text:
    Graves vs. Maguire and others.
    1837. March 21.
    A certificate of probable cause for appealing from an interlocutory order of a vice chancellor, when given by him for the purpose of staying the proceedings in conformity to the provisions of the 116th rule, is a mere chamber proceeding, like the approval of the sureties in an appeal bond, and cannot be vacated by the court below.
    The certificate of probable cause, upon an appeal from an interlocutory order of a vice chancellor, will not stay proceedings which would not be stayed upon a similar appeal from an interlocutory order of the chancellor. Such certificate, therefore, will not deprive the respondent of the right to apply for security for the debt, &c. as a condition of the further stay of proceedings. Neither will it have the effect to restore an injunction which is dissolved by the order appealed from, or suspend the operation of an injunction granted by such order.
    An injunction had been granted in this cause, restraining the defendant Maguire from selling or incumbering certain leasehold premises upon which the complainant claimed to have an equitable mortgage, and also restraining Maguire from receiving certain insurance monies from one of the other defendants, which monies had become payable in consequence of the loss of the buildings upon the premises. Maguire upon the coming in of his answer moved to dissolve the injunction; and the vice chancellor dissolved it so far as it restrained Maguire from receiving and the insurance company from paying the amount due upon the policy. From this part of the decision of the vice chancellor, the complainant appealed ; and upon an application to the vice chancellor, athis chambers, he obtained a certificate of probable cause for appealing, dec. according to the provisions of the II 6th rule. The solicitor of Maguire thereupon gave notice to the complainant’s solicitor of an application to the vice chancellor’s court for an order to vacate and set aside the certificate, with costs; which order was afterwards obtained ex parte and entered with the clerk—no one appearing to oppose.
    The complainant’s solicitor, upon an affidavit showing an excuse for not appearing to oppose the last application, after-wards applied to the vice chancellor and obtained an order ex parte, to suspend the operation of the order vacating the certificate, until a motion could be made, upon due notice, to vacate the last mentioned order. The vice chancellor, upon hearing of the parties, afterwards opened the order vacating the certificate, and permitted the complainant to come in and oppose the original application of Maguire for an order. And upon hearing the parties thereon, he denied the application to vacate the certificate, but without costs. From this last decision, as well as from the two previous orders of the vice chancellor, the defendant Maguire appealed ; but before the hearing of such appeal,- the original decision of the vice chancellor, dissolving the injunction as to the insurance money and retaining it as to the residue of the matters embraced therein, had been- affirmed by the chancellor.

      W. Silliman, for the appellant.

      C. Edwards, for the respondents.
   The Chancellor.

The whole of the proceedings to which this appeal relates appear to have been useless and unnecessary,' as well as the appeal itself. And the only erroneous proceeding which required correction was the order of the 6th of February, vacating the vice-chancellor’s certificate of probable cause with costs. Even that would have been no injury to the complainant if it had not charged him with the payment of the costs of the application, as it was in this case of no consequence to either party whether the certificate was vacated or remained in full force.

The sixty-first section of the title of the revised statutes relative to the court of chancery, (2 R. S. 178,) authorizes the chancellor, by general rales, to prescribe in what cases, to what extent, and on what terms, orders and decrees made by a vice chancellor shall be suspended or affected by an appeal. In pursuance of this authority the 116th rule adopts the statutory regulations as to the stay of proceedings upon appeals from the chancellor to the court for the correction of errors ; but with an additional requirement that the appellant can in no case stay the proceedings upon an interlocutory order of a vice chancellor, in any other way than by a special application to the chancellor himself, unless he obtains the certificate of probable cause prescribed by that rule. But this certificate of probable cause will not operate as a stay of proceedings in any case where the appeal itself would not stay the proceedings upon an appeal from such an order or decree of the chancellor, if made to the court for the correction of errors. Neither will such certificate of probable cause deprive the respondent of the right to apply to the vice chancellor for further security, &c. as a condition of the further stay of proceedings, in conformity to the provisions of the 87th section of the title of the revised statutes relative to writs of error and appeals ; (2 R. S. 607;) which section, by the 116th rule, is made applicable to appeals from interlocutory orders and decrees of vice chancellors. (See Gregory v. Selman Dodge, 3 Paige’s Rep. 90.)

In the case of Hart v. The Mayor, &c. of Albany, (3 Paige’s Rep. 381,) I had occasion to examine the question whether an appeal from an order dissolving an injunction suspended the order so as to leave the injunction in force pending the appeal; and I there came to the conclusion that the appeal could have no such effect. The effect of an appeal, after the proper steps have been taken to render it a stay of proceedings upon the order or decree appealed from, is to leave the proceedings in the same situation as they were at the time of perfecting such appeal, but not as they were before the order or decree appealed from was entered. If the order appealed from, was an order granting an injunction the same is not dissolved by the appeal, so as to authorize a party to proceed in violation of the injunction pending such appeal; although the present or immediate power of the court below to punish the party for a breach of the injunction pending the appeal would perhaps be suspended until after such appeal was disposed of by the appellate court. (2 R. S. 697, § 89.) And where the appeal is from an order dissolving an injunction, such injunction is wholly inoperative; and can not have the effect to restrain the proceedings which were formerly enjoined, until such order is reversed upon the appeal so as to restore the binding force of the injunction. For this reason the certificate of probable cause for appealing although regular in this case, was perfectly useless, as it could neither benefit the complainant or injure Maguire.

The vice chancellor, however, was right in opening the order which had been obtained by default; inasmuch as that order not only vacated a useless certificate, but also charged the complainant with the costs of an improper, motion. And the excuse for not opposing that application in the first instance was, under" the circumstances of this case, unquestionably sufficient. The certificate of probable cause for appealing is a chamber proceeding of the vice chancellor, like the approval of the sureties in an appeal bond. It cannot, therefore, be set aside or vacated upon an application to the court below; although if it is wholly inoperative, as in this case, the respondent is at liberty to proceed notwithstanding the appeal. The vice chancellor was therefore right in the final order which he made in this matter, denying the application to vacate the certificate. There was no foundation for the appeal as to either of the orders appealed from, and the appellant Maguire was not injured by the entry of either of them. The orders must therefore be affirmed with costs.


source: Caselaw Access Project

author: The Chancellor.

