beneficial to the appellants as an order of reference in the usual form, referring it to a master at the place of their residence. For they would, under that stipulation, have been compelled to employ and pay a solicitor to prepare their statement on oath in relation to the matters contained in the bill, and to attend before the master to assign and deliver over their property and books and papers, under his direction. At least there was no proposition that the receiver should attend at Albany to receive the assignment, &c., instead of compelling (he defendants to attend before the master for the purpose of taking his directions as to the execution of the assignment and the delivery of the property. Instead of denying the motion therefore, the order should have been modified by directing the reference to a master in the county where the appellants resided ; or by striking out that part of the order which required the defendants to attend before the master for any purpose, and authorizing them to execute such an assignment as should be settled by the master, and deliver it to the agent to be appointed by the receiver at Albany to receive the same and to take the delivery of the assigned property.

The order appealed from must be modified accordingly. But under the circumstances of this case neither party is to have costs as against the other, either on this appeal or upon the application to the vice chancellor.

Proceedings remitted to vice chancellor.


text:
    Sprague, President, &c. vs. Jones & Graham.
    Pleadings in chancery mast be actnally filed, as well as served, within the time required by the rules of the court. And where a pleading is served upon the adverse party, or his solicitor, without having been filed, such service is irregular.
    Aug. 17.
    This was an appeal by the defendants from a decision of the vice chancellor of the eighth circuit, denying their application to set aside an order taking the bill as confessed against them. The complainant’s solicitor lived in Rochester, and the solicitor for the defendants in the city of New-York. The time for answering expired on the 11th of March; on which day the answer of the defendants was served by depositing it in the post office at New-York, directed to the complainant’s solicitor at Rochester, and paying the postage thereon, as authorized by the 14th rule of this court. The original answer was also mailed at New-York, on the 8th of March, directed to the clerk of this court in the eighth circuit, but was not in fact received and filed by him until after the time for answering had expired. And the complainant’s solicitor not having received the answer sent by mail, entered an order to take the bill as confessed, and for a reference to a master to compute the amount due on the bond and mortgage to the complainant; which order he subsequently insisted was regularly entered, and refused to w'aive the same.

      L. H. Sandford, for the appellants.

      W. C. Noyes, for the respondents.
   The Chancellor.

The answer, if true, contains a valid defence to this suit, as it alleges that there is no interest due upon the bond and mortgage, and that the principal has not become due which would have been the case if default had been made in the payment of the interest for the space of thirty days after such interest became payable from time to time. But as the answer was put in without oath, and there was no affidavit of the truth thereof, upon the hearing of the motion before the vice chancellor, the defendants were not entitled to have the default opened, as a matter of favor, on the ground that they had a valid defence to the suit upon the merits. The only question on this appeal therefore is, whether the order to take the bill as confessed was technically regular.

By the practice of this court, pleadings must be actually filed, as well as served, within the time allowed by the rules of the court, or the service will be irregular. In courts of law, the filing of pleadings is a matter of form merely ; but in this court it is essential to the rights of the parties that the pleadings should be actually filed, as the papers thus filed are to form an essential part of the record, upon the enrolment of the decree. And in the case of a sworn bill or answer it is also important that the original should be filed, as well as that a copy thereof should be served upon the solicitor of the adverse party. For without the production of such original no indictment for perjury could be sustained, although it could be proved by two or more witnesses that the allegations contained in the copy of the bill or answer served on the solicitor of the adverse party were false. This court therefore cannot sanction the practice of serving copies of pleadings upon the adverse party, the originals of which pleadings have not been duly filed.

In this case, the service of the answer at New-York, by putting it into - the mail and paying the postage thereon, would have been a good service under the 14th rule, as amended in June, 1840, if the original answer had in fact been filed within the forty days allowed for putting in the answer of the defendants. And an order to take the bill as confessed would have been irregular in that case, although that order was entered before the complainant’s solicitor had received the letter enclosing the copy of the answer. But as the answer was not filed as well as served within the time allowed by the rules of the court for putting in the defendants’ answer, the order which they subsequently applied to set aside was technically regular ; and the vice chancellor was right in denying their application.

The order appealed from must therefore be affirmed with costs; but without prejudice to the right of the defendants to renew the application to the vice chancellor, upon further affidavits or papers showing that they have a meritorious defence to this suit, or to some material part of the complainants’ demand, which they can not avail themselves of upon the bill taken as confessed against them.


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    Grant and wife vs. Van Schoonhoven and others.
    In the appointment of the guardian ad litem for an infant defendant, the person should be selected who will be most likely to protect the rights of the infant. And where the father or other natural guardian of the infant defendant is complainant in the suit., the next nearest relative of the infant is entitled to be heard on the selection of a proper guardian ad litom, to defend the suit.
    To authorize the entry of an order for the appointment of a guardian ad litem of an infant defendant, upon the certificate of a vice chancellor or special master, under the provisions of the 146th rule, the petition must distinctly show that the infant has boon served with process; or that he has been proceeded against as an absentee, and that an order for his appearance has been obtained and served, or published.
    Personshaving adverse, or conflicting interests in relation to the subject matter of the litigation, ought not to be joined as complainants in the suit. And the husband cannot obtain a decree depriving his wife of an estate held in trust for her separate use, upon a bill against her trustees in which she is joined with him as a complainant. But to obtain such a decree she should be made a defendant in the suit.
    A bill filed by a husband in the name of himself and wife, is considered as his bill merely And where a bill is filed by the husband and wife in relation to her separate estate, in which the husband has no common interest with her, the defendants, if they think proper to do so, may insist that the wife shall prosecute her suit by her next friend; so that they may not he subjected to the cxpence of further liligation, if they succeed in their defence to such suit.
    August 17.
    This was a petition by the grandfather of the infant defendants, on their behalf, to set aside an appointment of a guardian ad litem, made by a master. The bill was filed by the father and the mother of the infants, against them and the trustees under a conveyance for their benefit, to set aside such conveyance. . The petitioner applied to the chancellor, upon a petition showing that the father of the infants was proceeding in hostility to them, and procured an order for the appointment of the solicitor who had been employed by him to protect the rights of the infants in the litigation, to be their guardian ad litem. But before the entry of the order on that application, McCoun, who was no way related to the infants, applied to a master and procured another person to be appointed the guardian ad litem of the infants; who immediately put in a general answer for them. It appeared that such application was made to the master without the knowledge of any of the relatives or friends of the infant, that the papers were prepared by the solicitor for the complainants, or his law partner, and that McCoun, who made the application, was a creditor of the complainant, and as such had an interest to have the conveyance set aside.

