text:
    Devanbagh vs. Devanbagh.
    The court will not annul a marriage on the ground of impotence where there is a probability of capacity, and where from the testimony in the case there is good reason to believe that the disability of the defendant may be removed by a slight surgical operation, without any danger whatever to the subject of such operation.
    A mere doubt as to what would be the result of a surgical operation upon an uncommonly dense and tenacious hymenial membrane, where there does not appear to be any other incapacity or mal-formation, is not sufficient to justify a decree of nullity ; as cases of that kind belong to the class of temporary and curable incapacities.
    The court has no power to annul a marriage contract, on the ground of physical incapacity, except in a case of incurable impotence. The fact that the defendant is unwilling to cohabit with the complainant, and therefore refuses to submit to a slight surgical operation for the purpose of removing a temporary disability, is not a ground for a decree of nullity.

      1836. September 20.
    This was a suit to annul a marriage on account of the alleged impotence of the defendant. The bill having been taken as confessed, it was referred to a master to take proof of the allegations in the complainant’s bill, and examined the defendant on oath in relation thereto* and to inquire and report whether, at the time of the solemnization of the marriage, the defendant Was and still continued to be physically incompetent, by reason of incurable impotence. (See 5 Paige’s Rep» 554* & Ct) The cause now came on to be heard, ex parte, upon the master’s report of the testimony produced before him on the reference, and the examination of the defendant upon oaths

      D. P. Corey, for the complainant, submitted the case without arguments.
   The Chancellor.

When this case' was formerly before me, upon the application for the reference to the master, and for special directions as to the nature and the kind of proofs which he was to receive to establish the fact of the alleged impotence, I arrived at the conclusion that to authorize this court* or any other tribunal, to annul a marriage on the ground of the physical incapacity of one of the parties, there must be satisfactory proof not only of the existence of the alleged incapacity at the time of the marriage, but that it must also be such an incapacity as was incurable. In other words, a physical incapacity which tiould not be remedied or removed by proper medical treatment, or by a surgical operation. And from an examination of the testimony which is annexed to the master’s report here, I have not been able to bring my mind to the conclusion that this is a case of incurable impotence which can justify me in pronouncing the marriage between these parties a nullity.

From the defendant’s oath, as well as from the medical examination which has béen had by Dr. Payne the witness, there appears to be no doubt of the fact that the wife is still virgo intacta. And as the doctor states that the hymen is unusually firm, dense and strong, it is probable that it could not have been broken by the natural means, even if the marriage had occurred at a much earlier period of their lives, when both parties possessed all the vigor of youth. But from the testimony in this case I think there is good reason for believing that this disability is capable of being wholly removed by a slight surgical operation, and without the least possible danger to the defendant. And if there is a probability of capacity the court cannot annul the marriage. (2 Lee’s Eccl. Rep. 586.) It appears that the hymen is not imperforate: and from the testimony of the examining physician I do not see that there is the slightest reason for believing that the vagina is impervious, or that there is any other mal-formation of the genital organs. I also infer,: from what is stated, that there have been regular caíame* nial discharges; and the defendant appears to have had no suspicion that she was not like other women until some time after the marriage, The respectable physician who has been called by the complainant as a witness in this case, does not everz express a belief that the disability might not be cured by a proper surgical operation, although he says the result is doubtful. And from an examination of the numerous authorities collected by Dr. Beck, in his valuable treatise on medical jurisprudence, I thizik no respectable and well informed physician would hazard his reputation, as a professional man, by pronouncing this a case of incurable impotence, from the testimony now before me. A mere doubt as to what would be the result of a surgical operation upon a dense and uncommonly tenacious hymeziial membrane, where there is no evidence of aziy other incapacity or mal-formation, is not sufficient to justify a decree of nullity ; as cases of that kind are, by medical writers, considered as belonging to the class of temporary and curable in-capacities. (See 1 Beck’s Med. Jur. 85.)

The fact that the defendant has no wish to return to reside with her husband, and therefore will not consent to the slight surgical operation which may perhaps be necessazy to remove the incapacity, is no ground for annulling the mai’riage, any more than if she refused to cohabit with him when no pretence of disability existed. That is a matter to be settled with her own conscience and her lawful hus* band, as this court has no jurisdiction in any case to enforce the performance of her marriage vows. If this is not a case of incurable impotence, then the court has no power to dissolve the marriage contract between the parties, for any other cause than that of adultery.

The complainant’s bill must therefore be dismissed*


source: Caselaw Access Project

author: The Chancellor.

license: Public Domain

text:
    Corning vs. Baxter and others.
    1836. September 20.
    There can be no decree made against a non-resident defendant who does not appear, and who has not been personally served with process, but upon the report of a master as to the truth of the allegations contained in the bill. And where the object of the suit is to obtain payment of money due from the absentee, or which is a lien upon property in which he has an interest, the complainant must also be examined as to any payments whiph may have been made.
    The reference and examination as to the rights of an absentee must be had, although there are other defendants who appear and contest the claim of the complainant, and who have a common interest with such absentee it? the defence of the suit.
    An order of reference as to the rights of an absent defendant may be entered of course, under the 25th rule, at any time after the bill has been taken as confessed against him, although there are other defendants who appear and contest the suit.
    But an order of course in a mortgage case, under the 134th rule, to ascertain the rights ofinfants orabsentees and also to compute the amount due upon the mortgage, cannot be entered if any of the' defendants have appeared and contest the complainant’s rights as claimed by his bill.
    Where a reference to make preliminary inquiries preparatory to the hearing of the cause is necessary or proper, in a case in which the rules do not authorize the entry of a common order, where such reference is not assented to by alltbeparties interested therein, a special application must be made to the court, upon due notice to all such parties as have appeared in' the suit.
    The bill in this cause was filed to foreclose a mortgage, given by D. Baxter one of the defendants, and to set aside a release of the equity of redemption as to a part of the mortgaged premises, on the ground that such release had been fraudulently obtained from the complainant; and J. Baxter, a subsequent grantee of the premises, and several judgment creditors of the mortgagor were made defendants. The bill was taken as confessed as to all the defendants except J. Baxter, who appeared and answered. A replication was filed to his answer, and the cause, as to him, was in readiness for hearing on pleadings and proofs. The morígagor and three of the other defendants who had not appeared in the suit being proceeded against as absentees, the complainant applied for an order of reference to a master, as against the absentees, to take proof of the facts and circumstances stated in the bill, and to examine the complainant on oath as to any payments which might have been made to him on account of the debt secured by the mortgage and for liberty to use upon such reference the depositions which had been taken before the examiner. The application was opposed, by the counsel of J. Baxter, on the ground that no such reference was necessary where the cause was to be heard upon pleadings and proofs as to one or more of the defendants ; or if such a reference was proper, that it could not be had until the cause had been brought to a hearing as to the defendant who had appeared and answered,

      Ira Harris, for the complainant,

      F. G. Jewett, for the defendant, J. Baxter.
   The Chancellor.

There can be no decree against a non-resident defendant who has not been personally served with process, and who does not appear in the cause, except upon the report of a master as to the truth of the several facts and circumstances stated in the bill. And if the bill is filed to obtain payment or satisfaction of a sum of money alleged to be due from the absentee, or to be a lien upon property in which the absentee has an interest, as a subsequent incumbrancer or otherwise, the complainant must also be examined on oath as to any payments which may have been made. (2 R. S. 186, § 126, 128.) This reference and examination must be had, as to the rights of the absent defendants, although there are other defendants in the suit who appear and contest the complainant’s claims. and who have a common interest with the absentees in the defence of the suit.

It is not absolutely necessary that this reference should be had before the hearing of the cause as against the defendants who have appeared and answered; as the court may, in its discretion, direct the reference at any time before a final decree. But as it is most convenient in all cases that this reference should be had before the hearing as to the defendants who have appeared, the 35th rule authorizes the complainant to enter an order of course for such a reference, at any time after the bill has been taken as confessed against the absentees. An order of course may be entered under this rule although there are other defendants who appear and contest the suit. The order of reference to which Mr. Hoffman has appended the note to which the court was referred on the argument, (Hoff. Pr. App. No. 79,) is not a simple reference, under the 35th rule, to examine the complainant on oath and to take proof of the facts and circumstances stated in the bill. But it is a precedent of an order of course under the provisions of the 134th rule; and it embraces other matters in which the defendants who have appeared and contested the suit have a common interest with the absentees, which, in many cases, are not the proper subjects of a preliminary reference, before the rights of the defendants who have appeared and answered have been determined upon the hearing. The object of the 134th rule was to authorize a preliminary reference as of course, in mortgage cases, to compute the amount due, where the rights of the complainant, as stated in the bill, were not denied or contested by either of the defendants ■; and, whenever such a reference was proper, to combine in the same order of reference all other preliminary inquiries which might be necessary to enable the court to make a final and perfect decree upon the hearing, so far as the rights of the complainant were concerned. Where any of the defendants contest the complainant’s rights as stated in the bill, an order of course cannot, therefore, be entered under that rule. But this does not deprive the complainant of his right to an order of course, under the 35th rule, for a reference to make the preliminary inquiries contemplated by the statute relative to suits against absentees. There are also many other cases, not coming within either of these rules, in which an order of reference to make preliminary inquiries, preparatory to a hearing of the cause upon the merits, may be proper. But in all such cases, if the reference is not an order of course under some other rule of the court and is not consented to by all parties interested therein, a special application must be made to the chancellor or vice chancellor before whom the suit is pending, upon due notice to such of the parties in the cause as have appeared and are interested in the subject matter of such reference.