license: Public Domain

text:
    Spofford and others vs. Manning & Crommeline.
    1837. March 21.
    A purchaser of real estate cannot claim the same as a bona fide purchaser without notice, as against the equitable right of a third person who at the time of such purchase was in the actual possession of the premises claiming to be the owner thereof in fee.
    Where a defendant demurred to both discovery and relief as to part of the complainant’s bill, and answered as to the residue hut in his answer inserted a general denial of knowledge as to any matters of the bill other than those which he had answered, and concluded his answer with the usual traverse; Held, that such answer covered a part of the discovery to which the demurrer related, and therefore overruled the demurrer.
    Where a legacy or devise is given to the legatee or devisee upon a condition, either express or implied, such legatee or devisee cannot in equity be permitted to take the benefit of the legacy or devise without performing the condition ■ and if he accepts the legacy, or enters into possession of the estate devised, or sells the same, without a previous performance of the condition, the court of chancery will compel him to perform it.
    Where a father who had a life estate only in real property, the remainder in fee belonging to his children, sold such property in fee and gave a bond to the purchaser to secure to him a conveyance of the premises by the children when they became of age, and the father afterwards died, during the minority of some of the children, leaving a large real and personal estate which he by his will gave to his children on condition that they confirmed such sale of the premises, and the children afterwards took possession of the property devised under the will; Held, that the grantees of the property sold and conveyed by the father were in equity entitled to be protected against the legal title of the children to the remainder, after the death of their father, in the premises thus conveyed.
    This case came before the chancellor upon an appeal from an order of the vice chancellor of the first circuit, overruling the demurrer of the defendant Manning to the complainants’ bill. The object of the bill was to restrain the defendants from proceeding in an ejectment suit, which they had commenced for the recovery of an undivided part of lot No. 27 Peck slip, in the city of New-York, and to quiet the complainants in their title to and possession of that lot. The bill alleged that in 1775 J. Rosevelt, who was then the owner of the premises, devised the same to James Crommeline for life with remainder to his children in fee; that iim 1804 J, Crommeline, together with two of his seven children, the others then being minors, conveyed the premises in fee to Moses Hoyt; and that J. Crommeline the father gave a bond to the purchaser, in which he covenanted that his other children should convey to Hoyt, or his-assigns, their respective interests in the premises when they should be-. come of lawful age. The complainants had derived their title to the premises from Hoyt, and the premises had been possessed under the title thus acquired down to the tim'e of the commencemeut of this suit. J. Crommeline died in 1808, possessed of a large real and personal estate, which by his will he devised to his children on condition that they confirmed this, and other sales which he had made under like circumstances, by executing deeds therefor, as the two eldest sons had already done; and that in case either of his said children should refuse or neglect to confirm the sales, his or their portions of the estate should remain as a security to the purchasers, and the child so refusing should not have the same. After the children came of age, they all executed releases of portions of the lands which had been previously conveyed by their father, and most of them executed a release of the lot in question. The bill also alleged that all the children of James Crommeline, after they be- ■ came of age, affirmed the sale to Hoyt .and elected to take under the will, and received monies and other property under the same; that Charles Crommeline, one of the children, afterwards died intestate, leaving the other six his heirs at law; and that the defendants had brought an ejectment suit for the recovery of two-sevenths and two-thirds of one other seventh of the premises, on the ground that Charles, Alfred and Edw'ard Crommeline had no.t executed any conveyance of. their shares of the premises to the complainants or to those under whom they claim.
    The defendant Manning demurred to so much of the bill as related to the will of James Crommeline, as sought to make title by or under the same to the premises, and as to all discovery and relief sought against him in relation to the will. He also put in an answer claiming two-sevenths and one-third of another seventh of the premises, by a conveyance from Alfred Crommeline, his co-defendant, in April, 1831; Edward having previously conveyed his interest in the premises -to Alfred. And he averred that at the time he purchased and paid the money and obtained his conveyance he had no notice of knowledge of any right, title or claim, of Moses Hoyt, of of those under whom the complainants claim, to the parts or shares of Charles, Edward or Alfred or of either of them. After answering and admitting or denying a part of the allegations in the bill, he concluded by stating that he was a stranger to and ignorant as to all the other matters and transactions in the bill stated; and without admitting the same to be true, left the complainants to prove the same as they should be advised.-

      H. W. Warner, for the appellant.
    The complainants cannot claim under the will of James Crommeline. To raise a case of election under a will, there must be a form of a gift as to the property which the donor had no power to dispose of. James Crommeline did not devise the premises in question to Moses Hoyt or to any other person; consequently the complainants cannot claim the premises under' the will. The clause in the will, if relied on as forming a Condition to the devise of the testator to his children therein named,- is void for uncertainty. And the children took the estate devised discharged from the condition. The condition was inoperative and void, because there was no devise of the property over, in case of non-performance, to those for whose benefit it was intended; and the heir at law alone can take advantage of a breach of condition. The nature of such a condition is repugnant to the estate devised ; which being in fee, without a devise over, the condition was necessarily void. And the declaration that the estate devised should, in case of non-performantie of the condition, be and remain as a security to purchasers of estates belonging to the children, though sold by the testator, was nugatory and only in terrorem. But supposing the condition prescribed in this clause as sufficient to defeat the devise to the children, in case of non-performance, still the estate so devised must necessarily be and remain in the children or their assigns, until divested by the claim and entry of the heirs at law, who alone can take advantage of a non-per-formance. The condition, if it is such', being a subsequent condition and the estate being vested by virtue of the devise in the children, in fee, and the lot in question not being given to Hoyt by the will, a court of equity, though .it may relieve to prevent the divesting of an estate, yet cannot relieve tó give an estate that never vested. As Hoyt never had either a legal or equitable title, he had no power to dispose of the lot to the complainants. The bond of James Crommeline to Moses Hoyt did not give to Moses Hoyt either a legal or equitable title to the premises. If the will should be construed into a case of election with respect to its devises, yet there is nothing in the will or in the complainant’s bill to extend it to the defendant Manning, who does not claim under the will and cannot be estopped by it. (Weale v. Lower, 2 Vern. 306. Sugden, 140. Cruise’s Dig. Estate for Life, § 95, 97. 10 Vesey, 609. 3 Ves. & Beam. 199. 1 Loui. 105. 2 Con. Eng. Ch. Rep. 53. 2 Vernon, 581. Amb. 388. 13 Ves. 209. 6 Dowe, 149. 1 Swanst. 359, 381, n. a. 3 Atk. 715. 9 Cowen, 241. 5 T. R. 564. 2 New Rep. 451. 2 Vern. 624. 2 P. Wms. 136,188. Cas. Temp. Talbot, 240, note 242. 4 Brown’s Ch. 180. 11 John. Rep. 218. 2 Cruise, tit. 13, Estate on Con. ch. 1, § 15, and ch. 2, § 49. 2 Eq. Cas. Abr. 549,pi 29. Amb. 259. 1 Wil. Rep. 13$. 1 Com. Dig. tit. Condition, (T,)pl. 121, 7 Cowen, 187. 9 John. Rep. 104. 2 Black. Comm. 302. 2 Co. Litt. 366, b, and 367 a, and Har. & But. notes 366, 7, note 316. Co. Litt. 295, 6; 2 Black. Comm. 325. 8 Cowen, 543. 1 Ves. 285. 13 Idem, 220.)

      E. Paine, for the respondents.
    The case made by the bill and demurrer is one of election, sufficient, if made out by proof, to entitle the complainants to the relief prayed; (Ambler, 540. Notes to Dillon v. Parker, 1 Swanst. 359, 408. 1 Edward’s Rep. 206. 13 Ves. 220. 2 Sch. & Lef. 267, 8. 13 Price, 782, S. C. 1 M. Sel. 541, S. C. 1 Bligh, N. S. 401. 3 Bro. C. C. 165, and n. 2 Sch. & Lef. 450. 1 Sim. 105. 1 Ves. jr. 525. 5 Id. 515. 10 Id, 609. 19 Id. 656, 665, 6. 18 Id. 49. 3 Id. 65. 1 Jac.
      317. 1 Dow. 249. 2 Ves. & Beam. 127, 187. 4 Bro. C. C. 21, 24. 1 Swanst. 359. 3 Russel, 256, 7. 3 Bro. P. C. 178, n. 2 Ves. jr. 696.) The case made by the bill being one of election, it is not necessary that the lot in question should be devised by the will to the grantor of the complainants, or that there should be any form of gift to him in the will. The form of gift is in another instrument which the will refers to, and makes it a condition expressed with perfect certainty, that the devisees shall not take under the will unless they affirm the gift by the other instrument. They have made their election, and are bound by it. (Cases above cited and 1 Sim. 109 ; 3 Bro. P. C. 178.). The causes of demurrer to the discovery are bad if the demurrer to the relief is bad; for the discovery is incidental to the relief and proper if we are entitled to the relief. The case is a proper one for equitable relief and we cannot have a complete remedy at law. Election is peculiarly a doctrine of equity, and although courts of law may sometimes notice it, it is only in clear and simple cases. It is not a legal but equitable defence. (1 Sch. & Lef. 450, 2. 10 John. Rep. 587. Caines’ Cas. in Er. 1. 17 John. Rep. 384. 1 John. Ch. Rep. 166.) There are grounds of relief in the bill not demurred to, which entitle us to come into equity. And the court having jurisdiction as to these, will also retain it as to the election. (10 John. Rep. 587. 17 Id. 384.) Fraud or accident, viz. the loss of the release gives the complainant jurisdiction. Besides if we are entitled to a release, we wish to use it in defence of the action of ejectment, and we can obtain it in equity only.
   The Chancellor.