      G. W. Kirtland, for the petitioner.

      Cyrus Stevens, for the complainants.
   The Chancellor.

In the appointment of a guardian ad litem for infant defendants, the court should always select such person for that purpose as will be most likely to protect the rights of the infants. And in this case, where the natural guardian and protector of his children is himself the complainant and prosecuting his suit against them, their grandfather, who is their next nearest relative, and who has assumed the burthen of their defence, is entitled to he heard in the selection of a guardian ad litem for that purpose, in whom he has confidence and with whom he can communicate freely on the subject. If the appointment in this case was therefore strictly regular,, it would be almost a matter of course to grant the prayer of this petition, even without the advice of the counsel employed for the defence that it is of importance to the interests of the infants.

The appointment by the master, moreover, was not strictly regular, independent of the objection that the person who applied for the appointment was rather the friend of the complainant, and interested in his success, than the friend of the infants and solicitous that they should succeed in their defence. To authorize the appointment of a guardian ad litem of an infant defendant, by an order of course, upon the certificate of a vice chancellor or special master, under the provisions of the 146th rule, the petition should distinctly show an authority to make the appointment on the ground that the infant had been served with process of subposna to appear in the suit, or that he had been proceeded against as an absentee, and an order obtained for his appearance under the statute. But the petition, upon which the common order was obtained in this case, merely stated that a bill had been filed against the infant defendants, who were residents of the state of Vermont; without showing that they had been served with process in this state, or that an order for their appearance as absentees had been obtained, and served or published, so as to authorize the master to nominate a guardian ad litem for them.

It may also be necessary for the infants to put in a special answer, in this case, for the purpose of protecting their rights and putting in issue facts material to their defence. And I am inclined to think there is sufficient on the papers before me to show that a special answer should have been put in, for the purpose of raising the objection that these complainants are improperly joined and are not before the court in such a manner as to authorize a final decree disposing of the case upon its merits.

Persona having adverse or conflicting interests in reference to the subject matter of the litigation, ought not to join as complainants in the suit. (See Davies v. Quarterman, 5 Land. Jurist, 93. J And where s bill is filed by the husband, in the name of himself and wife, it is considered the bill of the husband merely • so that the decree made in such suit is not binding upon the wife in any future litigation. (Reeve v. Dalby, 2 Sim. & Stu. Rep. 464. Wake v. Parker, 2 Keen’s Rep. 73. England v. Downs, 1 Beav. Rep. 96. Owden v. Campbell, 8 Sim. Rep. 551.) For that reason where a bill is filed by the husband and wife in regard to her separate estate, in which the husband has no common interest with her, the defendants, if they think proper to do so, may insist that the wife shall prosecute in her name by her next friend ; so that the defendant may not be subjected to the expense of a further litigation in case they succeed in their defence to that suit. On the other hand, if the husband seeks to deprive his wife of an estate held in trust for her separate use, he cannot obtain a decree for that purpose by joining her as a complainant with himself in his suit against her trustees; but should make her a party defendant in such suit.

Here, so far as I can understand the case upon the papers before me, the father of these infant defendants has filed his bill to set aside a conveyance of property to trustees, for the separate use of his wife for life, with remainder to her children. If so, she has an interest adverse to him in the subject matter of this litigation, and should have been made a defendant in the suit instead of a complainant. And the infants should be permitted to put in a special answer to enable their guardian ad litem to insist upon this objection, for the purpose of compelling the complainant to amend his bill accordingly ; so that a final decree, in the cause may be made at the hearing, upon the merits, instead of having the bill dismissed upon this matter of form merely, and thereby subjecting the infants to the expense of making their defence a second time.

The guardian appointed upon the certificate of the master, under the defective petition, must therefore be discharged ; and the guardian ad litem, heretofore appointed by the special order of the court, must be permitted to put in a new answer within the usual time after service of a copj of the complainant’s bill upon him.