In the present case the defendant who has appeared and answered has no interest whatever in the reference asked for, so far as relates to the rights of the absent defendants. And if this was the only object of the reference it would not have been necessary to give notice of the application to the defendant who had appeared; as the only reason for a special application to the court would have been to get permission to use the depositions, taken before the examiner, as evidence against the absentees on the reference.

The complainant, however, asks for permission to insert in the order of reference a direction to the master to compute the amount due upon the mortgage. And as this amount must be ascertained, even if the defendant who has answered succeeds in defeating the claim of the complainant as to that part of the mortgaged premises which was the subject of the release, I see no objection to the reference to make that preliminary inquiry in this stage of the cause, It will also save the extra expense of a second reference to compute the amount due.

The order of reference must, therefore, be entered as asked for by the complainant in his petition; but with leave to the defendant to apply to dismiss the bill for want of prosecution if the complainant neglects to procure the master’s report without unnecessary delay,


text:
    Saxton vs. Wyckoff and others.
    1836. October 4.
    An injunction ought not to be granted to stay a party from making a summary application to the supreme court to compel an attorney of that court to pay over monies which the applicant alleges has received by the complainant for his use in the character of attorney.
    This was an application to dissolve an injunction, which had the effect of preventing the defendants from applying to the supreme court for an order to compel the complainant to pay over monies which he had received or collected as an attorney of that court.

      J. Rhoades, for the defendants.

      J. L. Tillinghast, for the complainant.
   The Chancellor.

An injunction ought not to be granted to stay the defendant from making an application to the equitable powers of the supreme court, to compel the plaintiff to pay over monies received by him in the character of an attorney of that court. The court before whom the application was intended to be made was perfectly competent to give to the complainant any equitable relief to which he might be entitled. And there is nothing in the bill in this case to show that any discovery is necessary to enable that court to do perfect justice between the parties. The supreme court also is the appropriate tribunal to settle a controversy between an attorney of that court and his client, in relation to the duties of the former in his character of an officer of that court.

In this case also it was a gross imposition upon the officer to whom the ex parte application for an injunction was made, to state a case in his bill which was intended to deceive such officer, by alleging that proceedings had been commenced by the defendant in the supreme court for the recovery of money, and that no issue had been joined or verdict or judgment rendered in that court. It is very evident that the bill was thus artfully drawn for the mere purpose of inducing the officer who allowed the injunction to suppose it was an ordinary proceeding by suit in that court instead of a summary application against the complainant in bis character of attorney. This injunction was also irregular in not having the clause inserted therein to enable the defendant to proceed to a judgment or decision in the supreme court. It must therefore be dissolved with costs.


text:
    In the matter of Easton’s will.
    A commission to take proof of a will of real estate can only be gfinted upon the application of a person interested in the establishment of the will. It should therefore appear from the bill, or petition, that the decedent left real property in this state, in which the applicant for such commission has some legal or beneficial interest under the alleged will.
    To authorize the chancellor to issue a commission to make probate of a will of personal property, the applicant must show that the decedent at his death left assets in this state, or that assets have come into this state since his death. The bill or petition must also state the necessary facts to show what surrogate has jurisdiction to grant letters testamentary, or of administration, so as to enable the chancellor, after the will is proved, to send the mandate to the proper surrogate for that purpose.
    The prayer of the bill or petition upon which an application for a commission is made, should show whether the will is to be proved as a will of real estate, or as a will of personal property, or as a will of both.
    Where the will is to be proved as a will of real estate, the applicant should, in his bill or petition state, either positively or upon information and belief, that the instrument propounded is the last will of the decedent, and was executed in due form of law to pass real property in this state. He must also show who are the legal heirs, to whom by the laws of this state such real property would have descended if the decedent had died intestate, and the names and residences of such heirs, so far as the same can be ascertained, to enable the chancellor to determine what nolice should be given to them of the proceedings to prove the will. And if the decedent left no heir capable of inheriting lands in this state, that fact should be shown.
    When the instrument propounded is to be proved as a will both of real and personal estate, or as a will of personal estate mérely, if the decedent at the time of his death was not domiciled in this state, or if the will was executed out of the state, the domicil of the decedent at the time of his death should be stated ; and also the namesand residences of hisnext of kin, or of those who in case of intestacy would have been entitled to the succession to his personal estate according to the law of his domicil, so far as the same can be ascertained.

      1836. October 4.

    And where the will of personal estate was executed in any other state of country, by a decedent who was not a citizen and inhabitant of this state, the applicant must show that the instrument propounded as a will was duly executed, so as to make a valid testamentary disposition of the decedent’s personal property, according to the law of the place where he was domiciled and where such will was made.
    A Scotch deed of disposition and settlement, if duly executed as a testamentary disposition of the testator’s property according to the laws of Scotland, and in the presence of two" witnesses as required by our laws, is a valid will of the testator’s real and personal property in this state.
    This was an application for a commission to take proof of an instrument executed in Scotland, in 1835, propounded as the last will and testament of William Easton, deceased. The petition was presented by a sister of the decedent, residing in the state of New-Jersey, in whose favor a beneficial provision was made by the instrument propounded as a will; in which petition her husband also joined. From the petition it appeared that the decedent once lived in this state, but that he died in Scotland in 1835 ; that at the time of his death he had a father living in Scotland, and that the executors or trustees in the instrument propounded as his will, also resided there ; and that he also left several brothers and sisters, some of whom resided in this country and some abroad. But the petition did not state whether all or' any of the relatives of the decedent, or the trustees to whom his real and personal estate was conveyed in trust, were citizens of the United States, or otherwise capable of taking lands by descent or devise according to the laws- of this state. The object of the petitioners was to have the instrument which was propounded by them proved and es-tablished, as a will of personal estate as well a devise of real property. But they did not allege in their petition that the decedent, at the time of executing the instrument propounded, or at his death, was a citizen of this state or domiciled here ; neither was it stated in the petition that the alleged will was executed in such a manner as to render it a valid will of personal estate according to the laws of Scotland, And there was no allegation in the petition that the decedent left any assets here, or that he left any real property. m this state, in which the petitioners were interested under the provisions of the alleged will.

      Azor Taber, for the petitioners.
   The Chancellor.

This petition is not only informal, but is so defective in substance that no order can be made thereon, for the taking of testimony to establish the instrument propounded, either as a will of real or personal estate. A commission to take the proof of a will of real estate can only be issued upon the bill or petition of some person interested in the establishment of the will. It should therefore distinctly appear that the decedent left real property, in this state, in which the petitioner has some legal or beneficial interest under the alleged will. These petitioners do not appear to have any such interest in the lands of the decedent, in the county of Delaware, which the trustees are directed to convey to the brother who resides in that county. If that brother wishes to establish the instrument propounded, as a will of the lands in which he has a beneficial interest, he should have presented a petition himself or have joined in this petition. Or if the decedent left any lands in this state in which these petitioners have a beneficial interest under this instrument, that fact should have been distinctly stated in the petition.

The petitioners are unquestionably entitled to a beneficial interest in the personal property of the decedent, under the instrument propounded, wherever that property is situated. But to entitle them to make probate of the will here, under a commission to be issued by this court, they must show by their petition that the decedent left assets in this state at the time of his death, or that assets have come into this state since that event; as this court is only authorized to make a decree for establishing a will of personal estate, where there are assets of the testator in this state. (3 R. S. App. 149, § 67.) The petitioners should also state the necessary facts to show what surrogate has jurisdiction to grant letters testamentary or of administration in the case, according to the provisions of the revised statutes; (2 R. S, 60, § 23 ;) as the decree of this court, establishing a will of personal estate, must be re-chancellor to the surrogate having such juris diction, with directions to such surrogate to issue letters testamentary, or of administration with the will annexed, thereon. In all such cases the question of jurisdiction must be ascertained and determined by this court, so that the mandate may be sent to the proper surrogate having jurisdiction of the case according to such determination and decision of the chancellor.

Where the instrument is to be proved as a will of real property merely, the prayer of the petition should be framed accordingly; and the petitioner should state, either positively or upon information and belief, that the instrument propounded is the, last will of the decedent, and that it was executed in due form of law to pass real property within this state. The petitioner should also state, according to the best of his knowledge, information and belief, who are the legal heirs of the decedent, to whom such real estate would have descended, according to the laws of this state,if a devise thereof had not been made, and the names and residences of such heirs, so far as he is able to ascertain the same; to enable the court properly to exercise its discretionary power of determining whether any and what notice shall be given to such heirs of the proceedings, that they may have an opportunity to oppose the proving of the supposed will. And if the decedent left no heir at law, or if all his relatives or heirs were aliens and incapable of inheriting lands within this state, that fact should be stated in the petition; so that proper notice of the proceedings to prove the will may be given to the attorney general. Where the instrument propounded is sought to be established as a will of personal estate only, or as a will both of real and personal property, the prayer of the petition should be framed accordingly; and the necessary facts should be stated in the petition to show the petitioner’s interest in the personal estate under the will, or in both the real and personal estate, as the case may be. And if the decedent was not domiciled in this state at the time of his death, or if the will was executed out of the state, the domicil of the decedent should be stated in the petition 5 and the names and residences of the next of kin, or the other persons entitled to the succession in case of intestacy according to the lex domicilii, should also be stated, so far as the petitioner is able to ascertain the same. And where the alleged will has been executed in any other state or country, by a decedent who was not a citizen and inhabitant of this state, the petitioner must show by his petition that the instrument propounded has been duly executed, as a good and valid testamentary disposition of the decedent’s personal property, according to the laws of the state or country where he was domiciled, and where such alleged will was made, or it cannot be admitted to probate here. (See 3 R. S. App. 149, § 68, 69; Story’s Confl. of Laws, 394, § 468.)

