text:
    Heyer and others, executors, &c. vs. Pruyn and others.
    Where the purchaser of a farm, which was subject to a prior mortgage, given by the former owner thereof, and duly recorded, had within twenty years previous to the filing of the complainants’ bill to foreclose the mortgage, recognized the existence of such mortgage as a valid and subsisting incumbrance upon the premises; Held, that neither such purchaser, nor those who had derived their titles to the premises under him subsequent to such recognition, could set up the statute of limitations in bar of the suit; although the mortgage had been due for more than twenty years.
    A purchaser of mortgaged premises, who, at the time of his purchase, has either actual notice of the mortgage, or constructive notice thereof by means of the registry, is bound by a previous acknowledgment of the person under whom he claims, of the existence of the indebtedness, within twenty years.
    Where a mortgage upon real estate is given to secure the payment of a note, or other simple contract debt, the remedy of the mortgagee against the land will not be barred by lapse of time short of twenty years; although the statute of limitations might have been pleaded in bar to a suit upon the note, at the expiration of six years from the time when it became due.
    By a sale of the equity of redemption upon execution, the mortgaged premises become in equity the primary fund for the payment of the mortgage debt, and the personal liability of the mortgagor to pay the debt becomes separated from the ownership of the land, and from the remedy upon the mortgage against the land. And a judgment in favor of the mortgagor in a suit brought upon the bond, after such sale, could not be pleaded by the purchaser of the mortgaged premises, by way of estoppel, in bar of a suit to foreclose the mortgage.
    The bill in' this case was filed to foreclose a mortgage given by the defendant Arent Pruyn to Isaac Heyer, the complainants’ testator, in July, 1809, to secure the payment of $1008 32, with interest thereon, the one half at the expiration of one year from the dale of the bond and mortgage and the residue in six months thereafter; which mortgage was duly proved and recorded in Columbia county, where, the mortgaged premises were situated, a few days after its date. Pruyn the mortgagor suffered the bill to be taken as confessed against him. But the other defendants, P. J. Merick, J. Lape and J. P. Merick, who were made parties to the suit as having or claiming an interest in the mortgaged premises as subsequent purchasers or incumbrancers, put in answers to the bill. In their answers they insisted, among other things, that they were bona fide purchasers and incumbrancers without any actual notice of the existence of the mortgage. And they averred that if any payments had been made upon the bond and mortgage within twenty years before the commencement of the suit, of which they denied any personal knowledge, such payments had not been made by the mortgagor or by the owners of the mortgaged premises, nor with their knowledge or assent. They therefore insisted that the mortgage must as against them be presumed to be satisfied. Other matters were also set up in the answers of these defendants, as equitable defences against the lien of the mortgage. The cause was heard before the vice chancellor of the second circuit, upon pleadings and proofs. He decided against the defence set up by the defendants, and decreed a foreclosure and sale of the mortgaged premises to satisfy the amount due on the bond and mortgage. From this decree the defendants who had answered appealed to the chancellor.

      April 2.

      K. Miller & S. Stevens, for the appellants.
    The lapse of time raises the presumption that the mortgage is paid and bars the complainants’ right to a foreclosure; more than twenty years having elapsed after the last payment became due before the filing of the bill. The payments by Henry L. Van Dyck were made by him when he was neither mortgagor nor owner of the mortgaged premises, and are not sufficient to rebut the presumption as against the defendants who were purchasers thereof for a full consideration and by deeds with warranty. (Park v. Peck, 1 Paige, 477. Whittick v. Kane, 1 John. R. 202.) The agreement and arrangement made between Van Dyck and Heyer the mortgagee, in May, 1834, and their subsequent arrangements shew that the mortgagee agreed to look to Van Dyck alone for payment; and ought to operate as a release of the mortgaged premises in the hands of innocent and bona fide purchasers. At all events the full amount of the note of Lawrence Van Dyck, jun. ought to be credited on the mortgage, with interest from the date of the note. The defendants being purchasers for a valuable consideration, and without actual notice, they are entitled to costs.