text:
    The American Insurance Company vs. Oakley and others.
    Where property is regularly advertised and fairly sold by a master, a sale will not be set aside, and a resale directed, for the benefit of parties interested in the proceeds of the sale, to protect them against the consequences of their own negligence, where they are adults and competent to protect their own rights on the sale.
    And where the sale is in the usual manner, and the purchase is made by a stranger to the suit, mere inadequacy of price is not a sufficient ground for depriving the vendee of the benefit of his purchase, unless the inadequacy is so great as to be evidence of fraud or unfairness in the sale.
    But tlic parties interested in the properly to be sold, have a right to expect that it will bo put up and sold in the Usual manner, and in a way to produce a fair competition among the persons attending the sale to bid upon the property. And where the property has been sacrificed, by the neglect or mistake of the master to comply with the legal requirements on such sale, or by his having improperly put up for sale several lots together, which should have been sold separately, the parties injured are entitled to a re. sale; or to such other relief as can be given without doing injustice to a bona fide purchaser of the premises at the sale.
    Where property consists of separate arid disti. ct parcels which can be enjoyed by the owners thereof separately without diminishing their value, it is the duty of the officer who sells the same under a decree of the court to sell in parcels, except in very special cases.
    The last clause of the 138th rule was only intended to provide for special cases; where it is evident that the several parcels of land, from their peculiar location in reference to each other, will be more valuable if owned by one person than if owned by different individuals in severalty; or where, in consequence of some prior incumbrance upon all the parcels, purchasers will not be likely to bid upon a portion only of the property, subject to such a general incumbrance.
    Aug. 17.
    This was an appeal by the Seneca County Bank from a decision of the vice chancellor of the first circuit, denying the appellants’ application for a resale of premises which had been sold under a decree of foreclosure. The mortgaged premises originally belonged to the defendant Oakley, who mortgaged the same to the complainants to secure a loan of $18,000 with interest. The foreclosure suit was commenced in July, 1839, and a decree was obtained therein in April, 1841. Pending the suit the appellants, who were not parties to the bill, recovered a judgment of about $12,000 against Oakley, which became a lien upon the mortgaged premises. There were also other judgments against him, prior to that of the appellants, which were also liens. And the premises having been sold under prior judgments, in February, 1840, the petitioners redeemed the premises from such sale, as subsequent judgment creditors, and thereby became entitled to the rights of the purchaser in the surplus moneys, upon the mortgage sale, after paying the complainants’ debt and costs.
    The premises consisted of two narrow lots of ground fronting on Water-street, in the city of New-York, with two houses thereon, and of a lot and storehouse in the rear of these lots, with an alley leading thereto from Water-street j and of two other lots, of greater width, with buildings thereon, upon Front-street. And the whole were put up and sold together, by the master, and were struck off to the respondent C. V. S. Roosevelt, for $21,100 ; when, as the affidavits in support of the application stated, the premises were worth and would have brought $10,000 more if the same had been sold in parcels. The appellants not being parties to the foreclosure suit, which was commenced before the recovery cf their judgment against the mortgagor, did not know of the existence of that suit, or that the premises were advertised by the master, until after the sale. But as soon as they heard of the sale, and before the purchase money was paid, or the master’s deed given, they caused an application to be made to the purchaser to relinquish his purchase, and offered to pay him his expenses and charges, and the interest upon the amount of his bid. He declined the offer and stated that he had purchased as trustee and was not at liberty to relinquish the purchase.

      O. Meads, for the appellants.

      C. J. Be Witt & J. Blunt, for the respondents.
   The Chancellor.

The purchaser in this case unquestionably bought the premises in good faith, and is therefore entitled to be protected from loss if a resale is directed. And if the premises had been put up and sold in parcels, I think it is not a case in which the court ought to have interfered with the sale ; although the property was only sold for about two-thirds of its supposed value. This court does not usually interfere by directing a resale, for the benefit of the parties interested in the proceeds of a master’s sale of real estate, to protect them against the consequences of their own negligence, where they are adults and perfectly competent to protect their own rights on the sale. And if the property is duly advertised and fairly sold by the master, in the usual manner, to a stranger to the suit, mere inadequacy of price is not a sufficient ground for depriving the vendee of the benefit of his purchase ; unless the inadequacy is so great as to be evidence of fraud or unfairness in the sale.

In the present case it is true the appellants, or rather their officers and agents, were ignorant of the decree of foreclosure, or that any suit had been instituted to foreclose the mortgage on the premises upon which they had obtained a lien subsequent to the filing of the complainants’ bill. And of course they were not aware that the premises had been advertised for sale under such decree. But as the usual notice of the pendency of the foreclosure suit had been filed in the proper office two or three months before the recovery of their judgment, they could, by proper diligence, have ascertained not only the amount of prior liens upon the property of their debtor, but also the proceedings which were taking place to enforce those liens against his real estate. Their ignorance of the. fact that the property was to be sold under the decree of foreclosure, and of the time and place appointed for such sale, arose therefore from their own negligence, or the negligence of their officers and agents, and not from mistake or accident, against which this court should be called upon to interfere, where the sale was properly conducted.

Parties interested, however, even where they neglect to attend the master’s sale, have a right to expect, and may reasonably presume, that the property will be put up and sold by the master in the usual manner; and in such a way as to produce a fair competition among those persons who do attend the sale for the purpose of bidding upon the property. And where it appears that the property has been sacrificed, by the neglect or mistake of the master to comply with the legal requirements on such sale, or by his having improperly put up various lots together, when they should have been sold separately to have produced a fair competition among the bidders, the parties injured thereby are entitled to relief, by a resale or otherwise, so far as relief can be given without doing positive injustice to bona fide purchasers of the premises at the sale.

In the case of Woods v. Monell (1 John. Ch. Rep. 505,) Chancellor Kent held that where the premises to be sold consisted of several parcels, distinctly marked for separate and distinct enjoyment, it was, as a general rule, the duty of the officer who was to make the sale to sell in parcels, and not the whole premises in one entire sale. He says, to sell the parcels separately is the best for the interests of all the parties concerned. The property will produce more in that way, because it will accommodate a greater number of bidders, and tends to prevent obvious speculations upon the distresses of the debtor. In conformity with this principle, the revised statutes contain an express provision that upon sales of real estate upon execution, by the sheriff, where the property to be sold consists of several known lots, tracts, or parcels, such lots, tracts, or parcels shall be separately exposed for sale. (2 R. S. 369, § 38.) The 138th rale of this court requires the master to sell in the same manner, where real estate is to be sold under a decree in chancery, unless he is otherwise specially directed by the court. And thelast clause of that rule, which authorizes him to sell in one parcel only, where he is satisfied that the property will produce a greater price if sold together, was only intended to provide for very special cases; where, from the peculiar situation of the different parcels wdth respect to each other, it is evident that the several parcels if owned by one person, and kept together, will be much more Valuable, than the aggregate values of the several parcels could be to different individuals if owned by them in severalty ; or where, in consequence of some prior incumbrance upon the whole of the premises, purchasers would be unwilling to purchase only a portion of the property, subject to such Encumbrance.