Without reference to the merits of the question involved in the demurrer to a portion of the bill in this case, I think the decision of the vice chancellor was clearly right in disallowing the demurrer; as it is unquestionably overruled by the answer. That part of the answer in which the defendant sets up his defence as a purchaser without notice of any right or claim on the part of Hoyt or of those who had derived title from him, would be, if true, a defence to the equitable right claimed under the will and the subsequent election by the children after they became of age. And although the defendant will not be able to avail himself of the defence of a bona fide purchaser if it should turn out that the complainants were at the time of the purchase in the actual possession claiming the premises in fee, as that would be sufficient to put him upon inquiry both as to their legal and equitable rights, the demurrer is still overruled by this part of the answer. Again; the concluding allegation, denying all knowledge as to any of the matters of the bill other than those which he had answered, with the general traverse of the answer, puts in issue and answers all the matters attempted to be covered by the demurrer. But as it may save further litigation between these parties to dispose of the case upon the merits, which were fully argued upon the appeal, I will proceed to examine the question whether the devise to the children, and their acceptance of property devised and bequeathed to them by the will, was an equitable bar to their claim to the reversion in the lands, which their father, had previously-conveyed to Hoyt and others, under the circumstances of this case, even if no release has been executed by them conveying the legal estate.

Upon this part of the case I perfectly agree with the vice chancellor in the view he has taken of this question in the case of Leonard v. Crommeline, (1 Edw. Ch. Rep. 206,) which was a suit in relation to another of the lots conveyed by J. Crommeline under similar circumstances. The principle is this, that where a legacy or devise is given upon a condition, either express or implied, the legatee or devisee cannot in equity be permitted to take the benefit thereof without performing the condition upon which it is given. And if he receives the legacy, or enters into possession of or disposes of the property devised without previously performing the condition, this court will compel him to perform it. This principle is fully exemplified in the case of The Earl of Northumberland v. The Marquis of Granby, (1 Eden’s Rep. 486.) There a legatee was entitled to an interest under a marriage settlement; and the legacy of furniture and other things was given upon condition of his executing a release of that interest. The legatee having taken possession of the furniture bequeathed to him, and died without executing the release, Lord Northington decreed his executors to execute the same, although the property released was much more valuable. That decision was afterwards affirmed upon a re-hearing before Lord Camden. (2 Blunt’s Ambler, 657.) The case under consideration is an ordinary case of election, like a legacy or bequest in lieu of dower. In such cases, where the legatee or devisee has a right independent of the testator, if the devise or bequest is upon condition either express or implied that such right shall be relinquished if the party accept of the conditional gift, it is in equity a relinquishment of the right; and this court will compel him to execute a proper release or conveyance where it is necessary to extinguish the right at law. The party who is bound to make the election undoubtedly is entitled to a reasonable time to inquire and ascertain whether it is for his interest to accept the gift and relinquish the right. But if he accept the gift without waiting to ascertain what is his interest in the matter his election is determined, and he cannot afterwards refuse to relinquish the right on the ground that the gift was not a fair equivalent therefor. In the case of Lord Lonsdale, (1 Sim. Rep. 105,) which was much relied upon by the appellant’s counsel, there was no conveyance or devise of the school house, or of the land upon which it stood, to the charity; and no intimation in the will that the testator wished the legatee to relinquish his estate in remainder in the land. The legacy in that case was therefore absolute and not conditional.

In this case the allegation in the bill, and which is admitted by the demurrer, is, that the testator devised a large real and personal estate to his children, which they were not to have unless they released their right to the lands that he had previously conveyed; and that after they were of age, they not only took the property devised to them on this condition, but that they actually executed a release to some portions of the lands conveyed. This was decisive as to the equitable rights of those who had derived title to the premises in question under Hoyt to have a release of the rights of all the children in this lot. And if such a release has not been already given, the defendant Manning who has obtained the legal estate must now execute it, unless he can protect himself as a bona fide purchaser. If he succeeds in establishing such a defence, of which there is little probability from the facts stated in the bill, the complainants will be entitled to their remedy over against Alfred Crommeline for the value of that part of the property, which he has disposed of contrary to equity.

The decretal order appealed from is affirmed with costs ; and the proceedings must be remitted to the vice chancellor. The complainants to have 30 days to file their exceptions, for the purpose of obtaining a further answer to the part of the bill covered by the demurrer, as well as to any other parts thereof which are not already fully answered.

       See also Talbot v. The Earl of Radnor, (3 My. & Keen’s Rep. 254,) in which it was held that a legatee could not accept and take a legacy which was beneficial to him and, at the same time, reject one which was onerous and would be a burthen upon the estate.