      W. H. Tobey, for the respondents.
    The mortgage having been recorded, the defendants had constructive notice of its existence, which is here sufficient for our purpose. The defendants deriving title under Van Dyck, can be in no better situation than he would be', and he had not only constructive but actual notice. Not only had Van Dyck actual notice of the mortgage, but he acknowledged its existence and force when he owned the farm; and within twenty years. It follows that the doctrines of presumption of payment arising from the lapse of twenty years, cannot apply to this case. If twenty years had elapsed, there still would be circumstances enough in this case to repel the presumption of payment. Henry L. Van Dyck was a party in interest, and any payments or acknowledgments made by him would revive the debt, and his acts are binding on those claiming under him. The arrangement between Heyer and Van Dyck, did not affect the mortgage debt nor its lien. The note of Lawrence Van Dyck, jun. is not chargeable to the complainants beyond the sums endorsed. (1 John. 139. 3 John. Cas. 229. 7 John. Ch. 57. 12 Ves. 264. 19 Id. 196. 17 Serg. & Rawle, 54. 6 Cowen, 403. 10 John. 381. 2 Stra. 826. 2 Ld. Ray. 1370. 1 Phil. Ev. 156. Cowp. 109. 1 Star. 101. 2 R. S. 301, § 48. 7 John. 434.)
   The Chancellor.

There is very little dispute as to the real facts in this case. Shaver who purchased the mortgaged premises in October, 1813, had no notice of the existence of this mortgage except the legal constructive notice arising from the registry thereof. And these defendants were equally ignorant of the actual existence of such an incumbrance upon the premises, at the time their several rights and interests therein accrued. But as this suit was commenced in January, 1832, which was but a little more than eighteen years after the conveyance to Shaver, the defendants are not entitled to protection by lapse of time if this bond and mortgage had been recognized by Van Dyke, the former owner of the premises, as a valid and subsisting incumbrance thereon, previous to his conveyance to Shaver, and within twenty years before the commencement of this suit. Whether the payment of the $500 by Van Dyke, in May, 1814, which does not appear to have been authorized or sanctioned either by the mortgagor or by the then owner of the premises, would be sufficient to rebut the presumption of payment in favor of Shaver and those claiming under him, and to preserve the lien of the mortgage for twenty years from that time, is a question which it is not necessary to decide here. It may be remarked, however, that at the time of that payment Van Dyke was not a more volunteer. Neither was there a want of privity between him and the owner of the land in relation to that payment. For by his covenants in the deed to Shaver he was bound to pay off the mortgage, so as to protect the premises from the lien thereof. And those covenants would run with the land into whosever hands it might come by assignment from Shaver, so as to create a similar privity between Van Dyke and them in relation to the payment of this mortgage.

It appears by the pleadings and proofs that, subsequent to the giving of this mortgage, Pruyn the mortgagor failed in business and became insolvent, and that in September, 1812, there were several judgments against him, and other incumbrances upon the mortgaged premises, some of which judgments and incumbrances were older and some younger than the mortgage to Heyer. An arrangement was then made by H. L. Van Dyke, who owned the junior judgment, and the other incumbrancers, except Heyer who lived in New-York and knew nothing of that arrangement at that time, by which it was agreed that Van Dyke should bid in the premises under the youngest judgment, subject to the prior incumbrances thereon; and that the other creditors should wait upon him five years, if necessary, for the payment of their respective claims, to enable him to sell the property and obtain the payment of the purchase money in the meantime. This arrangement was carried into effect, by a sale of the premises by the sheriff to Van Dyke, on the 28th of September, 1812 ; and the appellants claim title to the premises under that sale. At the time when that arrangement was made a statement of all the judgments and other incumbrances upon the property was made out, and Heyer’s mortgage was included therein, for the whole amount of principal and interest from its date, as a valid and subsisting incumbrance upon the premises. This was therefore a distinct recognition, by Van Dyke the purchaser, of the existence of that bond and mortgage as a valid lien upon the premises in September, 1812. And if he had continued the owner of the mortgaged premises until the commencement of this suit, in January, 1832, it is evident that he could not have set up lapse of time as a bar to the complainants’ suit, even if there had been no subsequent payment on the bond and mortgage, nor any recognition of the same as a subsisting debt. The defendants, therefore, claiming through tiie conveyance from Van Dyke to Shaver, sit in the seat of the grantor in that conveyance, and are bound by his previous recognition of the mortgage as a subsisting incumbrance upon the premises within twenty years. In the case of Hughes v. Edwards, (9 Wheat. Rep. 490,) the supreme court of the United States held that purchasers from the mortgagor who had cither actual notice of the mortgage at the time of their purchases, or had constructive notice by means of the registry, were -bound by a previous acknowledgment of the person under whom they claimed of the existence of the indebtedness within twenty years.