If the testator, in the present case, was actually domiciled here at the time of his death, and if any of his devisees were capable of taking and holding real property according to the laws of this state, I see no objection to the validity of the instrument propounded, as a will both of real and personal estate, so far as the mere question of probate is concerned ; though there may be some doubt as to the validity of a part of the trusts of the will, under the provisions of our revised statutes. This instrument is not in the usual form in which testamentary dispositions of property arc made in this state; and if it had been drawn here, it might have been more properly considered as a revocable deed of trust, both as to the real and personal property of the decedent. But it was unquestionably intended as a mortis causa disposition of the decedent’s whole estate, in the nature of a will. By the laws of Scotland, where this instrument was executed, a decedent who has a wife or children may, by a will in writing, dispose of a certain portion of his moveable property, and if he has neither wife or child, may dispose of the whole of the same ; which will may be holographic, or it may be written by another person if read over to the testator and executed by him in the presence of a notary or a clergyman and two witnesses. But the common law of Scotland did not permit heritable property to be alienated or disposed of by will. And the instrument propounded in this case is one which was devised by the ®cott':s^ lawyers to enable a person to provide for the disposition of his real and personal property, after his death, in the nature of a will; which instrument is technically termed a deed of disposition and settlement. This quasi will must be made by a liegepoustie instrument, as contradistinguished from a death bed conveyance, granting the heritage either directly to the persons who are the objects of the grantor’s intended posthumous bounty, or to trustees for their use. It usually reserves to the grantor his life rent, or life estate in the property, and the power of revoking the deed upon a death bed or otherwise ; and the deed or instrument also contains a clause dispensing with the actual delivery thereof during the lifetime of the grantor. The technical defects of this quasi will as a conveyance of real estate are supplied by the courts, after the death of the testator, if necessary, by a proceeding against the heir at law in the nature of a bill in equity to supply the defective execution of a power; which proceeding is called, by the Scottish lawyers, an adjudication in implement. The instrument propounded by these petitioners, therefore, is for every substantial purpose a will; and if duly executed, it should in this state be considered as a testamentary disposition both of the real and personal property of the decedent. The parties interested therein 'respectively, therefore, upon the presentation of a proper petition for that purpose to the chancellor, may have a commission to take the necessary proofs to authenticate and establish it as a will of either species of property here, and to ascertain the necessary facts to authorize probate of this authenticated copy thereof, taken from the records of the lords of council and of session where the original instrument is deposited.

It may be proper, however, to suggest that the codicil by which £25 sterling is given to the trustees, in the name of .a fee for management, does not appear to have been executed in the presence of two witnesses, so as to make it valid as a will of real or personal estate by our laws; neither is it alleged to be holographic, so as to render it valid as a testamentary disposition of personal estate by the law's of Scotland.

This petition must be dismissed. But it must be without prejudice to the right of the petitioners to present a new petition, propounding the authenticated copy of this deed of disposition and settlement as a will of real and personal property situated or being within this state, and for a commission to take proof of the necessary facts to establish the same, as a will of both or of either species of property which the decedent may have left here at the time of his death.


author:
      W. T. M’Coun, V. C.
      The Chancellor.

text:
    Champlin and others vs. Laytin and others. Laytin vs. Champlin and others.
    1836. October 4.
    The rules that a purchaser is, in equity, chargeable with constructive notice of facts and circumstances which cameto the knowledge of his attorney or agent for the purchase, or in the examination'of the title, and that notice of a deed is a constructive notice of the contents thereof, do not apply to controversies between the vendor and purchaser in relation to their own rights. These rules as to constructive notice, are only adopted by the court of chancery for the protection of the prior equitable rights of third persons, against subsequent purchasers who claim in hostility to such rights.
    Where a vendor, under a misapprehension of his legal rights, sold a lot of land which by the terms of the conveyances of adjoining lots to prior purchasers had been constructively dedicated for the purposes of a public street, and represented that the lot would not be taken for a street without paying to the vendee the full value thereof, but without communicating the facts upon which the legal question as to the rights of the prior purchasers depended ; Held that the vendee was entitled to relief against a bond and mortgage given by him for the purchase money ; the lot being in fact worth nothing at the time of his purchase.
    Whether a party to a contract can in any case be relieved from the same on account of a mistake in matter of law merely ? Quosre.
    These cases came before the chancellor upon an appeal from a decree of the vice chancellor of the first circuit. The facts in the case sufficiently appear from the following opinion which was delivered by the vice chancellor at the time of making the decree appealed from.
   W. T. M’Coun, V. C.

The bill in the first cause is for a foreclosure and sale under a mortgage and for a decree over against Laytin the mortgagor, for any deficiency. The second suit is upon a cross bill by the mortgagor to have the mortgage delivered up and cancelled, and for a return of the money paid by him on account of the purchase of the mortgaged premises, at the time he gave the mortgage for the balance. To the cross bill the defendants therein interposed a plea in the first instance, which was overruled. They then answered, and both causes have been heard together upon pleadings and proofs.

The following facts present the questions to be considered. On the 24th of January, 1828, the complainants in the first suit and defendants in the second, as executors and trustees of the estate of Elizabeth De Peyster, deceased, offered for sale at auction under a power contained in her will, six lots of ground belonging to her estate, three of the lots represented on a map exhibited at the time of the sale as fronting to Broadway between Fourth and Sixth-streets, and the other three adjoining the rear and fronting to Mercer-street. William Laytin became the purchaser of two of the lots, one fronting to Broadway, at the price of $3000, and the other immediately in the rear for the sum of $1300, and paid one half of the purchase money down, and to secure the residue, gave his two bonds and the mortgages in question upon the two lots respectively.

The deeds executed by the executors to Laytin, the purchaser, for the respective lots, state, by way of recital, that Mrs. De Peyster, in her life time and at the time of her death, was seized in fee of the lots, and they purport to grant and convey the same in fee, and all the estate, right, title and interest, which Mrs. De Peyster had at the time of her death, and which the executors as grantors then had by virtue of the will or otherwise. Each deed- contains a covenant that they, the executors, “ had not done, committed, or suffered any act, matter or thing whatsoever, whereby to charge or incumber the premises thereby granted, or any part thereof, in title, estate or otherwise however.” The two lots thus sold and conveyed are situated within the present bounds of Fifth street, from Broadway to Mercer street. This street was not laid down on the general map of the city, made and published by the commissioners under the act of the legislature of 1807, nor was such street delineated on the map exhibited at the auction when the lots in question were sold. It appears, however, that in 1817, the corporation caused a map to be made, which was kept in the street commissioner’s office, on which Fifth street was laid down as a contemplated street | and that in 1821, the executors and trustees of Mrs. Be Peyster’s estate, with a view to a sale of some portion of that estate, procured a map to be made of the same, laying it out into lots and numbering them, and on which map Fifth street was also delineated as an intended street, in the same manner as on the map of 1817, in the street commissioner’s office. By the map thus procured to be made and with express reference to it, they sold lots in January, 1823, and among others three lots to Mr, Whittemore, one of which extending through from Broadway to Mercer street, was described in their deed of conveyance to him as bounded northeasterly by Fifth street. In the summer of 1829, the corporation of the city of Mew-York caused a proceeding to be instituted for the purpose of opening that part of Fifth street which comprised the lots in question. The executors and trustees remonstrated against opening the street. Commissioners of estimate and assessment were nevertheless appointed. The circumstance of the map with the street laid out upon it, and the fact that the executors had sold lots by such map, and in the coveyance to Whittemore had bounded him by Fifth street, was urged before the commissioners by the persons interested in the opening as evidence of a perpetual right of way over the land required for the street; and although opposed by the executors and by Laytin, yet the commissioners considered that such a right of way had been granted or created by such previous acts, and that Laytin’s title was subject to the easement of a way, which rendered the lots of nominal value only, and the commissioners accordingly awarded to Laytin five dollars for the loss or damage which he would sustain in consequence of relinquishing his tittle and interest in the two lots. Their report was subsequently confirmed by the judges of the supreme court after a hearing before them upon objections duly , i taken.