text:
    Putnam vs. Ritchie and others.
    Where the owner of leasehold premises under a lease in fee, died leaving several infant children, and their mother, who was the administratrix of his estate, assigned the lease to the owner of the rent as heir of the lessor, in consideration of his discharging his claim for the rent against the estate of the decedent; Held, that the assignment was void, and that the children of the decedent were not divested of their legal estate in the premises; and that the assignee of the lease having, under a misapprehension of his legal right to the premises, made large and valuable improvements thereon, the owners of the legal estate were not bound to pay him for those improvements.
    Previous to the revised statutes, tenants in common could hold their several shares in the property by different tenures. And where one third of the property is held by a tenant in common in allodium, and the other two thirds are held by others by a socage tenure, a subsequent purchaser who unites the titles of all the tenants in common in himself) holds the different undivided portions of the property by separate and distinct tenures.
    Where infants took lands by descent, two thirds of which were held by their father in free and common socage and the other third in allodium; Held,
      that the mother was entitled to the custody of the children and to the care of the lands as their guardian in socage.
    1837. April 4.
    A guardian in socage has no right to surrender a lease in fee belonging to her wards; neither can she lease their freehold estate for a longer period than during the probable continuance of such guardianship.
    Where the legal title to property is in a trustee,or where the guardian of an infant has a complete legal control over the property, so as to place itfully within the power of the chancellor as the general guardian of infants, the court may sanction the acts of the trustee or guardian, although not strictly legal, if the same are done in good faith and for the benefit of the estate of the infant. And the court sometimes interferes to compel the performance of marriage contracts made in behalf of infants, where the marriage has been consummated on the faith of such agreement. With these exceptions, chancery never interferes to deprive an infant of his estate, which has been disposed of without authority during his infancy, unless upon some new equity arising out of his subsequent acts or acquiescence.
    The rule of the civil law in regard to industrial accessions to the property of another, made in good faith by a bona fide possessor, has not been adopted in England or in this state, except so far as to allow him to oflset, or recoupe in damages, the value of such industrial accessions, against the owner’s claim for rents and profits during the occupancy of the person who made the improvements upon the property.
    But where industrial accessions have been made to property in good faith by a person who has the legal title to the property, so that the real owner is compelled to resort to the court of chancery to assert his equitable title to such property, this court acts upon the civillaw rule of natural equity, and compels the complainant to compensate the adverse party for such industrial accessions, or improvements, as a condition of granting the equitable relief asked for in the suit.
    Where facts are distinctly put in issue by the pleadings, the examiner cannot reject evidence which is material to prove such facts, on the ground that the matters put in issue by the pleadings are immaterial. Therefore the court, upon an application to expunge such testimony, will not decide upon the materiality of the issue upon such facts.
    The bill in this cause was filed against the children and heirs of John Ritchie, deceased, one of whom was an infant, to restrain the further prosecution of an ejectment suit brought by them against the complainant, to recover the possession of a village lot, at Saratoga Springs, under the following circumstances: The premises in question were a part of lot No. 12, in the 16th allotment of the Kayaderosseras patent. That lot, upon the partition of the patent, in 1772, fell to the original share of Rip Van Dam, and the title to the same, previous to the act of attainder of the 22d of October, 1779, was in Isaac Low, J. Walton and A. Van Dam; as tenants in common, who held the same by socage tenure. Upon the attainder of Low, his undivided share of the lot was sold by the commissioners of forfeitures to H. Livingston. The father of the complainant afterwards became the owner of a part of lot No. 12, including the premises in question, under the title of Walton, Livingston and A. Van Dam, and in 1812, he leased the'village lot in question to John Ritchie in fee, at an annual rent of $20, with the usual power to distrain, or to re-enter, for non-payment of the rent. The lease also contained a clause that the rent should cease and that the lessee or his legal representatives should have an absolute conveyance in' fee upon the payment of $300 at any time within five' years, G. Putnam, the father of the complainant, died in December, 1812, and upon the partition of his estate, in February, 1814, the rent and reversion of the premises in question fell to the share of the complainant. Ritchie, the lessee, died about one year after the execution of the lease, intestate, leaving about $1000 clear personal estate, and the undivided half of a house and lot at Ballston Spa, besides the premises in question. He also left three children, the defendants in this cause, his only heirs at law, the eldest of whom was then under five years of age; and administration upon his estate was shortly afterwards granted to the widow. In June’, 1814, the administratrix, thfotigh the agency of Se'llick, her" brother, who was permitted to act for her in the management of the estate of her deceased husband, made an arrangement with the complainant by which the latter was to receive the two years rtint then due and to take back the premises. The administratrix was advised to adopt this course as most beneficial to the estate, the premises leased having no buildings thereon and producing very little besides the taxes. The complainant received the rent, according to the agreement, and took from the administratrix an assignment, under her hand and seal, upon the back of the lease ; by which assignment she granted, sold and assigned the "lease and the premises therein described to him and his heirs and assigns forever, he saving her as well as the heirs of Ritchie harmless from the covenants, conditions and rents Contained in the lease. And she also covenanted with the assignee to warrant the premises to him against all claims of such heirs. The complainant thereupon took possession of the lot and continued in possession and paid the taxes, claiming it as his own, until the fall of 1828, When he Commenced building a large brick house thereon; which house was completed, except painting, in the spring of 1830. Julia Ann Ritchie, one of the heirs, became of age in August, 1829, and her sister who was previously married to Cook, who was himself a minor, became of lawful age in September, 1831. The parties having in the spring or summer of 1831 ascertained that their father had died seized of the premises, and that the lease had been given up by the mother and uncle who had suffered the principal part of their other property to be wasted, and were insolvent, commenced an ejectment suit, in the fall of that year, against the complainant, in the names of all the heirs of Ritchie, to recover possession of the lot. Upon the filing of the bill in this cause an ad interim injunction was granted, restraining the further prosecution of the ejectment suit; which injunction was afterwards modified so as to permit the suit at law to proceed to trial and judgment, but without prejudice to the complainant’s equitable rights. The ejectment suit was afterwards tried and judgment was rendered therein against the complainant. (See Ritchie v. Putnam, 13 Wend. Rep. 524.) The bill and answers in this cause put in issue various matters as to the tenure by which the premises were held at the time of the death of Ritchie; the value of the lot at the time it was given up to the complainant,* its value, exclusive of the buildings and improvements made thereon by the complainant, at the time of the commencement of this suit; the circumstances and negotiations which led to the assignment of the lease by the administratrix; the information and advice which the complainant received at that time as to the want of power to revest the title in him Without a formal re-entry ; the loss of the other property of the defendants by the negligence of the administratrix, and the frauds of Sellick, who procured himself to be appointed their guardian, in 1816, under an order of the surrogate and without sufficient security ; and as to the knowledge of the defendants that the complainant was going on to make valúable improvements on their lot, and their not giving him notice that they intended to disaffirm the agreement of 1814 for the giving up of the lease. And many witnesses were examined as to the several matters thus put in issue by the pleadings.
    The counsel for both parties gave notice that they would at the hearing move to expunge' certain portions of the testimony, which they had respectively objected to upon the examination of the witnesses, as irrelevant or impertinent; the decision of which questions was reserved by the chancellor until after the hearing of the cause upon the merits.

      W. L. F. Warren & S. Stevens, for the complainants.
    The lands in question are held by socage tenure. By the original grant the lands were to be held by the tenure of East Greenwich. East Greenwich is in the county of Kent 5 all lands in Kent are held in socage and by the custom of gavel kind. The statute of 1691 changed all tenures into that of free and common soccage; therefore the mother of the infants was guardian in socage, and she is presumed in law to have entered as guardian in socage. The disposition of the lands of the ward by the guardian in socage, if benéficial to the ward, will be sanctioned by the court and made obligatory upon the ward. The writing under which the complainant claims title was intended to be, and is in equity a surrender of the lease. The surrender of the lease, at the time it took place, was beneficial to the defendants ; the lot was then not worth the rent which they were bound to pay. The defendants are precluded from setting up their title; they knew their rights, knew the complainant was making improvements ; their silence was an act of fraud on their part. If complainant has not an equitable title, defendants should be required to allow the rent and pay for the improvements, and the complainant should only be charged with the annual value of the land as it was at the time of the surrender. (5 John. Rep. 67. 10 East, 491. 7 John. Ch. Rep. 154. Amb. 419. 1 Vern. 493. 1 Atk. 480, 489. Prec. in Ch.
      319. 18 Ves. 272. Eq. Cas. Abr. 287. 1 Fonbl. Eq. 77, n. a. 2 Vern. 224. 9 Ves. 19. 1 Fonb. 74. 2 P. Wms. 243. 1 Pro. Ch. Cas. 106. Bing. on Infancy, &c. 66, 93, 94, 112. 2 Fonbl. 229, note. 15 Ves. 448. 1 Mad. Ch. Pr. tit. Infant, 262. 6 Ves. 474. 9 Vin. 914, Infant, pl. 24. 1 Sch. & Lef. 352. 6 John. Ch. Rep. 166. 15 Mass. Rep. 220. 3 John. Ch. Rep. 368, 370. Jer. Eq. 216,219, 222. 15 Ves. 445. 2 Kent’s Comm. 220, 2d ed. Sugden on Vend. 380. 9 Mod. Rep. 35,36, 37. Co. Lit. 88, a. Har. Notes, 67. 6 Jac. Law Dict. 156, Surrender. Co. Lit. 335, a. Cro. Jac. 99. 2 Ves. sen. 212.)

      J. Ellsworth & M. T. Reynolds, for the defendants.
    There is no trust shown affecting the legal title, or that can give the court jurisdiction over the legal title, so as to authorize a claim for a release or conveyance of the legal title. The lot was not holden under socage tenure. (Co. Litt. § 117,118. 2 Black. Comm.78. 1 Greenl. Laws, 31, 27, 127,360.) A release of a thing indivisible operates as to the whole. (Co. Litt. § 447, 454,p. 268, a. § 479, p. 280, a. § 559, 560.) The trust of guardian was never assumed or acted under by the mother. (1 John. Rep. 164. 3 Wils. 527.) No act was done by her as guardian, and the trust of guardian in socage did not extend to the legal title beyond 14 years of age. (2 Kent’s Comm. 2d ed. 223. 14 Vin. Abr. 172,185. Vaugh. Rep. 178, 188. Plowd. 293.) And as trustee she had no power to change the nature of the estate. (Amb. 419. and cases cited. 11 Ves. 278. Milnor v. Harwood, 18 Ves. 273. 19 id. 122. Genet’s case, 1 John. Ch. Rep. 564. Root v. Worth, 1 Ves. sen. 461. Taylor v. Phelps, 2 Ves.jun. 23.) The change was manifestly to the injury of the defendants, and for the benefit of the personal representative. (2 Williams’ Ex. 1074.) The personal estate was the proper fund out of which to pay the rent reserved. There is no fraud shown here that can raise a trust by implication. (12 Serg. Sf Rawle, 399. 1 Atk. 480. 2 id. 82.) There was no mistake either in law or of fact; and rent is not recoverable at all. (4 Cowen, 581.) Neither are the defendants bound to elect either to pay for improvements or release their title. This is not a case ef election. (Green v. Biddle, 8 Wheal, I, I J.J. Marsh. Rep. 405.)
   The Chancellor.