Neither is the lien of the mortgage gone because there is no proof of an admission or recognition of Pruyn the mortgagor of his indebtedness within twenty years. If a formal admission of his continuing liability on the bond were necessary in this case, we have it by his suffering the bill to be taken as confessed against him ; which entitles the complainants to a decree against him personally for the deficiency, if the mortgaged premises should be insufficient to pay the debt and costs. It is not necessary, however, to show that the personal liability of the mortgagor still continues ; for the lien of the mortgage would not be impaired even by an absolute discharge of the mortgagor under the insolvent act. The intimation of an opinion by Mr. Justice Sutherland, in Jackson v. Sackett, (7 Wend. Rep. 94,) that a mortgage to secure a simple contract debt was presumed to be paid in six years, because the statute of limitations might at the expiration of that time be pleaded to a suit on the note, certainly cannot be law. At least such a principle cannot apply to a case like this, where the real security upon the land is separated from the persona] responsibility of the mortgagor by a sale of the equity of redemption upon execution. While the party who is personally liable for the debt continues to be the absolute owner of the equity of redemption in the mortgaged premises, a judgment in his favor which would be an absolute bar to any recovery against him for the debt, on the ground of payment or usury, &c. might also, as an estoppel, bar a suit against him to obtain satisfaction of the debt out of the mortgaged premises. But where the personal liability of the mortgagor has been separated from the ownership of the land, a recovery against the mortgagor upon his bond, after such separation, would not estop the owner of the land from showing that the mortgage was paid. And as estoppels must be mutual, a judgment in favor of the mortgagor, in a suit instituted upon his bond, after his equity of redemption in the land had been sold by the sheriff, could not be pleaded by the purchaser in bar to a bill to foreclose the mortgage. Here the mortgaged premises constituted in equity the primary fund for the payment of the debt; as the purchaser at the sheriff’s sale took the land subject to the specific lien of this pri- or mortgage thereon. (Tice v. Annin, 2 John. Ch. Rep. 128.) The recognition of the existence of the incumbrance, therefore, by the party who was in equity bound to apply the funds in his hands to pay off the mortgage, should, as against him and those claiming under him by the subsequent conveyance, be considered of the same force as a recognition by the mortgagor himself.

There was nothing inequitable in the arrangement with Heyer, in May, 1814, by which a part of the purchase money received from Shaver was applied towards Colonel Van Vleck’s judgment instead of being paid on the morígage. As both were incumbrances upon the premises in the hands of the purchaser, it was perfectly immaterial to him which was paid first. Whether the money was applied to satisfy the judgment or the mortgage, the amount of the incumbrances on the property remaining unpaid would be precisely the same.

The note of L. Van Dyck does not appear to have been lost by any negligence on the part of Heyer. It was not endorsed over to him, so as to enable him to collect it in his own name if it was not voluntarily paid. And he had no directions to sue it in the name of Doctor Van Dyck from whom he received it. It was for the interest of these defendants that Heyer should retain that note, and should endeavor to get the money thereon from the assignees and apply it in payment of the mortgage, instead of delivering the note up to H. L. Van Dyck, who might have used the money for other purposes.

For these reasons I do not see any ground for differing from the vice chancellor in the conclusion at which he arrived in this case. And the decree appealed from must therefore be affirmed with costs.


source: Caselaw Access Project

author: The Chancellor.