The confirmation, as well as the report of the commissioners, proceeded upon the ground that the executors, by their previous sale and conveyance to Whittemore, had impliedly granted a right of way over the land within the bounds of .the contemplated street, previously to the sale to Laytin, and although the fee of that portion of the land was vested in him by his purchase, yet it was of nominal value only; and by that decision, which stands unrevoked, the whole title and ownership in Laytin, as grantee of the complainants in the first suit, and as their mortgagor for half of the purchase money, became extinguished. All this was known to them when they filed their bill, and the propriety of resorting to this court for a decree of foreclosure and sale under such circumstances may be questioned, since nothing remains to be sold towards satisfying the mortgage, and an action at law upon the bonds would have been attended by as beneficial a result in every respect as a decree over against the mortgagor. It is a matter, however, of equitable jurisdiction, and the court is bound to take cognizance of the case, and is authorized to malee a decree in personam, unless the defence set up, or the equities presented by the cross-bill, require me to form a different conclusion. The grounds of defence to the original bill and of relief upon the cross bill, are virtually the same, and depend Upon the consideration whether there is any thing amounting to fraud in the conduct of the executors in selling or conveying the lots in question, or whether there is such a mistake or surprize as entitle the purchaser to have the contract rescinded, or a breach of the covenant against the grantors’ own acts as contained in the deeds, which this court can lay hold of as a means of relief. On the former occasion, when considering the plea of an eviction, interposed to the cross-bill, I was led to remark that there appeared to be no sufficient reasons for imputing aptual or intentional fraud to the executors, and after examining the case more at large upon the testimony now before me, I am still of the samé opinion.

Representations were made and expectations held out to induce buyers to complete their purchases; which have proved delusive ; but I have no doubt they were made in good faith, and from what Mr. Herring, the acting executor making the sales, deemed at the time to be well founded. Nor does he appear to have wilfully suppressed or concealed any fact which was material to be known in relation to the condition or value of the property as the law, from the decision of the Mercer street case, 4 Cowen, 542, was then understood, which was at that time the only decision bearing upon the subject. The decisions which varied and at length overruled it, are all subsequent to January, 1828. Fraud is, therefore, in my opinion, entirely out of the question, as respects the manner of selling the property or the consummation of the sales by executing conveyances and taking the mortgages. The question of mistake, however; is one deserving of more consideration.

It is first necessary to ascertain how far a mistake has happened ; whether it is mutual, or confined to one party; and then to ascertain its character, whether it be" a mistake of fact or of law ; and its effect upon the contract.

When the executors proceeded to sell and convey the lots in question, there was no mistake on their part about the facts which were afterwards taken advantage of to diminish the value of the property, for they had made the map with reference to Fifth street, and sold lots'by such map in 1822, and the conveyance to Whittemore, describing the land extending from Broadwdy to Mercer street, as bounded on one side by Fifth street, Was their own act And with a knowledge of what they had thus done, they sold to Laytin, not the naked fee of the land subject to the use of Others, but the whole beneficial ownership, id as ample á manner as it was owned by Mrs; De Peyster at the time of her death, for all the purposes of occupancy and improvement as building lots; and for prices corresponding with that object. In these views of the sale, however, they were mistaken; but it was a mistake of law, as the law was afterwards expounded, and not a mistake of fact. They had fallen into an error with respect to- the legal construction and effect of the previous acts, especially the Whittemore deed under which it was determined that they had impliedly granted a right of way over the land sold to Lay-tin ; and the consequence of which (though unforeseen) was to deprive him of the almost entire beneficial ownership in the land. Such was the nature of the error or mistake on their part in selling the property lying within the bounds of the street.

Now as to the purchaser. It appears from the testimony that, although at the time of the sale he may have been ignorant that any map had been made upon which Fifth street was delineated, or that a street over the land he was buying had ever been or then was contemplated, yet before the purchase was completed he was fully apprized of those facts. His solicitor, while examining the title and ascertaining the true position of the lots, was shewn the map on which Fifth street was laid down at the same time he was verbally assured by Mr. Herring that the street never would be opened,- or if opened, the owner would be paid the full value of the lots. Under these circumstances and with a knowledge that the lots were situated within the space designated for a street if ever the same should be required, he determined to complete the purchase. He also had notice of the Whittemore deed. In his searches it was found on record, and reference was had to it at least for the purpose of ascertaining that it did not include the lots proposed to be conveyed to Laytin. Whether the solicitor examined the record so far as to be actually informed of the fact that Whittemore’s lot was, in its description, bounded by Fifth street, does not distinctly appear; but I think enough is shewn to warrant that conclusion, and that he is fairly chargeable w.ith notice of the whole contents of that deed. He is, then, to be regarded as accepting a conveyance, paying a portion of the purchase money and giving his bonds ’ and mortgages for the balance, with as full knowledge of the facts as the executors possessed. The mistake on his part is precisely of the same character as that of the vendors. The parties, therefore, may be placed upon the same footing with respect to the mistake into which they have mutually fallen—a mistake as to the law resulting from the previous acts of the executors, which, at the time of affecting the sale had a most important though unforeseen bearing upon the property in question. Does this, then, afford any ground for equitable relief to the purchaser from his contract 1

As a general rule, this court does not relieve upon the ground of a mistake in matters of law, because every man is presumed to have a knowledge of the law, and the maxim that “ ignorantia juris non excusat” is observed in equity as well as in courts of law. Yet there are cases in which this court will interfere upon the ground of such mistake, to relieve a party from the effect of his contract; as for instance, if one is ignorant of a matter of law involved in the transaction, and the other, knowing him to be so, takes advantage of that circumstance to make the contract, there the court will relieve, though perhaps more properly on account of fraud in the one party than of ignorance of law in the other. So if both parties should be ignorant of a matter of law, and should enter into a contract for a particular object, and the result according to law should be different from what they mutually intended, there, on account of the surprise or immediate result of the mistake of both, there can be no good reason why the court should not interfere to prevent the enforcement of the contract and to relieve from the unexpected consequences of it. To refuse, would be to permit one party to take an unconscientious and inequitable advantage of the other, and to derive a benefit from a contract which neither of them ever intended it should produce.

In Hunt v. Rosemaniere, (1 Peters’U. S. Rep. 1,) the supreme court of the United States, in refusing to reform an instrument on the ground of mistake from ignorance of law? were particular to say that they did not mean to lay it down as a rule that in no case will a court of equity relieve against a plain mistake arising from ignorance of law. And on the first occasion, when that case was before them, (8 Wheaton 174,) they still more emphatically expressed an unwillingness to go the length of saying that where the effect of an instrument is- acknowledged to have been entirely misunderstood by both parties, a court of equity is incapable of affording relief. If this case is not an authority establishing the doctrine, it is very far from being a decision against it, and I must therefore examine other cases to see how far the court of chancery has gone in extending relief upon this ground. Perhaps there may be some difficulty in reconciling all the cases to be found in the books, which have a bearing upon this point. Three cases are noticed by Judge Washington, and there are several which he appears not to have adverted to. The first I shall notice is Bingham v. Bingham, (1 Vesey, sen. 127,) where a bill was filed to have the purchase money refunded, which the plaintiff had paid upon the sale and conveyance to him of an estate which afterwards appeared to have been the plaintiff’s own property. From the report of the case and the statement of the facts in Belt’s Supplement, (p. 79,) the ground of the bill was, that the plaintiff had made the purchase through ignorance of the law as to his own title ; and the answer set up the defence that it was his own fault—he should have been better advised before he parted with his money—for that all purchases were to be at the peril of the purchaser unless he will secure himself by covenants. Yet it was decreed for the plaintiff; for though no fraud appeared, and the defendant apprehended he had a right fo sell, there was a plain mistake, such as the court was warranted to relieve against. This case appears to have an important bearing upon the present. In Stapylton v. Scott, (13 Vez. Rep. 425,) the lord chancellor in adverting to the effect of a mistake of both parties upon their contract, observes, that it avoids the contract at law as well as here. And in reference to the circumstances before him, he remarks: “ If the executors believed they had authority to sell and intended to sell, and the plaintiff to buy the premises, he should hold it no contract at law, and much less in this court. Where the purchaser’s inducement to the contract depends upon a mistake of his own, to which he was not led by the vendor, whether that avoids the contract is a veiy different consideration.” The mistake which called for these observations was, probably, one of fact, and they may, therefore, be deemed not strictly applicable. But the next case appears to be a direct authority upon the point that where an agreement is entered into and consummated, the effect of which, as a matter of legal obligation was not understood by the parties, there, upon the ground of mistake and surprize upon both, though there is no fraud, the contract will be rescinded. I refer to Willan v. Willem, (16 Yesey, 72.) There an agreement had been made for a lease, and a lease was executed in pursuance of it with covenants of renewal upon certain specified terms, and the bill was filed to have it set aside or delivered up. Lord Eldon, upon the ground that it was impossible the parties could have understood the effect of the covenants of renewal, and the circumstances showing that they did not understand it, and that it was a matter of surprize upon both parties, decreed that the agreement should be rescinded, and the lease given up and cancelled.