The complainant’s objection to the part of the testimony of Mrs. McNelly which relates to the amount of the proceeds of the real and personal estate which she actually received from Seliick, her brother and agent, appears to be well taken. This testimony does not relate to any matter put in issue by the pleadings, and is wholly irrelevant. It is immaterial in this suit whether the property of the infants, which ought to have been appropriated for the payment or extinguishment of the rent of this lot or otherwise invested for their benefit, has been lost by the administratrix herself or by another who has been permitted to act as her agent. The objection, on the part of the defendants, to so much of her testimony as relates to the declaration of Ritchie as to the place of his birth, is also well taken. No question as to his alienage, or as to his right to transmit the premises by descent to his children, was raised or even suggested in the pleadings. Indeed if the complainant had stated in his bill that Ritchie was an alien at the time of his death, he would have shown that he had no pretence for coming into this court for relief, as he would in that case have had a perfect defence to the ejectment suit at law. And he would also have shown that the lot in question belonged to the people of the state, by escheat, and not to him ; so that his bill against these defendants must in that case have been dismissed with costs, on the ground that upon his own showing he had no claim to any decree against them. These parts of the deposition of Mrs. McNelly must therefore be expunged.

The parts of the testimony of other witnesses, which are objected to by the complainant’s counsel, went to the establishment of several allegations which were distinctly made in the defendants’ answer; and for that reason the testimony was properly received by the examiner. If these allegations in the answer were wholly irrelevant to the subject of the suit, the complainant should have excepted to them as impertinent. But having been put in issue by the replication, the examiner had no authority to decide upon the materiality of the issue upon the offer of testimony to establish the truth of the answer. Neither will the court, upon a motion to expunge testimony, decide the question collaterally whether a particular allegation in the bill or answer is pertinent or impertinent. Upon the hearing of the cause, however, the court will disregard the impertinent allegation as well as the proof in relation to the same; and the vice chancellor or master who taxes the costs is directed by statute to make no allowance for either. (2 R. S. 653, § 5.) The same answer may be given to the defendants’ objection to a part of the testimony pf Palmer, as it went to establish an allegation contained in the bill. The objection before the examiner was not put upon the ground upon which it was afterwards attempted to be sustained here. The defendants’ objection to a part of the answer of Blake, to the interrogatory whether the complainant did not take an active pari in the settlement of his father’s estate, must also be overruled. The interrogatory itself appears to be impertinent, and the party putting it should not be allowed to retain one part of the answer thereto and expunge the other. Where an impertinent interrogatory is put to a witness, it does not lie with the party putting it to object that a part of the answer thereto is impertinent, if the part complained of is necessary to prevent an improper inference being drawn from that part of the answer which is responsive to the interrogatory. Here, if it was material to the defence of these defendants to show that the complainant took an active part in the settlement of his father’s estate, it was probably as material that the court should know the fact that he was at that time a minor, and therefore not accountable for his acts.

The evidences of the title, under which the premises in question were held by Ritchie at the time of his death, establish the fact that the mother of the defendants had by the common law a right to claim their guardianship, by reason of the descent to them ex parte paterna of a freehold estate in land, an undivided two thirds of which was held by socage tenure.

By the act concerning tenures; (1 Gbeeril. Laws, 359,) lands in this state granted by the crown were declared to be held in free and common socage, and 'all lands granted by‘the state or by the commissioners of forfeitures were to be held in pure allodium only. And as the counsel for the defendants supposed that feudal and allodial tenures could not exist together in the undivided portions of the same lot, they insisted, upon the argument, that the attainder of Low and the sale of his undivided third of lot No. 13 to Livingston, by the commissioners of forfeiture, changed the tenure of the whole lot from feudal to allodial. But it is not necessary that there should be-either unity of,.tenure in the different portions of the land, or unity of estate in the several owners thereof, to constitute a tenancy in common. Unity of right of possession merely is all that is required. The sovereign power of the state, therefore, as the owner of lands not already granted, may dispose of an undivided moiety thereof to be held by feudal tenure by. one person, and.the other moiety to be held in allodium by the other, and the different grantees will be tenants in common. So if different portions of the land are held by tenants in common by.the same tenure, if the share of one tenant in common again becomes" vested in' the sovereign power, by escheat, forfeiture or otherwise, that share may be granted to another person by a different tenure, without in any manner affecting the tenure by which the other shares of the same land are held. In this case, upon the attainder of Low and the conveyance to Livingston, his share of the,lot became allodial, while those of Walton and Van Dam, even after they all became" united in the same person by subsequent conveyances, continued to be held by socage tenure as before ; until the recent revision of the laws changed all the feudal tenures in the state into pure allodium. And the mother of the defendants, being entitled to the custody and control of their persons and the care of their socage lands, as their guardian in socage, until they had respectively attained the age of fourteen, the better opinion appeárs to be that she was also entitled to the care of the other third of the premises in dispute, although that third was not held, by a feudal tenure but in allodium, the same having come to the children by descent from the same ancestor. (Co. Litt. 88, a. § 123, n. 67. Church v. Cudmore, 2 Lutw. 1190. 2 Kent’s Comm. 223.)

I cannot perceive, however, that the decision of this question as to the right of guardianship in favor of the complainant is calculated in any manner to aid him upon the decision of the main question in the cause. It is evident from the testimony in the case, that the administratrix was not aware of the fact that the lands in question were held by socage tenure, or that she had any right to the custody of the children or the care and management of their lands as guardian in socage; or that the complainant himself supposed he was dealing with her in the character of guardian. As she only had the right to enter in her character as guardian when she leased the premises to Sharp from year to year, the law will presume that she was in as such guardian, and that the infants were seized of the premises in consequence of her rightful possession, until she was guilty of an act which was of itself a disseizin of the infants by selling and assigning the premises in fee. (Podger’s case, 9 Coke’s Rep. 106, a. Goodtitle v. Newman, 3 Wils. 516. Bro. Abr. 235, tit. Descent, pl. 19. Byme v. Van Hoesen, 5 John. Rep. 66.) It could not, however, have altered Putnam’s legal rights in this case if she bad actually assumed the guardianship, and had sold and assigned the lease to him in the character of guardian for the children ; as by the common law neither the guardian in socage or any other guardian had any power or authority to surrender a lease in fee, or to lease the freehold estate of the ward for any longer time than during the probable continuance of the trust: that is, in the case of guardianship by will until the age of twenty-one, and of guardianship by socage until the age of fourteen. (Roe v. Hodgson, 2 Wilson, 129. Doe v. Bell, 5 Durn. & East, 471. Litt. § 123. Cary’s Comm, on Litt. 240.) Here the written instrument executed by the mother does not purport to be a surrender of the lease, but an assignment or conveyance from her in her character of administratrix. And as she had no power, either in her character of guardian or as administratrix, to make a surrender, the court cannot legally constrtie that into a surrender which upon its face purports to be an assignment of the lease and a sale of the leasehold premises. Even if parol evidence were admissible to contradict the terms of this instrument under seal, the proof shows that it was not intended to be a surrender of the lease in the character of guardian. And both parties, and probably the counsel for the widow who drew and witnessed the assignment, acted upon the erroneous supposition < that the personal representative of the decedent had a legal right to sell and assign the lease, without adverting to the distinction in this respect between a lease in fee and a lease for a term of years only.