license: Public Domain

text:
    Wood & De Freest, executors, &c. vs. Cone and others.
    Where the testator made his will and died previous to the adoption of the re. vised statutes, leaving a widow, and a married daughter who was his only child and heir at law; and by his will directed that his executors should sell all his real and personal estate and put out the proceeds thereof at interest upon landed security, and should pay such interest to his widow for life, for her support, and a part of the principal of the fund also if it should be necessary for that purpose; and that immediately after her decease all the monies then remaining should continue at interest, and that the interest thereof should be appropriated to the support of his daughter, in case she should be left a widow, and from that time for and during her natural life or until she should again marry; and that if the interest should not be sufficient for her support, she should then have so much of the principal of the fund annually as the executors should deem sufficient; and that immediately after the death or remarriage of his daughter, all the monies then due and remaining should be paid to her children, or the legal heirs of her body, Be they should respectively become of age; Held, that by the true construction of the will the executors were to accumulate the interest of the fund, after the death of the widow, during the joint lives of the daughter and her husband for her support in case she should become a widow; and that in the event of her dying during the lifetime of her husband, which event actually occurred, the executors were to pay such accumulated interest, as well as the principal of the fund, to her children as they respectively became of age. Held also, that the children of the testator’s daughter, who were in esse at the time of her death, took vested interests in their several shares of the accumulated fund, although the payment of their several shares was postponed until they became of age; and that there was an implied trust for the executors to accumulate the interest of the several shares, for the benefit of the children, during their respective minorities.
    Upon the principles of equitable conversion, the proceeds of real estate directed by the testator to be sold, are only considered as converted into personalty for the purposes of the will. And if any estate or interest in the fund arising from the sale is not legally and effectually disposed of by the will, there is a resulting trust, as to such estate or interest, in favor of the heir at law.
    April 2.
    Tms was an amicable suit brought by the executors of the will of R. Goodrich, deceased, against A. Cone and Anne his wife and their infant children, for a judicial construction of the will of the decedent; for the purpose of settling the respective rights of the defendants to the interest or income of the proceeds of a sale of the testator’s real estate. The testator died previous to the adoption of the revised statutes, leaving a widow, and Mrs. Anne Cone, his only daughter, who was his sole heir at law. By his will he directed his executors to sell all his real and perdona! estate; and after paying all his debts and funeral expenses to put out the residue of the proceeds thereof at interest, upon landed security. And he directed them to pay the interest to his wife during her life or widowhood, and also a part of the principal if they found it necessary, for her support. The will then contained the following clause, under which the conflicting claims of the defendants in this suit arose: “ Immediately after the decease of my wife Esther, I will that all the monies then remaining shall remain at interest as above stated, and that the interest of the same shall be appropriated to the support and maintenance of my daughter Anne, wife of Ashbel Cone, in case she shall be left his widow; and from that time for and during her natural life, or until she shall marry a husband; and in case the interest should not be sufficient for her support, that then and in such case she shall have so much of the principal annually as my executors hereinafter named shall deem sufficient for her support. And immediately after the death or marriage of my said daughter Anne, I will that all the monies then due and remaining shall be paid to the children or legal heirs of the body of my said daughter Anne, as they shall respectively arrive at age; that is to say, the male children at the age of twenty-one and the female at the age of eighteen; to be paid to them in equal proportions, share and share alike.” The testator by a codicil gave a legacy of $10 to his daughter, and substituted the present complainants as his executors in the place of those who were named in the original will; but made no other change in the disposition of his property. In 1827 the executors sold the real estate to Cone, the testator’s son-in-law, and applied a part of the proceeds thereof to pay debts; the' testator’s personal estate being insufficient for that purpose. For the residue of the purchase money they took Cone’s bond and mortgage upon the premises, payable in fifteen years, with interest to be paid annually. Mrs. Goodrich, the widow of the decedent, died the 7th of February, 1830. Up to that time Cone paid the interest on his bond and mortgage. He also paid a part of the principal, sufficient to satisfy his wife’s legacy of $10 and a small balance due to the estate of his mother-in-law, for monies advanced by her to"pay debts of the testator; leaving the amount due on the bond and mortgage at that date, $1137,61. Upon that sum he subsequently refused to pay the annual interest to the mortgagees; as he claimed that it belonged to him, in right of his wife as the sole heir at law of the testator, as an interest in the proceeds of the real estate not disposed of by the will. The annual interest having remained unpaid until January, 1838, the executor’s then filed their bill in this cause to settle the construction of the will in that respect, and to foreclose the mortgage, for the non-payment of such interest, if the claim of the mortgagor should be determined by the court to be unfounded. All the facts upon which the claim of Cone rested being correctly stated in the bill, he suffered the same to be taken as confessed against himself and wife; and the other defendants, who were infants, put in a general answer by their guardian ad litem, submitting their rights to the decision and protection of the court. On the 5th of February, 1833, Mrs. Cone died, and the cause was ordered to proceed against the surviving defendants, her husband and children. '