I have not been able to discover any thing in the sitúa» tion of the property in the present case to render it necessary or proper to sell the whole of these lots and buildings together. The two lots upon Water-street were perhaps too narrow for the purpose of making two building lots. It might, therefore, have been a proper exercise of discretion, on the part of the master, to sell those two lots together in one parcel j making a lot of twenty-eight feet front-upon that street. But the two houses and lots on Front-street were in no way connected with these lots on Water-street. And each lot was of sufficient width either for a dwelling house or a store, and should therefore have been sold separately. And the storehouse and the lot on which it stands, together with the alley leading thereto from Water-street, should have been sold as another distinct parcel of the premises.

The affidavits annexed to the petition state the value of the property at $10,000 more than it was knocked down to the complainant for, as one entire bid for the whole; and the belief of the deponents that it would have brought at least $30,000 if sold in separate parcels. The master undoubtedly acted upon the supposition that it was the wish of the mortgagor that the property should be sold together ; and as the solicitor for the complainants made no objection he put it up in that manner without sufficient examination. But it now turns out that the interest of the mortgagor in the equity of redemption had been sold on execution, and that the twelve months allowed to him to redeem had expired some time previous to the decree of foreclosure. He therefore had no interest in the sale, except to have the property bring the amount of the mortgage and costs, so that he would not be personally liable for the deficiency. The rights of the appellants were probably seriously affected by this mistake of the master in putting up the property together, instead of selling it in parcels. For these reasons I think the vice chancellor should have directed a resale of the property, in parcels, making a proper provision for the indemnity of the former purchaser from loss.

The order appealed from must therefore be reversed,

¡And as the appellants offer to bid $5000 more for the ¡premises than they were before sold for; upon their de- ; positing that sum with the master, within twenty days, to be applied to make up any deficiency, which may arise upon the resale, either in paying the amount due to the complainants for their debt and costs, or in paying and indemnifying the purchaser for all damages, costs, and expenses to which he may be entitled under this decision, the premises are to be resold, upon a notice of three weeks. And out of the money thus deposited with the master, the purchaser must be paid all his costs and expenses, including reasonable counsel fees for examining the title, to be taxed and allowed by the vice chancellor. He must also be paid the interest upon the deposit money paid to the master, which deposit is to be returned to him, and interest upon the residue of the purchase money while it has remained unproductive in his hands, and down to the time when he shall have notice that the $5000 is deposited with the master by the appellants. And the proceedings are to be remitted to the vice chancellor to carry into effect this decision.


text:
    Macomb vs. Miller.
    Where the owner of real estate, who died previous to the adoption of the revised statutes, devised the same to his daughter and only heir, during her life, and no longer, and after her death to her child or children if she should have any, and to their heirs and assigns forever ; and by a subsequent clause of his will declared his will to be that in case his daughter should die and leave no lawful issue, his executors should sell his estate and distribute the proceeds thereof among certain collateral relatives; and the daughter of the testator afterwards married and had one child, who died after the death of its father but in the lifetime of its mother; Held, that the child of the daughter, upon its birth, became siezed of an absolute remainder in fee in the property, subject to open and let in after bora children; and that the limitation over to the collateral relatives of the testator was void, being limited upon an indefinite failure of issue of the daughter.
    And it being admitted that the daughter of the testator was physically in» capable of having any other children ; Held, that she had become entitled to an absolute estate in fee in the premises devised, by the merger of her life estate, in the remainder in fee to which she was entitled as the heir at law of her deceased child.
    August 17.
    This was an amicable suit for the specific performance of a contract for the purchase of lands. And the bill was filed for the sole purpose of obtaining a decision of the court upon the question whether the complainant, under the will of her father and by the death of her only child without issue, was the owner in fee simple of certain premises in New-York ; being the undivided moiety of five lots on Catharine-street, and of a house and lot on Cherry-street. The facts upon which the title of the complainant to the premises in question depended, as stated in the bill and admitted by the demurrer, were as follows ;
    In 1798, Elijah Pell died seized of the premises in question, and of other property in New-York, in fee; leaving the complainant, then about thirteen years of age, his only child and heir. By his will, which was executed in due form to pass his real and personal estate, he bequeathed to the complainant his furniture, bedding, and plate, and a pecuniary legacy of ¿63000 to be paid to her at eighteen or on the day of her marriage; and devised to her a house and lot and some other property in fee. He also devised to her the use and rents of certain other real estate, including the premises in question, for and during her life, and no longer. And after her death he gave and devised such real estate unto her child or children, in case she should have any, and if more than one, to be equally divided between them share and share alike, to them, their heirs and assigns for ever in fee simple. The residue of his estate and his outstanding debts the executors were, by the will, directed to collect and convert into cash ; and to invest the same in the stocks of certain specified banks, and to pay to the complainant the income thereof for and during her life, and no longer. And after her death he gave such stocks to her child, or children if more than one, to be equally divided between them share and share alike, and to their heirs and assigns forever. By a subsequent clause of the will the testator declared his will to be that in case his daughter, the complainant, should die and leave no lawful issue, his executors, or the survivor or survivors of them, should sell his real estate, and the bank stocks in which the personal estate should have been invested, and distribute the proceeds among certain collateral relatives of the testator specified in his will. The will also contained a residuary clause whereby the testator gave all the remainder of his estate, not before disposed of, to the children of his five sisters to be equally divided between them, with the exception of one child who was designated in the will.
    The complainant, about eight years after the death of her father, married R. Macomb, by whom she had only one child, Julia Macomb, who was born in 1809 and died in 1831, intestate and without issue ; and the husband of the complainant also died before his daughter previous to the . filing of the bill in this cause. The complainant therefore had no issue living at that time. And the counsel for the defendant, upon the hearing of the cause upon bill and demurrer, agreed to admit that the complainant was then about fifty-five years of age, and that it was physically impossible for her to have any other children after that time ; and that the bill should be amended accordingly, so as to contain an allegation to that effect.