Ari estate pur auter vie, which by the English law when limited to a man and his heirs' or devised by will went to .the heir or devisee as special occupant, was a descendible freehold. And as it appears from the case of Pierson v. Shore, cited by the complainant’s counsel from Atkyn’s Reports, that a .lease of such an estate was surrendered by the guardian and afterwards approved by Lord Hardwick, it is supposed that case is evidence of an authority on the part of the guardian to make such a surrender of a freehold estate. A much fuller statement both of the facts of that case and of the opinion of the' courtis, however, found in a more recent publication taken from Lord Hardwick’s own note book. (1 West’s Rep. 711, S. C.) And it there appears that the guardians did not consider themselves ’as legally authorized to surrender the lease, even for the purpose of claiming a renewal upon the falling in of one of the lives upon which the continuance of the lease depended, But as the guardians and trustees were invested with very extensive powers in relation to the management of the estate, although the testator probably through mere inadvertence had not authorized them to surrender the lease for the purpose of renewal, they did what Mr. Blake the counsel of Putnam suggested in this case as the only legal mode of revesting the legal title in the heir of the lessor: that is, they permitted the lessors to re-enter and forfeit the lease for the non-payment of rent, but under a verbal understanding that a new lease should afterwards be granted upon other lives, for the benefit of the infant, according to the' trusts of the will. And as Lord Hardwick considered this new lease a beneficial purchase, and as within the authority conferred by the will to make such purchases, he decided that the new lease, upon the death of the infant, went to his heirs on the part of the father, as a newly acquired estate; although the original lease came to the infant on the part of the mother. I have no doubt that in this case the assignment of the lease by Mrs. Ritchie was absolutely void at law, and that the legal estate in the premises is still in the defendants, It remains therefore, to be seen whether the complainant has any claim for relief in equity, under the circumstances disclosed in the pleadings and proofs.

There is a class of cases, where the fund belonging to the infant was in the legal power and disposition of the guardian, or where the legal estate was in trust so as to place it fully within the power of the court of chancery as the general guardian or protector of the rights of infants, in which the court has sanctioned acts of the guardian or trustee which were not strictly legal, but which were done in good faith for the benefit of the estate of the infant. There are also some cases of marriage settlements, which in England are governed by legal principles somewhat peculiar, where the court of chancery has interfered to compel an infant or his heirs to fulfil a marriage contract, entered into by such infant with the concurrence of his natural or legal guardians, and where the marriage has been consummated upon the faith of such an arrangement. With these exceptions I am not aware of any case in which this court has interfered to deprive an infant of the legal estate, which had been disposed of without authority during his infancy, unless it was upon some new equity arising out of his conduct, or his acquiescence in the contract or the receipt of the profits or proceeds of the contract, after he became of age. In the ease of Smith v. Low, (1 Atk, 489,) which is more fully reported by West, the decision is put mainly upon the ground of acquiescence; the infants having received the rent under the lease, made by the guardian for their benefit, for the period of ten years after the youngest of them was of full age.

In the present case there has been nothing in the conduct of any of the defendants, after they became acquainted with their legal right to the property, which can be considered as fraudulent towards the complainant or as an acquiescence in the assignment of the lease. Even if they had known all the facts of the case as he knew them, I have no right to presume these girls were better acquainted with the law than he was; and if both are chargeable with notice of the general law of the state, he knew the legal title was in the defendants notwithstanding the surrender. He should, therefore, have waited till they became of age, and then have ascertained from them whether they intended to sanction the giving of the lease, before he proceeded to erect a valuable house upon the premises. But if he really supposed the assignment gave him a legal title to the premises, as he. probably did, I may well suppose they were equally ignorant of their legal right to the lot, although some of them had heard that their father once owned it. From the evidence in the case I am satisfied they could not probably have known the facts upon which their rights depended until the summer of 1831, after the buildings had been erected. And they promptly asserted their claim immediately after the second sister became of age, in the fall of that year.

From the facts in this case, however, I have reason to believe the complainant has acted under a misapprehension of the legal effect of the assignment of the lease, although he has not been able to prove that he was advised by counsel that it would be valid and sufficient to reinvest him with the title; and that, under such misapprehension, he has made ■improvements which are far more valuable than the lot itself. The question therefore is, whether this court has thé power to prevent the defendants from taking the benefit of these improvements without making any compensation therefor.

Foreseeing the difficulties of doing justice between the parties consistent with the principles upon which this court. has hitherto acted, and not considering myself authorized to establish a new head of equity jurisdiction in the decision of this case, I intentionally refrained from deciding the motion for the dissolution of the injunction until the infant defendant had arrived at the age of 21, and have suspended the final decision upon the pleadings and proofs some considerable time since the hearing, hoping that one party or the other might propose some terms of compromise which would lead to a settlement of this unfortunate controversy. But as neither party appears to be disposed to yield any thing to the other, it becomes my duty to put an end to the suit, so far at least as the decision of this court can do it; leaving the party who is dissatisfied with that decision to a review of the same in the court of dernier resort.

As the lot was situated at the death of Ritchie, it would have been for the interest of the defendants to give up the lot, instead of applying their personal estate for the payment or extinguishment of the rent, if such personal estate instead of being wasted had been securely invested for their benefit; although the income and probable increase of the value of the lot, in the hands of a person who was in a situation to use it to advantage, by erecting a building thereon, would have been greater than the interest of the $300 required to be paid to extinguish the rent. The result proves, however, that it would in fact have been much better for the defendants that their personal estate in the hands of the administratrix should have been applied to the payment or extinction of the rent, instead of being wasted by her or her agent. The arrangement for giving up the lease being wholly unauthorized, the defendants are therefore entitled to the benefit of the natural increase in the value of the property since that time. I am not aware that the law of any civilized country has directly deprived the legal owner of property of the natural accession to the same; although the supreme court of the United States, in the case of Green v. Biddle, (8 Wheat. Rep. 1,) appear to have supposed that the occupying claimants’ law of Kentucky was calculated to produce that effect indirectly. But the rule of natural equity appears to be different in regard to industrial accessions, or permanent improvements made upon the property of another by a bona fide possessor. By the rules of the civil law, the possessor of the property of another who had erected buildings or made other improvements thereon in good faith, supposing himself to be the owner, was entitled to payment for such impropements, after deducting from the value thereof a fair compensation for the rents or use of the property during the time he occupied it. (Puff. B. 4, ch. 6, § 6. Code Nap. art. 555. 3 Partida, tit. 28, law 41. Bell’s Law of Scot. 130, art. 538. Rutherf. Inst. 71. Inst. of Law of Spain, 102.) This principle of natural equity has been adopted by the law of England and of this state to a limited extent, in the action for mesne profits ; where the bona fide possesor of property is permitted to offset, or recoupe in damages, the improvements he has made upon the land, to the extent of the value of the rents and profits during his occupany.

Here the use of the lot, subject to the widow’s right of dower which the complainant is equitably entitled to under her assignment of the lease although it could not be sold so as to pass the legal title before it was set off to her, is probably equal to two thirds of the rent reserved upon the lease. And if I felt myself authorized to introduce this principle of natural equity into the law of this court farther than it has yet been adopted here, I should direct a reference to a master to ascertain the present value of the lot exclusive of the buildings, subject to the widow’s dower and to the future rents exclusive of her share thereof, and . also to ascertain the present value of the buildings subject to the right of dower therein; and should give the defendants the right to elect, upon the coming in of the master’s report, whether they would retain the legal title to the lot subject to the rent and right of dower, and pay to the complainant the value of such improvements, or would release to him their legal estate in the premises upon being paid the value thereof, as thus ascertained, exclusive of the buildings.

This principle of natural equity is constantly acted upon in this court where the legal title is in the person who has made the improvements in good faith, and where the equitable title is in another who is obliged to resort to this court for relief. The court in such cases acts upon the principle that the party who comes here as a complainant, to ask equity, must himself be willing to do what is equitable. I have not, however, been able to find any case, either in this country or in England, wherein the court of chancery has assumed jurisdiction to give relief to a complainant, who has made improvements upon land the legal title to which was in the defendant, where there has been neither fraud or acquiescence on the part of the latter after he had knowledge of his legal rights. I do not, therefore, feel myself authorized to introduce a new principle into the law of this court, without the sanction of the legislature, which principle in its application to future cases might be productive of more injury than benefit. If it is desirable that such a principle should be introduced into the law of this state, for the purpose of giving the bona fide possessor a lien upon the legal title for the beneficial improvements he has made, it would probably be much better to give him a remedy by action at law, where both parties could have the benefit of a trial by jury, than to embarrass the title to real estate with the expense and delay of a protracted chancery suit in all such cases.