      J. Rhoades, for the complainants.
    The defendant Ashbel Cone is not, in right of his wife or otherwise, entitled to the interest accrued upon the bond and mortgage from the death of the testator’s widow to the death of his wife, or any part thereof. Anne Cone was not entitled to have the same or any part thereof appropriated by the complainants to her support and maintenance ; because she was not left a widow, which event was contemplated by the will to happen before the complainants were authorized to appropriate any part of such interest or principal to her support and maintenance. For it was the manifest intention of the testator that Ashbel Cone should not in any way directly or indirectly receive any benefit from the testator’s estate, which he would do if his wife was supported and maintained out of it. There is a valid suspense of the ownership of so much of the principal of the moneys as should not be required for the support of the testator’s wife or daughter during their respective widowhoods. And as no valid direction for the accumulation of the interest is given by the will, it follows as a consequence, as the law stood when this will took effect, that it belonged to Anne Cone as the sole heir at law of the testator, in which case, as it was not reduced to possession by the husband during her life, it is to be distributed among the infant defendants as her next of kin; or that it belonged to the complainants in trust for the infant defendants. (Humphreys on Real Property, p. 260. Rev. Notes, pt. 2, ch. 1, tit. 2, § 41, p. 20, 21, note to § 41, p. 29.) The testator’s widow and daughter being both dead, the infant defendants have contingent estates, in the fund, which will vest in Zacheus on his attaining the age of twenty-one .years, and in the five girls respectively on their attaining the age of eighteen years.

      Ashbel Cone, in pro. per. insisted that in right of his wife he was entitled to the interest which accrued from February 7, 1830, to February 5, 1838 ; and that the costs of all parties should be paid out of the principal of the fund.
    D. Buel, jun. for the infant defendants.
    By the terms of the will, Ashbel Cone could in no event take any benefit from the property bequeathed. Anne Cone had a contingent interest in the residue, after the death of the testator’s wife. But the contingency in which the interest was to be appropriated for her support, and (in case that was not enough) the principal, viz. her becoming a widow, never happened. It would evidently defeat the testator’s intention, to allow either Cone or his wife to enjoy the interest during their coverture. There is an implied direction to have the property which remained after the death of the testator’s wife, accumulate until the contingency should happen, on which the interest (or principal if necessary) might be appropriated. The interest could not be appropriated for any purpose except the support and maintenance of Anne, consistent with the provisions of the will. But if a direction to accumulate is not necessarily implied, the law (previous to our revised statutes) seems to have been settled, that where there is a contingent bequest of the residue, without any specific directions for accumulation, the interest during the suspension is not to be deemed undisposed of, but must accumulate. (Green v. Ekins, 2 Atk. 473. Butler v. Butler, 3 Id. 58. Trevanion v. Vivian, 2 Ves. sen. 430.) There is a difference in this respect, between the income of real and personal property. Where there is a contingent devise of the former, the rents, &c. during the suspension go to the heir; but the interest of personal estate accumulates. The testator in this case directed all his property to be converted into personal estate, and it is to be so treated. (Bullock v. Stoner, 2 Ves. sen. 521.) The doctrine cited by the complainant’s counsel from Humphrey on Real Property, p. 260, applies to real estate exclusively. If we are mistaken in respect to the law applicable to accumulation in such a case, still, as the husband was never entitled to the interest, and Anne his wife died without having received it of the trustees, it now belongs to her children. Even if the husband was entitled to it, in right of his wife, not having reduced it to possession in her lifetime, it goes to her heirs. It is submitted whether, upon the death of Anne Cone, the whole property remaining, both principal and interest, has not become vested in the infant children of Anne Cone ; although not payable until they respectively attain the ages of eighteen and twenty-one, as directed in the will.
   The Chancellor.