      J. Blunt, for the complainant.
    J. Smith, for the defendant.
   The Chancellor.

The whole difficulty in sustaining the complainant’s claim to an absolute estate in fee simple in the premises in question in this suit, arises from the executory'limitation over of the proceeds of the testator’s real estate to his collateral relatives, in case his daughter should die and leave no lawful issue. The previous clauses of the will gave to the complainant an estate for life in this portion of the testator’s property, with remainder in fee to her children in case she should have any. And he left the estate to pass to the children of his sisters, after the termination of such life estate, under the residuary clause of the will, in case the complainant should happen to die unmarried or without having had any issue. The effect of the will, therefore, independent of the clause in question, or if the limitation over of the proceeds of the property contained in that clause is void by being too remote, in the events which have occurred, would be to vest the remainder in fee in the daughter of the complainant immediately upon the birth of that daughter in 1809, subject to open and let in any after born children as tenants in common in such remainder. (Hannan v. Osborn, 4 Paige’s Rep. 336.) For a remainder is vested in interest, so as to be transmissible to the heirs or legal representatives of the remainder-man, as soon as he is in esse and is ascertained as the person entitled to the remainder; and who will have an immediate and absolute right to an estate in possession in the premises upon the termination of the precedent estate or estates. (5 Paige’s Rep. 466.) If the limitation over in this case is void, therefore, as depending upon an indefinite failure of issue, the daughter of the complainant, upon her birth in 1809, became immediately entitled to an absolute vested interest in the remainder in fee simple ; subject, however, to open and let in after born children. And as it is now agreed and admitted by the parties that the birth of any other children has become physically impossible, it follows that the daughter of the complainant, at the time of her death in July 1831, was the absolute owner of the premises in question, subject only to the life estate of her mother therein. And as her father was then dead, that interest descended to her mother, as her only heir at law, under the provisions of the sixth section of the title of the revised statutes relative to the descent of real property. (1 R. S. 162.)

The construction of the clause of the will which limits the proceeds of the testator’s estate over to his collateral relatives, in case his daughter should die and leave no lawful issue, must depend upon the law as it existed previous to the adoption of the revised statutes. For the testator died in 1798, and the statutory provision on this subject is not declaratory of the law as it previously existed, but is the adoption of a new rule for the government of future cases. (1 R. S. 724, § 22.) And upon a full examination of this case I have arrived at the conclusion, that there is nothing in this will to take it out of the technical rule of construction, which existed in this state and in England previous to the change made by the revised statutes, that a limitation over of real estate, in the event of the death of the previous taker without issue, or without leaving issue, meant an indefinite failure of issue and not a failure of issue at the time of the death of the first taker. The American as well as the English cases on this subject are collected and commented upon by Chancellor Kent with his usual ability, in his commentaries on American law, (4 Kent's Com. 271;) and it is not necessary, therefore, to refer to them here more particularly. He says, anti such was unquestionably.the law on the subject both here and in England in respect to limitations of interests in real estate, previous to 1830, “If an executory devise be limited to take effect after a dying without heirs, or without issue, or on failure of issue, the limitation is held to be void, because the contingency is too remote, as it is not to take place until after an indefinite failure of issue.” The decision of the court for the correction of errors in the case of Patterson v. Ellis’ executors, (11 Wend. 259,) settled the question as to the construction of the words in a will, “ without leaving lawful issue.” And I see nothing in the devise in the present case which can possibly take it out of the operation of that decision, either as to the real or the personal estate of the testator. The complainant, therefore, has an absolute and indefeasible estate of inheritance in fee simple in the premises in question, by the union of the life estate, devised to her by the will of her father, with the remainder in fee to which she has become entitled as the heir at law of her daughter.

There being no substantial objection to the title, the complainant is entitled to a decree for the specific performance of the contract set forth in her bill and admitted by the answer. But under the circumstances of this case I shall not charge the defendant with costs.

       Affirmed, on appeal to the court for the correction of errors, in December, 1841. (See 26 Wendell's Reports, 229.)