The only relief which I consider myself as authorized by the law of the land and the settled principles of this court to give to the complainant, is to protect him in his equitable right to the use of one third of the premises during the life of the mother of the defendants, he paying one third of the ground rent and taxes during that time; and also to restrain the defendants from taking possession of the other two thirds of the lot, under their recovery in the ejectment suit, until they shall have paid or tendered to him two thirds of the ground rents which have accrued since he took the assignment of the lease, with interest upon the respective payments from the time such rent became payable by the terms of the lease; and also his costs in this suit to be taxed The value of the improvements, or of the two thirds thereof, must very greatly exceed the use of the defendants’ share of the property and the whole costs of this litigation. The defendants, therefore, cannot affirm the surrender, or giving up of the lease, so far as to deprive the complainant of his equitable title to two thirds of the rent which they would have been compelled to pay if the surrender of their interest in the property had not been attempted to be made, and at the same time be allowed to disaffirm the transaction for the purpose of giving themselves the benefit of his improvements. If they disaffirm the act of their mother so far as relates to their interest in the property, the complainant must have the benefit of that disaffirmance pro tanto. And being therefore equitably entitled to two thirds of the rent, with a right of re-entry for the non-payment thereof, this court will not sutler him to be turned out of possession until the back rent is paid. And as the statute has left the subject of costs in the power of the court to be disposed of according to equity, where the complainant succeeds either wholly or in part, I feel myself fully justified in this case in giving to the complainant the costs in this court, as a kind of equitable offset against the valuable improvements which he has made upon the lot; which improvements the defendants will have the benefit of under this decree. The injunction must, therefore, be so far modified as to permit the defendants to take possession of two thirds of the premises, and to collect their costs in the ejectment suit, upon the payment, of such back rent and costs, and to take possession of the whole after the death of the mother. If the parties cannot agree upon an assignment of dower to the complainant as the equitable owner thereof, or to an alternate occupation of the whole premises, either party is to be at liberty to apply to the court for further directions upon the subject, upon petition and due notice to the adverse party.


text:
    Winne vs. Reynolds.
    1837. April 4.

    Where the vendor, upon a contract for the sale of a farm in the manor of Rensselaerwick which he held under a lease from V. R. at a nominal rent of a pound of wheat, containing a reservation of mines and minerals and water privileges and a preemptive right of purchase, covenanted to give to the purchaser a good and lawful deed of the premises; Held, that the reservation of the nominal rent was no objection to the title; and there being no mines or minerals or water privileges on the premises, and V. R. having agreed to relinquish liis preemptive right of purchase, of which the vendee had notice at the time of making his contract to purchase, a specific performance was decreed.
    The court of chancery will not decree the specific performance of a contract to purchase, where the vendor is unable to give a valid title to the premises, unless it appears from the contract that the understanding of the parties was that the purchaser should take the risk of the goodness of the title which the vendor was to give.
    But a specific performance will be decreed when the vendor is able to perform his agreement in substance, although there is a trifling variation in the description of the premises, or a trifling incumbrance on the title which cannot be removed, which is a proper subject of compensation to the purchaser.
    It is no valid objection to the title of a vendor that the conveyance under which he holds the premises contains a reservation of mines and minerals and water privileges, if from the evidence there is no reason to suppose there are any minerals or water privileges on the premises.
    As the law does not regard trifles, a reservation of a pepper corn, or any other rent which is merely nominal, is not a valid objection to the title of the vendor, who holds subject to the payment of such nominal rent.
    But a restriction'upon the power of alienation, in the nature of a quarter sale or other substantial fine upon alienation, or the reservation to the original owner of a preemptive right of purchase for a certain length of time, is an incumbrance which diminishes the value of the title. And a purchaser who has contracted to purchase the premises without notice of the existence of such an incumbrance, will not be compelled to take the premises subject thereto without a proper allowance therefor.
    Where there are trifling incumbrances upon the title, which were known to the vendee at the time he contracted to purchase, a specific performance will be decreed without compensation, although byamistakeof the scrivener they were not excepted in the written contract of sale.
    Whether a covenant by the vendor to give to the purchser a good and lawful deed of the premises relates to the form of the deed or to the goodness of the title conveyed thereby ? Qucere.

    This was an appeal from a decree of the vice chancellor of the third circuit. The complainant was the owner of a farm of 127 acres in the county of Albany, under a lease in fee from Stephen Van Rensselaer, at a nominal rent of one pound of wheat annually. The lease also was in the usual form of the Patroon’s modern leases, containing a reservation of mines and minerals and streams of water and water privileges, with the preemptive right of purchase, and the payment of a year’s rent upon the purchase by any other person. In March, 1834, the complainant entered into an agreement with the defendant to sell him the farm on the first of April, for the price of #2700; of which sum #800 was to be paid down and the residue secured by bond and mortgage. While the parties were negotiating for the sale and purchase of the farm and before the bargain was concluded, the complainant, upon an inquiry as to what title he would give, said he would give a deed as good as any of the Van Rensselaer deeds were ; and he thereupon showed to the defendant the lease from Van Rensselaer under which he held the farm. At his request the complainant also commenced reading the lease, and read that part which contained the reservations of mines, water privileges, &c, and of the nominal rent, when the defendant told him it was unnecessary to read any further as he knew how the Van Rensselaer deeds run. By the verbal agreement between the parties the defendant was to have the privilege of paying the residue of the purchase money, except the #800 which was to be paid on the first of April, in ten annual payments with annual interest. But in reducing the agreement to writing it was so drawn by the scrivener that the amount to be secured by bond and mortgage would become payable with interest whenever the vendor might think proper to demand it. And the complainant was by the terms of the written agreement to convey to the defendant by a good and lawful deed, on the first of April: although by the verbal agreement the deed was to be subject to the conditions in the lease from Van Rensselaer. The parties, at the time the written agreement was executed, verbally agreed to meet at the store of J. L. Winne, on the first of April, to execute the writings to complete the sale and transfer of the farm ; and that the scrivener who had tiraw.il the written agreement and witnessed the same, should prepare the deed and bond and mortgage which were then to be executed. The writings wefe prepared accordingly, and on the first of April the complainant signed and acknowledged a deed conveying the farm to the defendant, subject to the terms and conditions of the lease from Van Rensselaer, and with the usual covenant of warranty. He went to the place appointed for the consummation of the sale according to the agreement; and not finding the defendant there he went to his house for the purpose of making a tender of the deed, but the defendant kept out of the way. The agent of the Patroon waived the receipt of any back rent, as the rent was merely nominal and no account had been kept upon the books relative theretothe agent also dispensed with the preemption offer to Van Rensselaer; which the Patroon afterwards ratified by a writing signed by him. There were no mines or minerals upon the farm, and no stream of water except what ran in an artificial ditch dug for the purpose of draining the land in wet seasons. At the hearing the defendant’s counsel moved to expunge a part of the complainant’s testimony. But the notice of the application was not given in time and the motion was denied with costs. And the vice chancellor thereupon decreed a specific performance of the written agreement; with the right to the defendant to elect whether to have his bond and mortgage payable on demand or in ten annual payments from the first of April, 1834. He also declared and decreed that the deed which the complainant signed and acknowledged on the day when the writings were to have been executed, and which he then attempted to deliver, was such a deed as the defendant had no right under the agreement to refuse; and that such deed be delivered to the defendant upon the performance of his part of the agreement. The defendant was also charged with the costs of the litigation. From the whole of the vice chancellor’s decision, as well upon the motion to suppress testimony as upon the merits of the case, the defendant appealed.