If the interest upon the bond and mortgage, which accrued after the death of the testator’s widow and before the death of the daughter, is not legally and effectually disposed of by the will in the event which has happened, it unquestionably belongs to the husband and not to the children of Mrs. Cone. Upon the principles of equitable convérsion the proceeds of the real estate directed by the testator to be sold is only considered as converted into personalty for the purposes of the will. And if any estate or interest in this converted fund was not legally and effectually disposed of by the will, there was a resulting trust, as to such estate or interest, in favor of Mrs. Cone, as the heir at law of her father. (Hopkins v. Hopkins, Cases Temp. Talb. 51.) In the language of Lord Eldon, “ where land, such as would descend to the heir at law, is undisposed of by the will, the heir at law shall have the benefit of all that is not disposed of. And if the testator has disposed of the legal interest but not the beneficial, then the heir at law shall take by a resulting trust all the benficial interest which is so undisposed of.” (3 Dow’s Rep. 209.) Neither does it. make any difference in the present case, if the interest is not disposed of by the will, whether such interest is considered as the real or as the personal estate of Mrs. Cone as the heir at law. If it is considered as the rents and profits of real estate, then the husband is entitled to it by virtue of his marital rights ; as he was entitled to the income of all her real estate during their joint lives. And if it is considered as personal estate of the wife, then upon her death he became entitled to it under the statute of distributions, which gives all the wife’s personal estate to the husband where he survives her. It therefore becomes necessary to examine the provisions of this will for the purpose of ascertaining whether this interest was intended to be disposed of by the testator in the event which has occurred.

It is very evident that the claim of the husband of this interest, as it was made by him during the life of his wife, cannot be sustained. This bill was therefore properly filed to foreclose the mortgage, for the nonpayment of the interest which had then accrued. And if he is now entitled to the interest which was then due he became entitled to it in con* sequence of the subsequent death of his wife. It was unquestionably the intention of the testator that the interest of the fund, after the death of the widow, should accumulate during the joint lives of Cone and wife, and that the same should be applied for her support and maintenance during her widowhood if she survived him. And the testator did not intend merely to give her the interest which should accrue during her widowhood for her support, leaving her husband to take the interest during his life by virtue of his marital rights. I think the language of the will on that subject is too explicit to be misunderstood. He directs that immediately after the death of his wife all the monies then remaining shall remain at interest as before stated, (that is, upon landed security,) and that the interest shall be appropriated to the support and maintenance of his daughter, in case she should be left a widow, and from that time for and during her natural life or until she shall marry a husband : that is, the interest from and immediately after the death of the testator’s wife, and also the interest from the time his daughter shall be left a widow, is to be applied to the support of the daughter during her widowhood, in case she shall survive her husband and thus be left a widow.

Whether the testator contemplated the event which has actually happened, and intended to dispose of the whole of ' the accumulated fund among the children of his daughter in case she survived her mother and died in the lifetime of her husband, so that no part even of the interest would be wanted for her support during widowhood, is a matter of

more doubt. Upon an examination of the several provisions of the will, however, I have arrived at the conclusion that he did contemplate that event, and intended in that case that all the monies then due and remaining, whether for principal or interest, should be paid to the children or legal heirs of the body of the daughter. The direction to apply the interest for the support of the daughter is only a direction so to apply it in case she shall be left Cone’s widow; in which event a part of the principal also, if necessary, is to be applied for the same purpose. This clearly shows the testator did not take it for granted that she would want this provision for her support, but that he contemplated it merely as a possibility and provided for it accordingly. It is therefore a direction to keep the money at interest, from the time of the death of the testator’s wife, and to support his daughter out of the interest, during her widowhood, in case she survive her husband, and to apply a part of the principal for that purpose if necessary; and to give the residue of the fund to her children or issue upon her death or remarriage. There is therefore no part of the testator’s estate which was not effectually disposed of by the will, and the husband is not entitled to the contingent interest of his wife to a support out of the rents and profits in case she should be left a widow.

At the death of Mrs. Cone each of the children then living took a vested interest in an undivided share of the fund, including the interest thereon from the death of the testator’s widow. There is an immediate gift to the children or heirs of the body of Mrs. Cone at that time; although the payment is postponed until the males arrive at the age of twenty-one, and the females at the age of eighteen respectively. There is therefore an implied direction to the executors to keep the share of each invested, so that it may continue to accumulate until the time of payment as prescribed by the testator arrives. And if any of them should die in the mean time, his or her share will go to the personal representative of such deceased child.