text:
    Hughes vs. Bloomer and others.
    Where a defendant by mistake or under a misapprehension of his rights, or of the facts of the case, makes an admission in his answer which is inconsistent with the truth, the court will permit him to file a supplemental answer, correcting the mistake, to enable him to produce proof to show that the fact is otherwise than is admitted by him in his original answer.
    But the court will not permit such supplemental answer to be filed, unless it is evident that there has actually been a mistake in the original answer, and that the general justice and equity of the case requires a supplemental answer. The practice of amending the original answer on file is discontinued ; and the present practice of the court of chancery, where a proper case is made out, is to permit the defendant to file a supplemental answer.
    Where the court permits a supplemental answer to be filed after the parties have commenced taking testimony in the cause, it is proper to allow the testimony already taken to be used upon the hearing, without a re-examination of the witnesses to the same facts; but giving the parties an opportunity to give further proof as to the new matters put in issue by the supplemental answer.
    A defendant who is allowed to put in a supplemental answer to correct a mistake in his original answer, should be required to pay the extra costs to which the adverse party has been subjected by his neglect to put in s proper answer in the first instance.
    August 17.
    This was an appeal by the complainants from an order of the vice chancellor of the first circuit, allowing the defendant A. Birkbeck, to file a supplemental answer. The bill was filed by a judgment creditor of E. Bloomer, after the return of an execution unsatisfied, to reach property of the latter alleged to have been fraudulently assigned to the defendant Moon ; and Birkbeck and Hegeman were made defendants as subsequent assignees of Moon. Hegeman, Moon and Birkbeck put in a joint and several answer, in which it was admitted, among other things, that the property originally assigned by Bloomer to Moon had been subsequently assigned by Moon to Hegeman and Birkbeck, and that they had assumed the control and 'disposition of such property. The order appealed from was founded upon the affidavit of Birkbeck, supported by others who were his neighbors and well acquainted with him, that he was an unlearned but industrious mechanic, unacquainted with legal forms and proceedings ; that the answer, which was very long, had been drawn by the solicitor of and under the direction of his co-defendants ; and that he had put it in under a misapprehension of the subject and effect of the admissions therein contained. The cause was in readiness for hearing, upon pleadings and proofs, at the time notice of the application was served on the complainant’s solicitor. And the vice chancellor allowed a supplemental answer to be filed upon payment of the costs of noticing the cause for hearing.

      J. Rhoades, for the appellant.

      W. Kent <§' B. _D. Silliman, for the respondent.
   The Chancellor.

The practice of amending the answer of a defendant, which prevailed previous to the time of Lord Thurlow, has been discontinued in this country, as well as in England. The modern practice is, upon a proper case shown to the court, to permit the defendant to file a supplemental answer; thus giving the complainant the benefit of the original answer, with the explanations or denials contained in the supplemental answer. Under such an answer if the defendant, by mistake or misapprehension of the facts of the case, or of his rights, has made an admission in his original answer, which is inconsistent wdth the truth, he will have an opportunity, by proofs, to show the fact was otherwise, and thus relieve himself from the consequences of his mistake. Although the court-acts with great caution in allowing a supplemental answer to be filed, and never permits it except where it is evident there has been an actual mistake, and where the general equity and justice of the case requires it, I think, under the peculiar circumstances of this case, the vice chancellor was right in permitting the respondent to correct the erroneous admissions and statements in his former answer. Even if the counsel of Birkbeck are wrong in supposing that Moon’s assignment was not broad enough to reach the property which Bloomer is alleged to have assigned to Moon in fraud of the complainant, if Birkbeck was ignorant of the assignment to Moon, and only supposed he was accepting an assignment of the property which originally belonged to the latter, for the benefit of his creditors, he may not be liable for the property of Bloomer which never was in fact in the possession of or under the control of Moon j provided the respondent never has exercised any ownership or control over that property, nor authorized any other person to do so for him. On the other hand, if the respondent has allowed his name to be used for the purpose of defrauding the creditors of Bioomer, and has accepted an assignment from Moon containing a transfer of the legal title to property which had been fraudulently assigned to the latter, the fact that the respondent has not actually used the property himself, but has merely suffered it to be used or squandered by his co-assignee, or by Bloomer or Moon, will not protect him from liability to account for its value to the creditors of Bloomer.

Upon the facts presented to the vice chancellor, the order for leave to file a supplemental answer correcting the erroneous admissions and statements in the answer prepared for him by the solicitor and counsel of his co-defendants was therefore properly granted. But to save useless expense, and to prevent any unnecessary delay, the order should have expressly provided that the testimony already taken in the cause might be used upon the hearing in the same manner as if the supplemental answer had been put in previous to the taking of such testimony ; and that either the complainant, or Birkbeck the respondent, be at liberty to furnish a new list of witnesses, and to take proofs as to the matters of such supplemental answer or of any matter put in issue thereby, I think the appellant should also have been allowed his costs of opposing this application, to be taxed, Avith the costs of noticing the cause for hearing, and to be paid Avithin twenty days after service of a copy of the taxed bill. The order must therefore be modified accordingly 5 and neither party is to recover costs as against the other, upon this appeal.

The proceedings to he remitted to the vice chancellor»


text:
    Jauncey and others, appellants, vs. Rutherford, respondent.
    Where an executor, devisee, or any other person who is interested in establishing a will of real estate, applies to the surrogate to have the will proved, it is only necessary to give notice of such application to the heirs at law of the decedent. And if the surrogate admits the will to probate, it seems it is sufficient for the heirs at law, where they wish to appeal from the decision, to make those who applied to the surrogate for probate of the will, parties to the appeal; leaving other persons, who are interested in sustaining the decision of the surrogate, to come in as interveners, before the appellate court, and make themselves parties to the appeal, if they wish to become such parties.
    Upon the abatement of a suit depending in the court of chancery, upon an appeal from the decision of a surrogate, or of a circuit judge, the parties must proceed to revive the suit according to the ordinary practice of the court of chancery in reviving a suit which has abated during the pendency of an appeal to the chancellor from a decree or order of a vice chancellor.
    Where the proceedings upon the appeal are abated by the death of a party, whose interest, by that event, Is cast upon his heirs at law or personal representatives, the proceedings may be revived upon a simple petition for that purpose; according to the provisions of the revised statutes in the analogous case of an original suit in the court of chancery. And if the abatement occurred by the death of the respondent before he had answered the petition of appeal, the petition to revive should pray that his heir, or representative, against whom it is sought to revive the proceedings, may appear and answer the petition of appeal within the eighty days allowed by the statute, or that the appellant be heard ex parte.
    But if, by the death of a party to the appeal, his interest is not east upon his heirs or personal representatives, the proceedings must be revived upon a petition in the nature of a bill of revivor and supplement. And the proper mode of compelling the new parties to answer such petition and the petition of appeal, is to serve a subpoena upon them; as in the case of a bill of revivor and supplement.
    Whether a new trustee is necessary to be appointed, in any suit or proceeding in the court of chancery, in cases where the trust has devolved upon that court under the provisions of the revised statutes, and where the real parties in interest are before the court; Quiere?