      J. King & W. W. Frothingham, for the appellant.

      J. Rhoades, for the respondent.
   The Chancellor.

There was no reason whatever for appealing from the decision upon the motion to suppress testimony.. Only two days notice of the application was given when the rules of the court required four. This of itself would have been a sufficient reason for denying the motion even if the testimony had been irrelevant. Most of the evidence objected to, however, was proper, upon the supposition that the legal effect of the written instrument was as contended for by the defendant’s counsel; as it went to show that there was no difficulty in obtaining a release from the patroon so as to" make a perfect title, if the defendant had attended on the first of April, according to his agreement, and had put his refusal to complete the purchase upon that ground. Time was not made a material part of the contract. And if the agreement had in terms required the complainant to give a perfect title in fee' of the premises, free from every condition whatever, this court would have decreed a specific performance upon his obtaining a full release of all the covenants and conditions in the lease from Van Rensselaer, This testimony, tended to prove that the defendant was acting in bad faith, by attempting to take advantage of what he supposed to be a technical defect in the title, which was not expressly provided for in the written agreement, although perfectly understood by both parties. If the decree, therefore, had directed a specific performance only upon condition that the complainant procured a full release from the patroon, this evidence was sufficient to show that the defendant should be charged with the payment of the costs. Had he intended to avail himself of this technical objéction, and at the ' same time to save himself the costs of a useless litigation* he should have attended on the first of April at the place appointed and insisted upon a strict performance of the written contract notwithstanding the parol understanding of the .parties that he was tó take the title as conveyed to the complainant by Van Rensselaer. If he had done this and the vendor had not been able to procure a release from the patroon so as to be able to make a perfect title free from all reservations or conditions within a reasonable time, the complainant would have proceeded in this suit at the peril of costs ; although he had finally succeeded in consequence of being able to make a good title at the time of the decree. As it is, however, the appellant is only entitled to defend himself here upon his strict legal rights; as this testimony shows that he has no equity in his defence, and that the respondent is entitled to a decree for a specific performance, even upon the appellant’s construction of the agreement, if the release of Van Rensselaer can now be obtained. The Only question therefore, is, whether the vice chancellor should, upon this evidence, have directed a reference to a master to ascertain whether such a release could not be obtained so as to enable the complainant to make a perfect title, or whether he was right in decreeing that the deed of the first of April, 1834, was such an one as the defendant was bound to accept without such a release; as from the evidence it may fairly be presumed that the patroon would execute such a release without hesitation if it should be necessary. He would unquestionably have done it at the date of the deed if the defendant had then put his refusal to perform the agreement on the ground which he afterwards took in his answer.

In the case of Gazely v. Price, (16 John. Rep. 268,) the former supreme court of this state decided, how correctly I will not undertake to say, that a covenant to give to the purchaser a good and sufficient deed of premises contracted to be sold, was to be considered as complied with, at law, by the execution of a conveyance good in point of law to pass to the purchaser whatever title the vendor had in the premises sold. And that court adhered to such decision in the subsequent case of Parker v. Parmalee, (20 Idem, 130,) where the covenant was to execute a good warrantee deed of conveyance of the lot. Without stopping to inquire whether this is the correct construction of such a covenant, according to the intention of the parties, where there is nothing to show that the terms of the covenant were intended to apply to the form of the conveyance and not to the sufficiency or validity of the title, it may be considered as a settled principle of the court of chancery that it will not lend its aid to compel a purchaser to take a conveyance which does not convey such a title as he supposed he was contracting for at the time he entered into the agreement; unless there is something in the case to show that it was the understanding of the parties that he was to run the risk as to the validity of the vendor’s title. But a specific performance may be decreed if the complainant is able to perform his agreement in substance ; although there is a trifling variation in the description of the property, or a trifling incumbrance on the title, which cannot be removed but which may be the subject of compensation. (Magennis v. Fallon, 2 Moll. Rep. 588. King v. Bardean and wife, 6 John. Ch. 38.)

The reservation in the patroon’s lease to Winne of mines, minerals and streams of water, &c. was not intended to cover any thing of the kind which was supposed actually to exist upon or in this land. But this reservation, as well as the nominal rent and the pre-emptive right of purchase which is contained therein, arose from the circumstance of the grantor’s agent taking a blank lease to fill up for the purpose of making the conveyance, and to save himself the trouble of writing an absolute deed. The legal construction of the instrument, however, must be determined from its actual contents. And I only refer to these circumstances to show why such reservations of minerals and water privileges are found in the conveyance of a lot of land upon which nothing of that kind was supposed to exist. There is no evidence to show the existence of minerals upon the lot; and as the testimony shows there were no such streams or runs of water as contemplated by this reservation, the reservation itself forms no valid objection whatever to the complainant’s title. The defendant might as well object to the title on the ground that the original grant from the crown contained a reservation of the royal mines of gold and silver, which may, by a bare possibility be contained in the bowels of the earth within the limits of this farm. The reservation and provisions of the lease when examined together,* show clearly that the runs and streams of water, and the lands under the same, which were intended to be covered or included in such reservation, were only such natural streams as were susceptible of a beneficial use for milling purposes. The artificial ditch which the owner has made for the purpose of draining his land, is not, therefore, within the reservation, even if the waters which run in it at some seasons of year were capable of being used for manufacturing and other hydraulic purposes. The objections to the title, if any, must, therefore, rest upon the grantor’s preemptive right of purchase for twenty-one days after notice; and the reservation of the nominal rent of one sixtieth part of a bushel of wheat.

As the law does not regard trifles, the reservation of a pepper corn rent, or any thing else which is merely nominal, is not an objection to the title which could justify a court in refusing a specific performance, even where the defendant had contracted to purchase without any notice that such nominal rent was reserved. And the year’s rent, or one pound of wheat which is reserved in the nature of a fine upon the alienation of the property, is, if possible, of still less consequence than the annual reservation of a pepper corn as rent upon a lease in fee. The pre-emptive right of purchase, however, is a partial restriction upon the power of alienation. It is a remnant of feudal vassalage which a freeman would not be willing to have his land subjected to, although the actual injury to the owner of the land would amount to very little in a pecuniary view. In this case, therefore, if the defendant had in terms contracted for the conveyance of a perfect title, without notice of the existence of such a clause in the lease, I should not compel him to take the title of the complainant without compensation for this injury, unless the vendor should be able to procure a release of this condition so as to make a clear title.

There is no doubt, however, from the testimony, that the defendant knew of the existence of this covenant in the lease at the time he contracted to purchase the land. And he either expected to take the title subject to the conditions of the patroon’s conveyance, or he intended to commit a fraud upon the complainant by insisting upon this technical objection to the title afterwards. It appears that the conveyance to Winne, except as to the amount of rent, was in the usual form of the patroon’s conveyances for lands in his manor. And as the defendant saw it was one of the printed leases, and according to his own declaration knew how those conveyances usually ran, he must have known, or at least supposed, it contained this pre-emption clause. The scrivener who drew the agreement of the 6th March, also says that he was to draw the deed to Winne subject to the conditions in the patroon’s deed. The case, therefore, comes directly within the principle of the decision of the late Chancellor Kent, in Ten Broeck v. Livingston, (1 John. Ch. Rep. 357.) There a specific performance was decreed, although there was a rent reserved upon the premises, not mentioned in the agreement; but of which the defendant had notice previous to his entering into the agreement. It is evident that the defendant, under the decree in this case, will have the same title which he expected to obtain when he entered into this contract with the complainant. And as the evidence of the previous knowledge of the defendant of the state of the title does not contradict any thing contained in the agreement itself, the vice chancellor was right in decreeing a specific performance without requiring the complainant to make any compensation for the supposed defect in that title, or requiring him to procure a release from the patroon.

The decree appealed from must therefore be affirmed with costs.