I think these cases are sufficient to establish the correctness of the position, that a contract entered into under a mutual misconception of legal rights, amounting to a mistake of law in both contracting parties by which the object and end of their contract according to its intent and meaning cannot be accomplished, is as liable .to be set aside or rescinded, as a contract founded in mistake of matters of fact; and that the court has the same power to grant relief in the first case as in the last. The case I am considering is clearly one of that description. The facts were understood, but the law was not; both parties were alike mistaken; the vendors supposed they could give a title, which would confer a beneficial ownership in the land ; this it was their object to do, and the purchaser calculated upon receiving a title which would vest him with an estate and interest for all useful purposes, commensurate with the prices which he agreed to pay. In this they were both disappointed, the law did not admit of it., The vendors had previously deprived themselves of the power to confer such an ownership. The adjudication upon that point pronounced in relation to these parties and upon the effect of the deed which they gave is conclusive. The contract, therefore, fails of its object, and it is but right and just that it should be rescinded. In Hitchcock v. Giddings, (4 Price, 135,) the court of exchequer decided, that where a vendor through ignorance and mistake, agreed to sell that in which he had no interest at the time of sale, the contract should be rescinded, and a bond given for the purchase money should be cancelled and the interest which had been paid upon it should be refunded. And I am at a loss to perceive how I can do less in the present case. If this conclusion is the correct one, and the parties are to be put in the same condition they would have been in if the contract had never been made, it then becomes unnecessary to examine the effect of the covenant in the deed, and whether the purchaser can have any benefit from it in this court. These questions have given rise to much discussion, and to the examination of several cases in our own courts and elsewhere, to shew that there can be no relief here under the covenants, without an eviction by title paramount, which has not happened ; and for the same reason that a failure of consideration for the want of title affords no ground for equitable relief. Whether, in these respects, it can be distinguished from Bumpus v. Platner, (1 John. Ch. Rep. 213,) Abbott v. Allen, (2 John. Ch. Rep. 519,) Chesterman v. Gardiner (5 John. Ch. Rep. 29,) and Governeur v. Elmendorf, (5 John. Ch. Rep. 79,) I shall not now inquire.

On the other ground I think the purchaser is abundantly entitled to the aid of this court. Lyon v. Richmond, (1 John. Ch. Rep. 51,) has been much relied upon to shew he is not entitled to relief even upon that ground. Without impugning the general doctrine as there stated, which is undoubtedly correct, it is sufficient to observe that the peculiar circumstances, as already shewn, distinguishes the present case and takes it out of the general rule. Several other facts might be here mentioned to strengthen the equity of this case on the part of Laytin, the purchaser, and to lessen that of the executors; for instance, the inducements held out to him to complete his purchase by the verbal assurance of Mr. Herring that Fifth street never would be opened, or if opened that the lots would be paid for to their full value. Laytin had a right to repose upon this assurance, and if the equities were otherwise equal this circumstance might help to turn the scale. But there is another. It is proved that in consequence of designating the street in 1822, they then sold the lots to Whittemore and others to a better advantage than they otherwise would have done. Having benefitted the estate by that operation, they have not now the same right to complain of the hardship which that measure alone has brought upon them.

H. W. Warner, for appellants.

Contracts are not to be rescinded but in the clearest cases and on the strongest evidence, especially when they have been executed. In regard to real estate particularly, purchasers must, in general, look to their covenants, and cannot be relieved on the ground of failure or defect of title. (Chesterman v. Gardner, 5 John. Ch. Rep. 29. Governeur v. Elmendorf, Id. 79.) Want of notice, though in proper cases a good defence, cannot be set up as a ground of relief, and the respondent’s bill should, therefore, have been dismissed. At all events the relief ought in no view to extend beyond the mortgages. (Frost v. Beekman, 18 John. Rep. 544.) The respondent purchased deliberately and with full knowledge of facts, and having taken his deed, entered into possession' and ex-erased acts of ownership tor nearly two years, he is too late with his objections. (Sugden on Vend. 9. Fluyder v. Cocker, 12 Ves. 27. Burwell v. Brown, 1 Jac. Walk. 169. Ward v. Jeffrey, 4 Price, 294. Royster v. Shackleford, 5 Little Rep. 229.) Notice of a deed is notice of its contents. The cross bill is not framed for relief on the ground of a mistake of law ; and there is no proper evidence of such mistake. A mere mistake of law is not a ground for relief. (Hart v. Rousmainier, 2 Mason, 244, and 1 Pet. Rep. 1, and cases there referred to. Wheaton v. Wheaton, 9 Conn. R. 96. Lyon v. Richmond, 2 John. Ch. Rep. 51.) The respondent was under no mistake when he purchased, in reference to the law as then understood and in force. An executed contract, good at the time it is made, can never be rescinded in equity on account of a subsequent alteration of the rules of law relative to its subject.

Upon the whole, I am satisfied that the loss must be borne by the estate. I shall, therefore, dismiss the bill in the first suit with costs; considering it to have been unnecessarily filed. And in the suit upon the cross-bill, I shall decree the bonds and mortgages to be given up and cancelled, and the portion of the purchase money which was paid to be refunded, with interest; the purchaser to allow for the small amount awarded to him by the commissioners. And under the circumstances, neither party is to have costs against the other in this last suit.

From this decision of the vice chancellor the complainants in the original suit who were the defendants in the cross suit appealed.

F. B. Cutting, for the respondent.

Supposing every fact-relating to the property had been as fully known to the respondent as to the appellants, the respondent is entitled to the relief decreed below, tin the ground-of a mutual mistake of the law. (Hitchcock v. Giddings, 4 Price, 135, Willan v. Willan, 16 Vesey, 73. Bingham v. Bingham, 1 Vesey, sen. 126. Belt’s Supp. 79. Lansdown v. Landsdown, Mosely, 364. Purey v. Desbourne, 3 P. Wms. 320. Evans v. Llewelyn, 2 Br. C. R. 150. Edwards v. McLeary, Cooper, 307. Leonard v. Leonard, 2 Ball & Beatty, 184, n. (a.) 2 Evans’ Pothier, 369, ed. 1806. Hunt v. Rousmanier, 8 Wheaton, 205, S. C. 1 Peters’ U. S. Rep. 13. Mead v. Johnson, 3 Cow. Rep. 592. Lowndes v. Chisolm, 2 McCord’s Ch. Rep. 455. Lawrence v. Beaubien, 2 Bailey’s S. C. Rep. 623. Hopkins’ Exec. v. Mazyck, 1 Hill. Ch. Cas. 250. Fitzgerald v. Peek, 4 Little’s Rep. 127; Glassell v. Thomas, 3 Leigh’s Rep. 113. Rowlin v. Pollock, 7 Monroe’s Rep. 33. Drew v. Clark, Cooke’s Rep. 374.) The respondent was actually ignorant of those facts, viz, the afets of the executors, by which they had rendered themselves unable to give him a beneficial interest in the property, And the respondent is not chargeable with constructive notice of such facts. The statements of Mr. Herring, one of the executors, amounted to a misrepresentation in point of fact.

The respondent is entitled to the relief given below, in any aspect of the case; whether it is concluded that he was merely ignorant of the facts which had occurred and mistook his contract ; that such facts had been wilfully, or through error, concealed by the executors ; or, that there had been a misrepresentation in point of fact on the part of the executors, either fraudulent or otherwise. (Robinson v. Dickenson, 3 Russell, 399. Story on Equity, 155, 156 et seq. Gillespie v. Moon, 2 John, Ch. Rep. 585. Wilkins v. Woodfin, 5 Munf. 183. Armstrong v. Hickman, 6 Munf. 287. Chamberlain v. Marsh, id. 283, Burrall v. Jewett, 2 Paige, 146. Woods v. Hall, Dev. Eq. Rep. 411. Waters v. Mattingley, 1 Bibb, 244. Robinson v. Gilbeth, 4 id. 183. Thomas v. Todd, 3 Litt. Rep. 337. Carr v. Callaghan, id. 366.) Laytin has no remedy at law, or, at all events, the remedy is doubtful and inadequate. The incumbrance and'the amount thereof having been judicially ascertained, this court can grant relief for the breach of the covenants in the deed. This court has jurisdiction, and the appellants have submitted to it. (Jones v. Gardner, 10 John. Rep. 269. Kellogg v. Ingersoll, 2 Mass. Rep. 97. Prescott v. Trueman, 4 Mass. Rep. 627. Kane v. Sanger, 14 John. Rep. 89. Hitchcock v. Harrington, 6 John. Rep. 290.) The appellant is too late in objecting to the jurisdiction of the court. (Grandin v. Le Roy, 2 Paige, 509. Hawley v. Cramer, 4 Cowen, 727. Abbot v. Allen, 2 John. Ch. Rep. 521. Johnson v. Gere, 2 John. Ch. Rep. 547. Edioards v. McLeary, Cooper, 307. Mead v. Johnson, 3 Conn. Rep. 592. Prescott v. Trueman, 4 Mass. Rep. 630. Kelloggs v. Ingersoll, 2 Mass. Rep. 97. Frisbee v. Hoffnagle, 11 John. Rep. 50.)

The Chancellor.

I concur with the vice chancellor iii the result at which he has arrived in this case; but I cannot agree with him in the conclusion that the correctness of incorrectness off he decision turns upon the question whether this court can relieve parties against a mistake in law merely, where both acted with a full knowledge of all the facts upon which the question of law arises. Neither do I wish to be considered as expressing any opinion one way or the other upon that point, which will be found to present great difficulties on both sides. If any relief can be had in such a case, it must be upon the ground of a distinction between an actual mistake, proved to have occurred, as in the case of Lawrence v. Beauhien (2 Bailey’s S. C. Rep. 623,) and a mere ignorance of the law which was applicable to the facts of the case, .as known to? both parties. And it must also be where, as in that case,, the party seeking such relief acquired no beneficial interest-by the contract, and where the adverse party has parted-with nothing which was of any real value ; or where the latter has intentionally deceived the other as to the opinion of counsel or the decision of a judicial tribunal upon the question of law.