    August 17.
    This was an ex parte application, on the part of the appellants, to revive an appeal from a decision of the circuit judge of the first circuit affirming a sentence or decree of the surrogate of the city and county of New-York; which decree admitted to record, as a valid will of real estate, an instrument propounded by the respondent Rutherford, as the last will and testament of William Jauncey deceased. By the instrument admitted to record the decedent appeared to have devised his real and personal estate to Rutherford and three other persons, as trustees, to receive the rents and profits of his real estate and the interest and income of his personal property, and to pay, out of such rents and income, to his niece Jane Mary Thorne, wife of Herman Thorne, an annuity of ¿62000 sterling for her separate use, during her life, and a further annuity of ¿6500 sterling for the support and education of her children until the youngest of them should attain the age of twenty-one. A house and lot on Broadway and New-street were also devised to Mrs. Thorne for life, with remainder to her daughter Angeline in fee if she survived thé mother, or if she died in the lifetime of the mother, then to others of the children of Mrs. Thorne. Some other houses and lots were devised to William Jauncey Thorne and James Jauncey Thorne, severally, in fee. But the trustees were authorized to receive the rents and profits during the minority of these devisees respectively, for the general purposes of the will. Various pecuniary legacies and some specific bequests were also given by the will. And by the residuary clause all the rest of the decedent’s property was devised and bequeathed to William Jauncey Thorne in fee, when he arrived at the age of twenty-one years.
    The petition of the appellants stated that William Jauncey died in 1828, leaving them his only heirs at law ; that two of the executors named in his will died in his lifetime or shortly after his death, and that a third one, who was still living, renounced the execution of the will and refused to accept the trust therein contained, and never acted as executor or trustee ; that in September 1835, John Rutherford, as the only acting executor and trustee, offered the instrument for proof and for record as the will of Jauncey the decedent, and cited the appellants to appear before the surrogate and show cause why the same should not be proved and recorded; that they appeared and opposed the proof of the same, but the surrogate decided that the will was duly proved, and ordered and decreed the same to be admitted to record as a will of real estate ; that they then appealed to the circuit judge, who affirmed the decision of the surrogate; from which last decision they appealed to the chancellor, within the time allowed by law for that purpose, and filed their petition of appeal, and procured a return of the proceedings to this court, in January, 1840 ; that before any further proceedings were had upon such appeal, Rutherford died ; and that Mary Rutherford his widow was the executrix of his will. The petitioners further stated that beneficial interests in the estate of the decedent Jauncey, were by his supposed will devised to the said Jane Mary Thorne wife of Herman Thorne, Angelina Jauncey Thorne wife of Louis Depeau, James Jauncey Thorne, William Jauncey Thorne, and Mary Jauncey Thorne, most of whom were now residing in France, and to several other persons named in the petition. The petition also stated that William Jauncey Thorne died after the death of the decedent Jauncey ; but it did not state whether he died intestate, or who wrere his heirs at law. Neither was it stated in such petition whether Mrs. Thorne had any other children than those named, who were interested in the real estate under the will or in the rents and profits thereof, as contingent remaindermen or otherwise.

      H. V. I). Van Epps, for the petitioners.
   The Chancellor.

This petition presents several new questions of practice, arising under the provisions of the revised statutes relative to uses and trusts, as to the proper manner of reviving proceedings on appeals from the decisions of surrogates and circuit judges.

By the provisions of this will, as the law was at the time of the death of Jauncey, in 1828, the legal title to the whole of his real estate vested in the executors who did not renounce the trust. And if the revised statutes had not changed the law, that legal title would have descended to the heirs of the respondent Rutherford, charged with the trust ; and they would have been the proper persons against whom the proceedings upon this appeal should have been revived. The 68th section of the article of the revised statutes relative to uses and trusts, (1 R. S. 730,) however, declares that upon the death of the surviving trustee of an express trust, the trust estate shall not descend to his heirs, nor pass to his personal representatives, but the trust, if then unexecuted, shall vest in this court, with all the powers and duties of the original trustee; and may be executed by such person as the court may appoint for that purpose. The 47th and 48th sections of the same article of the revised statutes, (Idem, 728,) have also turned all mere naked trusts in real property, not connected with any power of actual disposition or management, into legal estates in the cestuis que trust; of the same quality and duration, and subject to the same conditions, as their beneficial interests in such property. And when the purposes for which an express trust has been created shall have ceased, the estate of the trustee in the land also ceases. (1 R. S. 730, § 67.) By the operation of these several statutory provisions, upon the beneficial interests which this will purports to convey in the decedent’s real estate, the legal title to some portions of such estate is now vested in the heirs at law of the deceased son of Mrs. Thorne, if he died without a will. The title to certain other portions of it is vested in her son James, if he has arrived at the age of twenty-one ; and the remainder in fee in certain other portions, subject to the life estate of Mrs. Thorne in the same, or in the rents and profits, is vested in the persons beneficially interested therein after her death. And the trust, during her life, has, as to the last mentioned portions, devolved upon the court of chancery, by the death of Rutherford the trustee ; who had the right of management by receiving the rents and profits thereof during the life of Mrs. Thorne, if the personal estate was not sufficient to pay the annuities charged upon the testator’s property.