The vice chancellor supposes the purchaser and his counsel were chargeable with constructive notice of all the facts out of which the question of law arose ; and that the declaration of Herring that the street would never be opened,- and that the lot could not be taken for a street without paying the full value of the land, was a mere mistake in point of law which the purchaser was presumed to know was otherwise:- But if Lay tin was not acquainted with all the facts in the case, that representation was calculated to mislead him in point of fact, even if he had known what the law was in reference to the state of facts as they now appear. In other words, it was tantamount to a declaration on the part of the vendor that neither they nor those under whonrthey claimed the lot- in question had dedicated the lot to the public, or done any other act by which the corporation, or" the owners- of the adjacent land, would have the right to open a street over the lot without paying the owner the full value thereof. Herring was undoubtedly acting under a misapprehension as to the law of the case, as he was fully acquainted with all the facts. But to a person who knew the law and was ignorant of the particular facts out of which the right to take the lot for the purposes of a street without compensation arose, this declaration of Herring amounted to a misrepresentation in point of fact. For certain purposes, and where the equitable rights of third persons are concerned, it has been found necessary by this court to hold a purchaser to be chargeable with constructive notice of' all the facts communicated to his attorney or agent for the purchase, or in the examination of the title; and that notice of the existence of a deed was good constructive notice of the contents of the deed itself, especially if it was one of the deeds under which the purchaser derived his title to the premises. But this equitable rule as to constructive notices has no reference to controversies between the vendor and vendee in relation to their own rights. The vice chancellor was incorrect in applying that principle to the case now under consideration. For the evidence in the case shows that even the counsel who examined the title had no actual notice of the contents of the several deeds, under which the owners of some of the adjacent lots had acquired a right to have a street opened across the lot in question without paying for the land itself over which such street was subsequently laid out and opened.

The facts, therefore, present a case in which the vendors, under a misapprehension of their legal rights, have sold and received part payment for a lot which was already dedicated to the public, and which for that reason was worth nothing to the owners, or those whose interest they represented in this transaction; and where the purchaser, relying upon the information of the adverse party, has purchased and in part paid for a lot which was in fact of no value either to him or to the vendors. It was therefore just and equitable, after the purchaser had been evicted by the opening of the street across the lot, to decree a discharge of the bond and mortgage and a return of the purchase money which had been paid towards the lot under such a misapprehension of the facts.

There is no error in the decree appealed from, to the Prejudice of the appellant; and that decree must be affirmed, with costs to be paid by the appellants out of the property of the decedent in their hands as executors and trustees.

       The decree in these causes was affirmed, upon appeal to the court for the correction of errors, in December, 1837.


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    In the matter of Murray, assignee of the Commercial Insurance Company.
    1836. October 18.
    The rules established under the English bankrupt laws, that interest is not allowable after the date of the commission, and that no interest can be allowed except where it is given by the express terms of the contract, are not applicable to the case of an assignment for the benefit of creditors under the insolvent laws of this state.
    In making the distribution of the effects of the insolvent debtor or company among the several creditors, under the insolvent laws, debts on which interest is recoverable by way of damages, and those upon which interest is payable by the terms of the contract, should be placed upon the same footing, in the computation of interest, for the purpose of making a rateable distribution of the assets among the creditors.
    In making distribution of the estate of the insolvent among his creditors, the interest on all debts upon which interest is recoverable should be computed up to the time of the assignment, and the interest should be discounted on such of the debts not then due as are not on interest, and the dividend should then be declared on the several amounts as thus ascertained. And where the whole amount is not paid at the date of the assignment, if assets afterwards come to the hands of the assignee more than sufficient to pay the several amounts as thus ascertained, interest should be computed on such amounts from the date of the assignment, so as to give each creditor a rateable proportion of the fund towards the interest of his debt.
    The petitioner, together with two other persons now deceased, were appointed by a former chancellor assignees of the Commercial Insurance Company of New-York, under the provisions of the act of April, 1814, respecting incorporporated insurance companies in cases of their insolvency. The effects of the company at the time of the assignment were not sufficient to pay the principal of the debts due to its creditors; but in consequence of the receipt by signee of large amounts under the late Neapolitan and French treaties, the effects now realized were sufficient to pay the whole of the principal, and a considerable part of the interest of the debts of the company if any interest was payable, under the act. The petitioner therefore applied for leave to make a further dividend among the creditors of the insolvent company, and he asked the direction of the chancellor as to the payment of interest upon the debts.

      J. L. Mason, for the petitioner.
   The Chancellor.

The court has been referred to the cases decided in England, under their bankrupt laws, where it has been held that the creditors of the bankrupt, under a commission of bankruptcy, could prove for the interest of their debts only in those cases where interest was payable by the terms of the contract; that they could not prove for interest where it was only given by a court or jury as damages for the detention of a debt, as upon a bill of exchange or note not upon interest but which was not paid when it became due; (Ex parte Marler, I Atk. 151. Ex parte Champion, 3 Bro. C. C. 436;) and that interest cannot be proved beyond the date of the commission. These cases under the English bankrupt laws are the result of a principle established at an early day in that country, before the present liberal and equitable doctrines in relation to interest, as between debtor and creditor, were fully recognized and settled; and they cannot, therefore, be considered as proper rules for the guidance of our courts in establishing the principles upon which the distribution of the effects of an insolvent debtor shall be made under the provisions of the insolvent laws of this state. Equality among creditors is equity; and where interest is recoverable either upon the express agreement of the parties or as legal damages, for the non-payment of the debt when it should have been paid, the creditors are all entitled to participate in the distribution of the fund, rateably, in proportion to the amount due to them respectively for principal and interest up to the date of the assignment. In settling the tableau of distribution, therefore, the interest upon those debts which bear interest, 01 upon which it is recoverable as damages, upon settled legal principles, should be computed to that time; and if any debts are not then due, and which are not upon interest, a proper discount should be made. As to subsequent interest, if the debts are not paid at that time, and the fund which is afterwards realized by the assignee is more than sufficient to pay the amount thus found due at the time of the assignment, the interest on all the debts subsequent to the assignment should be paid rateably out of the surplus. I know of no principle, either legal or equitable, which can deprive the creditors of the full amount due to them respectively, including the interest to the time of payment, or so far as the fund will go. The payment of subsequent interest upon those debts which originally drew interest by the agreement of the parties, was allowed even under the bankrupt laws after the principal debts proved under the commission had been fully paid. (1 Deacon's Law of Bank. 269.)

An order must therefore be entered directing the assignee to make a distribution of the fund in his hands, among the creditors, upon the principles above stated; computing the interest on policies from the time when the loss became payable according to the terms of the policy, and upon judgments recovered against the insolvent company from the dates or times of rendering such judgments. The distribution of the fund already realized to be made as soon as practicable, upon a notice of three weeks, to be published in a paper in New-York and in the state paper; and a further dividend to be made, on the like notice, upon the receipt of the residue of the fund.


text:
    Valleau vs. Valleau.
    1836. November 15.
    Where the husband; a few months after his marriage, abandoned his wife and left the state, and the wife after the expiration of seven years married a second husband, Who died four or five years before the first husband filed his bill for a divorce, founded upon such second marriage, the bill was dismissed.
    If the wife, after the husband has abandoned her and been' absent more than five years, marries a second husband, the first husband cannot obtain a divorce, on the ground of her adultery with the second htisbalnd subsequent to such marriage, unless he can establish the fact that at the time of the second marriage the wife knew that her first husband was living within' five years then next preceding.
    Where the husband has been absent more than five years, and his wife has contracted a second marriage in good faith; her husband not being known to her to be living within the five years, a cohabitation with the second husband after the mistake is discovered will not entitle the first husband to a divorce on the ground of adultery.
    The last marriage being voidable merely, but not void; the remedy of the first husband is by a bill to annul the voidable marriage; and then, if his wife continues to cohabit with the second husband aftér such marriagehas been judicially annulled, the first husband may file a bill for a divorce on the ground of such adulterous intercourse.
    Where a second marriage has been contracted in good faith; so as to render the children of such second marriage legitimate under the provisions of the revised statutes, it is improper and illegal for one of the parties to the second marriage to cohabit with the former husband or wife before the last marriage is judicially annulled, or is dissolved by the death of the second husband or wife.
    if a complainant knows that his wife has married a second time, and that she is living and cohabiting with her second husband, or if he knows his wife is living in open and notorious adultery with a paramour, his right to a divorce on account of such adultery will be barred at the expiration of five years; although such adultery has been continued down to the time of filing his bill. And where such continued adultery is notorious, the complainant must satisfy the court that, by reason of absence or otherwise, he did not know of the same until within five years previous to the filing of the bill.
    The complainant filed his bill in this cause for a divorce on the ground of adultery. The case was heard upon the bill taken as confessed against the defendant, and upon the master’s report. From the testimony taken before the master it appeared that the parties were married in the city of New-York, in October, 1821, where the defendant had ever since resided; that a few months after the marriage the complainant abandoned his wife and left the state, and shortly afterwards went to sea and was gone until some time in 1827, when he returned and went to Buffalo, where he resided at the time of filing the bill in this cause in April, 1836; that some time previous to 1831, but at what time did not appear, the defendant intermarried with Joseph Morin and continued to reside and cohabit with him, in the city of New-York, as his wife, until his death, in 1831 or 1832; which was the adultery complained of in the bill.

      D. Tillinghast, for the complainant.
   The Chancellor.

I do not think the complainant’s evidence makes out a case which entitles him to a divorce on the ground of adultery, under the provisions of the revised statutes. The testimony shows that but a few months after his marriage, and apparently without any reasonable cause or excuse whatever, the complainant abandoned his wife, and has voluntarily absented himself from her for more than fourteen years; a considerable portion of which time he was out of the state and out of the country. And there is no allegation or proof whatever to show that at the time of her second marriage, or at any time afterwards before the death of Morin, she knew or had any reason to suppose her first husband was living. As it would have been a felony for the defendant to have contracted the second marriage if she had known that her first husband was then living, although he had absented himself for more than five years, this court cannot, in the absence of all proof on the subject, presume that she has been guilty of such an offence. If the second marriage took place since the adoption of the revised statutes, it is therefore impossible for this court to decree a divorce for adultery on account of her cohabitation with Morin, the second husband, until the fact is satisfactorily established that she knew the complainant was living within the term of five years before her second marriage ; and the master reports that it is not proved that she knew the complainant was living within such term of five years. The legislature has declared that a second marriage contracted in good faith, where the first husband or wife had absented himself or herself for the space of five successive years, without being known to the other party to be living during that period, is voidable merely; and shall only be considered as void from the time when its nullity shall be decreed by a court of competent authority. (2 R. 8. 139, § 6.) Where the second marriage# therefore, is contracted in good faith, under such circumstances, although it may be adultery in foro conscientia for the parties thereto to continue to cohabit together after they shall have ascertained that the first husband or wife is still living, it is not such a criminal adul-. tery as will authorize the rightful husband or wife to file a bill for a divorce, under the laws of this state. The last marriage being voidable merely, and the children of such marriage being declared legitimate for certain purposes, it would be both illegal and improper for one of the parties thereto to attempt to cohabit with the first husband or wife before the last marriage was judicially annulled.- And as a cohabitation with the last one could not conscientiously be continued, inasmuch as it would be inconsistent with the requirements of the divine law, it might, as a matter of conscience merely, be improper to cohabit with either until the last marriage was decreed to be void. The remedy of the former husband or wife, in such a case, is to file a bill, and proceed in the manner prescribed by the statute, to annul the voidable marriage; and if the parties thereto continue to cohabit together after a decree of nullity has been pronounced, the rightful husband or wife may then file a bill for a divorce on the ground of that adultery. If it should be deemed a hardship that a party should be compelled to sue for a dissolution of the second marriage, and to take back a husband or wife who had been thus married to another, it must be recollected that such cases will veiy seldom occur, except where the party complaining has himself been guilty of a breach of tho marriage contract, by a wilful abandonment of his or her companion for a length of time which, by the laws of most countries, would entitle the other party to a divorce, And if he or she has faithfully kept the marriage vow in other respects for so long a time, it may be ño particular hardship to be compelled to keep it in the same manner until the second marriage is annulled* or the bond of the first is dissolved by the death of one of the parties. If, on the contrary, the party complaining has been guilty of adultery during such abandonment, that of itself is a perfect answer to the complaint against the party who has been thus improperly abandoned.

In the present case, if the second marriage took place previous to 1830, and from the testimony I am inclined to think it did as there were two children by that marriage previous to the death of Morin in 1832, it would not come within this provision of the revised statutes rendering the marriage valid for certain purposes until it was legally annulled. That however would not vary the case, so far as to entitle the complainant to a decree for a divorce ; as it Would then come within the principle of the decision of this court in the case of Williamson v. Williamson, (1 John. Chi Rep. 486,) which principle is now incorporated into the revised statutes, requiring the suit to be commenced within five years. I presume the complainant in this case has proceeded upon the supposition that the adultery continued down to the death of Morin, and that it was sufficient if the bill was filed within five years from that time. If the case depended upon the question as to what time the last act of adultery with Morin was committed, the court could hardly be called upon to presume that it continued up to the very day of his death, and that he died within the five years. It Would, therefore, be proper, in that view of the case, to refer it back to the master to ascertain whether Morin died in 1831 or 1832, and at what time in the year, as neither of the witnesses speak with any certainty even as to the year of his death. And it would also be necessary for the master to make more particular inquiries as to his situation and bodily capacity for some time previous to that event. The decision of this court, however, in the case of Williamson v. Williamson did not proceed upon any such ground; as the defendant in that case had continued to cohabit with the husband of the second marriage down to the very time of the filing of the complainant’s bill. But that case went upon the ground that the defendant had contracted a second marriage during the complainant’s absence in the West Indies, and had from the time of such marriage continued to reside and cohabit with Parisién as her husband; and that the complainant after his return had acquiesced therein by neglecting to commence his suit for more than five years ; which, according to the principles of the civil law, was a sufficient acquiescence in the continued adultery of the defendant to bar a suit for a divorce, by the lapse of time. The revisers in their report to the legislature refer to this decision, as containing the principles which they had introduced into the revised statutes on this subject. In conformity with that decision, therefore, I must declare the true construction, of the third subdivision of the 42d section of the article of the revised statutes relative to divorces dissolving the marriage contract, to be that if the complainant knows that his wife has contracted a second marriage and continues openly to cohabit with such second husband, or that she is living in open and continued adultery with another person even without the usual form of a marriage, the right to file a bill for a divorce for such adultery will be barred after the expiration of five years, although such cohabitation or adulterous intercourse is continued down to the time of the commencement of the suit. And where such continued adultery is open and notorious, the complainant must also satisfy the court that, by reason of his absence from the country or otherwise, he was not aware of the fact of such continued cohabitation and adultery until within five years from the time of the commencement of the suit.

In the present case the complainant has wholly failed in satisfying me that he was ignorant of the marriage and continued cohabitation of his wife with Morin until within five years. It appears that he returned to this state as early as 1827, and has resided at Buffalo ever since, and that he also had a sister residing in New-York. If therefore he had taken any pains to inquire as to the situation and conduct of his wife, as it was his duty to do if he was not wholly indifferent on the subject, he must have known that she was married to Morin and living with him as his wife. There is nothing indeed in this case as it is presented before me by the testimony, to induce me to wish to extend any legal principle for the purpose of dissolving the marriage with the defendant. Although the wife does not appear to make any objection, public policy requires that a husband who has abandoned his wife for such a length of time, and suffered her to contract a second marriage on the supposition that she was released from the obligation of the first, should not four or five years after the death of the second husband be permitted to blast the character of his wife and bastardize the issue of the second marriage 5 and when it is more than probable, from the ex parte testimony which he has himself produced, that the whole fault rests upon his own shoulders, in improperly deserting the wife of his bosom, within a very few months after his marriage, whom he had promised to love, cherish and protect until death,

If there are any facts which could have presented this case in a more favorable light, I can only regret that they have not been brought before me by the complainant’s bill, and by the proofs which he was authorized to produce be^ fore the master. As it is, I can only decree a dismissal of the bill. But it may be without prejudice to his rights, if he supposes he can, upon a new bill, present a case entitling him to a divorce, for any misconduct of his wife subsequent to the death of Morin,


text:
    In the matter of The Bank of Niagara.
    1836. November 15.
    A receiver, or other trustee, is not authorized to act himself as counsel in the business of his trust, so as to entitle himself to extra counsel fees for professional services beyond the allowances provided in the fee bill to attornies, solicitors, &c. The commissions allowed by law are intended to be a full compensation for his personal services in the execution of his trust.
    Where the account of a receiver, or other trustee, is made up without a direction from the court to make periodical rests therein, his commissions, for receiving and paying, must be computed upon the aggregate amounts of his receipts and expenditures for the whole time of accounting.
    If the receiver, or other trustee, renders annual accounts, in conformity with the provisions of the 154th rule of the court of chancery, he may charge his commissions on the receipts and disbursements of the previous year, exclusive of such sums as have been received for principal and reinvested. But if he neglects to render his accounts annually, upon the making up of his accounts afterwards, he can only charge his commissions upon the gross amount of the receipts and disbursements for the whole period since the rendering of his last regular account.
    The receivers of the property and effects of the Bank of Niagara, an insolvent corporation, were directed by an order of the chancellor, to pass their accounts before the vice chancellor or the taxing master of the eighth circuit, preparatory to a final distribution of the funds of the corporation among its creditors. And upon the passing of such accounts the vice chancellor or master was directed to allow them, for their time and trouble including the payment of the balance of the fund in their hands to the creditors on. the final distribution, in addition to their actual disbursements in the execution of their trust, the same commissions which are by law allowed to executors and administrators. Upon an application to the chancellor to confirm the report of the master, and for a final order as to the distribution of the fund among the creditors, it appeared that the master had allowed to the receivers commissions, on each item of their receipts and disbursements, at the rate of five per cent for receiving and five per cent for paying out every sum not exceeding one thousand dollars, and two and a half per cent for receiving and the like for paying out all sums exceeding that amount; and five per cent for paying out the balance in their hands to the creditors on the final distribu- . . tion of the fund among the creditors. The master, m additjon tQ gucb commiss}onS; bad also allowed to the receivers, for their services, at the rate of about three dollars per day in addition to their disbursements; and the further sum of $280,62, by way of commissions upon the bills of the bank burned tinder the direction of a master, exclusive of the sum of $100,27, paid to the master for his services on the same occasion. He had also made an allowance to one of the receivers who was an attorney and counsellor, for counsel fees in examining certain claims in favor of and against the company; in addition to between two and three thous? and dollars of taxed costs in suits in relation to the fund,

      J. Rhoades, for the receivers,
    asked for an order to confirm the report, and for a further allowance for prospective services in relation to the distribution of the fund.