The article of the revised statutes relative to wills of real property and the probate of them, authorizes any executor or devisee, or any person interested in real estate under a will, to apply to the surrogate to have such will proved, upon due notice to the heirs at law of the decedent ; without directing any proceedings for the purpose of making other persons, interested in establishing the will, parties before the surrogate, or respondents in an appeal from his decision, or from the decision of the circuit judge, where the will is decided to be duly executed and is admitted to record. (2 R. S. 57, § 7, 8, 9.) It is probably sufficient, therefore, for the heirs at law who wish to appeal from such a decision, to make the other parties to the proceedings before the surrogate who have an interest in sustaining the will, respondents in the appellate court, by calling upon them to answer the petition of appeal; and leaving other persons who are interested in sustaining the decision of the judge a quo, to come in as interveners before the judge ad quem, and make themselves parties to the proceedings there, if they shall think proper to do so.

When such an appeal abates by the death of the sole respondent therein and his interest as devisee is cast upon his heirs at law, there can be no difficulty in ascertaining who are the proper parties against whom the suit is to be revived. As to the manner of reviving the proceedings, upon such an appeal, the practice is as plain. The 120th section of the article of the revised statutes relative to writs of error and appeals directs this court to prescribe, by rule, the course of practice upon appeals to the court of chancery from judgments or determinations of courts of common pleas in relation to the estates of habitual drunkards, and on appeals from surrogates and the decisions of circuit judges in cases where an appeal is given to the chancellor. (2 R. S. 611.) And the 118th rule of this court, made in pursuance of this statutory direction, prescribes that upon such appeals the proceedings shall be conducted by solicitors and counsel, and by the guardians ad litem of minors, according to the ordinary practice of this court in other cases : except as is in that rule otherwise directed. That rule contains no special directions as to the course of practice in reviving proceedings upon appeal which have become abated or defective by the death of either of the parties to such appeal. The proceedings, therefore, must conform, as far as practicable, to the analogous proceeding to revive an ordinary suit in the court of chancery, and which was pending before the chancellor upon appeal from a vice chancellor at the time of the abatement thereof. In cases where the interest of the deceased party is cast upon his heirs or personal representatives, so that in an ordinary case the suit could be revived by petition merely, according to the provisions of the title of the revised statutes relative to the court of chancery, (2 R. S. 184, § 109, §c.,) the appellant, or his legal representatives in case of his death, may proceed in the same manner to revive the suit upon the appeal. And where the respondent has died before answering the petition of appeal, the petition to revive should pray that his heir or representative, against whom it is sought to revive the proceedings, may appear and answer the petition of appeal within the time prescribed by the statute, after service of the copy of the petition and order, or that the appellant be heard ex parte. (2 R. S. 184, § 116.)

The difficulty in the present case, however, arises from the fact that by the provisions of the revised statutes relative to uses and trusts, the interest of the respondent in the subject matter of the appeal is not cast upon his heirs by his death; nor has his personal representative any interest in sustaining the decision of the judge a quo, except as to the costs awarded in the court below, if costs were given there. And even those costs may belong to the cestuis que trust if they have been paid to the representative of the trustee, or retained by him out of the income of the trust property. It is, therefore, not a case in which, in the analogous proceeding in an ordinary suit in this court, the suit could be revived by a simple bill of revivor, or a petition under the statute. But a bill in the nature of a bill of revivor and supplement would be necessary. (Douglass v. Sherman, 2 Paige’s Rep. 358.) The proper course, therefore, to get the necessary parties before the court, to enable me to dispose of this appeal, appears to be by a petition in the nature of a bill of revivor and supplement, stating the proceedings before the surrogate and circuit judge, and in this court upon the appeal, the death of the sole trustee who had not renounced the trust, and the several parties or persons who have now any interest in the real estate under the alleged will, or any interest in sustaining the decree appealed from ; and praying that they may appear and answer the said petition, or disclaim, or that the allegations in the petition may be taken as confessed, and the appeal stand revived against them, and that they also answer the petition of appeal or that the appellant be heard ex parte. And the service of a subpoena to appear and answer the petition, in the nature of a bill of revivor and supplement, appears to be the proper mode of notifying those who are intended to be made parties and who can be found within the jurisdiction of the court; and as to absentees, the usual order to advertise should be obtained, if they do not voluntarily appear in the suit.

The present petition is defective in several particulars. It appears that William Jauncey Thorne, the residuary devisee and legatee under the will, survived the testator and that he has since died. But it is not stated whether he died intestate, or devised his estate or interest in these lands to others than his heir at law, or who is such heir'. These particulars should be stated for the purpose of showing who now represents that interest. Whether a new trustee is necessary in any case where the trust has devolved on the court, under the statute, and where the cestuis que trust are all made parties to a suit in this court, is a question not necessary now to be decided. But to enable the court to appoint a new trustee, it must distinctly appear that the whole object of this trust, so far as the real estate is concerned, has not ceased. The necessary facts, however, are not stated in the petition to enable me to form an opinion whether any thing remained to be done by the trustee in relation to any part of this real estate at the time or if so, whether any thing still remains to be

done by a new trustee, if one should be appointed. Neither does the prayer of the petition conform to the opinion which I have just expressed in reference to what the proper prayer of a petition to revive should be, under the circumstances of this case.

The petitioners are, therefore, to be permitted to withdraw their petition, and to present or file a new one in the proper form, containing all the necessary allegations ; and to proceed thereon in such manner as they shall be advised.