      M. T. Reynolds, as amicus curia, and also in behalf of the creditors of the insolvent corporation,
    suggested that the master had allowed too much for commissions; and that the receivers were not entitled to any allowance for their own services beyond the commissions, which commissions were to be deemed a full compensation for personal services.
   The Chancellor.

The master who has passed this account has entirely misapprehended the rule of law as to the allowance of commissions to executors and administrators, as well as the principle upon which such commissions should b,e computed; the result of which is that he has allowed the receivers, in addition to the per diem allowance claimed by them for their services in the execution of the trust, about ten per cent upon the whole amount of the fund which has been received and expended, or which is hereafter to be paid out by them. He was also wrong in allowing the $280,62 by way of commissions to the receivers for burning the bills of the bank. The $100 paid to the master was certainly a.sufficient compensation to him for counting and making a statement of the whole amount and denominations of bills destroyed in his pres-v ence» All that the receivers had to do therefore, upon that occasion, was to deliver over the bills to the master that he might count and assort them and make a statement thereof, and when that was done to put them into the fire and bum them in his presence. It is impossible for me to conceive how the master’s fees could have amounted to $100 on that occasion, even if he performed the whole labor of counting and assorting the bills, without any assistance from the receivers. But as the receivers swear that they paid the amount charged, and which was for his taxed bill of fees which I presume was produced before the taxing master# with the receipt for this disbursement, at the passing of the account, that item in the account cannot now be inquired into.

The receiver was not entitled to charge for extra counsel fees to himself, in addition to the legal taxable costs in suits prosecuted or defended by him as attorney or solicit- or ; nor was he entitled to any allowance in the character of counsel for himself or his co-receiver, in relation to any other matter. The employment of counsel and the payment of a proper allowance for such services, when necessary, requires the exercise of a sound discretion on the part of the receivers or the trustee of the fund out of which such services are to be paid. It would, therefore, be as unsafe to allow a receiver or other trustee to contract with and pay himself for such extra services, as it would be to allow him to become the purchaser of the trust property which it is his duty to sell to the best advantage for the benefit of the estate. If he employs third persons as counsel, and where he has no interest in employing and paying them for services which are not absolutely necessary, there is comparatively little danger that the estate entrusted to his care will be charged with counsel fees which might safely have been dispensed with. No allowance for extra counsel fees to himself can therefore be made to a receiver, or other trustee, upon the settlement of his accounts.

The per diem compensation to receivers for particular services was also improperly allowed. The commissions upon the monies received and paid out are in lieu of all pergona] services of the receiver, executor, or guardian, except such taxable law charges as are allowed to attornies and solicitors by the fee bill, if he acts in that capacity. (2 Paige’s Rep. 287.)

Even if the master was right in computing the commissions upon each item of the receipts and disbursements of the receivers, he has allowed double what they were entitled to'; as he has allowed full commissions both upon the receipts and disbursements, whereas he should have allowed but half commissions upon each. The highest allowance under the statute, to executors' and administrators, in full for all their personal services, is five per cent for receiving and disbursing: that is, two and a half per cent for receiving, and two and a half per cent for disbursing the same money, or paying it over to those who are entitled to it under the trust, or upon the final settlement of their accounts.

The master, however, was wrong in allowing commissions upon each item, thereby increasing the allowance beyond the amount specified in the statute. Where an account is taken without annual rests, the commissions are to be computed upon the aggregate amount of the receipts and disbursements; so as to allow five per cent for receiving and disbursing the first thousand dollars, two and a half per cent upon the next four thousand, and one per cent for . the residue. In cases where the court directs annual rests to be made, for the purpose of charging the executor, or administrator, or guardian, with the interest upon the annual balances, the commissions are to be computed in the same manner upon the amount actually received and disbursed or paid over during each year, and in the same way upon the final balance ; in such a manner, however, that the whole amount of commissions shall in no case exceed five per cent upon the whole amount which may come to the executor, or other trustee. And where a receiver, or guardian, or committee, appointed by this court, renders a. periodical account of his trust, in the manner required by the 154th rule, he is at liberty to charge commissions upon the receipts and disbursements of the year, not including, however, re-investments of the principal of the fund received, But if he neglects to render correct periodical accounts of his trust in conformity to this standing rule of court, he can only charge his commissions upon the gross amount of his receipts and disbursements from the time of rendering his last regular account, unless the court shall think proper to direct the account to be taken with annual rests, for the purpose of charging him with the interest on the annual balances in his hands: in which latter case the commissions will be computed as if such annual accounts had been actually made. (See Vanderheyden v. Vanderheyden, 2 Paige’s Rep. 287.)

I am aware that, in the case under consideration, the allowance only of such commissions as are by law to be paid to executors and administrators will be an inadequate compensation to the receivers, for then* services in settling up the concerns of this very rotten institution, where the amount of the fund to be collected and paid out is so very disproportionate to the trouble of investigating its complicated concerns. But at the time the order for the passing of the accounts of the receiver was made, I was acting under the impression that the proceedings against this institution were commenced subsequently to the revised statutes, and that the court was therefore restricted by a statutory provision from allowing to the receivers any greater compensation for their services than the commissions allowed by law to executors and administrators. By the 76th section of the article of the revised statutes relative to the voluntary dissolution of corporations, the highest commissions which the court is authorized to allow are the commissions allowed bylaw to executors and administrators. (2 R. S. 470.) And this provision of the revised statutes is made applicable to receivers of insolvent corporations, or those which have forfeited their charters, by the forty-second section of the preceding article. (2 R. S. 464.) The allowance to such receivers, who have been appointed since the revised stabutes went into operation, cannot therefore exceed the commissions of executors and administrators. But these statutory provisions are not restrospective in their operation. And as the usual allowance to receivers at the time of the appointment of the receivers of this institution was five per cent on the whole amount of their receipts and disbursements, that is, two and a half per cent for receiving, and and the like sum for paying over, it is proper that they should receive that compensation for their services. The order as to the allowance in this case must be modified accordingly.- It must be referred back to the master to restate the account upon that principle; allowing to the receivers five per cent for receiving and paying out the whole sum of #34,864,62, as mentioned in his report, and rejecting all claims for any other personal services or counsel fees to the receivers ;• which allowance is also to be in full for paying over the fund in their hands to the creditors under' the final order. The master is also to allow to the receivers such sum as he may deem sufficient to cover future disbursements, not exceeding fifty dollars, beyond the disbursements incurred up to the time of entering this order and the master’s fees upon the re-statement of the account. The master is also to ascertain and report the whole amount of the fund to be distributed and the amount per cent which it will pay upon the aggregate amount" of the debts of the bank which have been exhibited and allowed.The receivers are also to destroy all the bills of the bank in the presence of the master, and such of the books as the' master may deem to be of no use to preserve; and to deposit the residue of the books of the company with the clerk of Erie county for safe keeping and preservation, according to the provisions of the 63d section of the article' of the revised statutes relative to documentary evidence and the preservation thereof.- (2 R. S. 404.) The county clerk’s fees of three cents for receiving and filing every such hook must also be allowed by the master in passing the' receivers’ accounts. And upon the confirmation of the master’s report, the receivers must give notice in the state paper and in a public paper printed at Buffalo, of the amount which will be paid of the claims allowed, and the' place in the city of Buffalo at which payment will be made if applied for at any time within two months after publication of the said notice. At the expiration of the said two months, the receivers are to return to the register a statement of the unclaimed dividends and the names of the persons to whom they appear to belong, and pay over to him the balance of the fund in their hands. And the register is to pay those dividends to such persons as may call for the same, within six months thereafter; deducting therefrom his usual commissions upon receiving and paying out, and the sum of six cents upon each claim for filing and marking the voucher therefor and entering the same in his book. Such dividends as shall not be called for within the six months, the register after that time is to deposit in the bank in which his accounts as register are kept, to the credit of this matter, and subject to the further order of the court. The money deposited by the receivers, with the accumulations of interest thereon, is to be paid over to them by the Bank of Albany. And upon the payment of the balance to the register and the presentment to him" of the proper vouchers showing the payment of the dividends which the receivers have paid within the sixty days, they are to be discharged from further liability; but the trust is to continue for the benefit of those who are entitled to prosecute suits in the receivers8 names under the previous order of the court.