As this is an amicable family suit, and the mortgagor is bound to support his children out of his own property if he has the means of doing so, and as he has probably withheld the payment of this interest under an honest belief that he was entitled to the same in right of his wife, I shall not charge him with the costs of this suit, provided the arrears of interest on his bond and mortgage are paid within three months. In that case the complainants are to pay the costs of the guardian ad litem of the infants, and to retain their own costs, out of the said interestsbut even in that case the usual decree will be entered, authorizing the complainants to proceed upon the foot of this decree if default shall hereafter be made in the payment of interest or principal. If the arrears of interest are not paid within the three months, there must be a reference to a master to compute the amount due and to ascertain whether the premises can be sold in parcels ; to the end that upon the coming in of that report the usual decree for a sale to pay the debt and the costs of foreclosure may be entered.


text:
    Waller vs. Harris.
    Upon an appeal from the court of chancery to the court for the correction of errors, the party making the case is not entitled to charge by the folio for the printed copies of his points delivered to the members of the court upon the argument. But he is to be allowed for the points in the same manner as if they actually were a part of the case; that is, at the rate of twenty-five cents a folio for the draft, ten cents a folio for the copy to be signed by counsel, and for another copy for the printer, and the actual expense of printing all the other copies which may be necessary.
    Where the party who is to be charged with the costs upon the appeal wishes to avail himself of the objection that the points were unnecessarily prolix, he must make the objection before the taxation of the costs. And if the taxing officer, from an examination of the points in connection with the printed case, is satisfied that the objection is well taken, he must disallow the charge for the folios which were unnecessary.
    Whether the attorney, upon a writ of error to the court for the correction of errors, is entitled to charge by the folio for all the printed points which are required, for the use of the members of the court upon the argument of the cause ; curaatE ?
    This was an application for a re-taxation of the defendant’s costs upon an appeal from this court to the court for the correction of errors. The charges objected to, as to which a re-taxation was sought, were for drawing points for argument, thirty-six folios, at twenty-eight cents ; and for thirty-nine copies thereof, at seven cents a folio; amounting together to the sum of #108,36.

      April 2.

      A. Taber, for the complainant
    J. Holmes, for the defendant.
   The Chancellor.

At the time of the adoption of the present fee bill, as contained in the revised statutes, the points which were to be relied upon in argument constituted a part of the printed case, or cases, which were to be delivered to the court previous to the hearing. (See 6th and 12th Rules of April, 1827. 9 Cowen’s Rep. 288.) No separate provision for the draft or copies of points was therefore contained in the fee bill. Neither was the second item of the solicitor’s fee bill on appeals, intended to embrace the allowances to be made for the draft or the copies of points; which were otherwise provided for in that fee bill, as a part of the case. As a part of the case, the solicitor was entitled to charge for the points, twenty-five cents a folio for the draft and ten cents a folio for two copies, one to be signed by counsel and another for the printer ; and for the actual expense of printing the other necessary copies for the court and counsel, to be used on the argument. The allowance for engrossing of papers, mentioned in the second item, certainly could not' have been intended to apply to the numerous printed copies of papers which were to be furnished to the members of the court for the correction of errors at the hearing. For by a reference to the fee bill in chancery it will be seen that the allowance for engrossing is at the rate of fourteen cents a folio; and a charge for engrossment is only allowed where the paper is to be filed as a record of the court.

It is true that since the adoption of that fee bill the court, by an amendment of its rules, has separated the points from the other part of the case; the object of which amendment was to give to each party the full time, down to the commencement of the argument, to prepare his points and get them printed. Such in fact was the practice before the change in the rules took place; as the points were generally printed separately from the rest of the case. This slight modification in the rules, however, could not alter the legislative allowance for services which were substantially the same as before; nor authorize the solicitor to claim an exorbitant allowance for these printed copies, as engrossments within the meaning of the second item of the fee bill on appeals. The charges for these services must therefore be taxed at the same rate that they would have been, if the rules of the court had declared that the points should still be considered as a part of the case made and printed for the use of the court. The respondent’s solicitor must be allowed at the rate of twenty-five cents a folio for the draft of his points, and ten cents a folio for the two copies, to be signed by counsel and for the printer; and the actual expense of printing the necessary copies to be used on the argument.

No decision upon the construction of the fee bill in relation to writs of error can aid much in the settlement of questions upon that part of the fee bill which relates to the costs upon appeals. The language of the two sections of the fee bill, relative to the fees of solicitors and the fees of attornies, in the court for the correction of errors, is entirely different; neither is the amount of the allowance for similar services the same in both. The same difference also exists between the fees in the supreme court and the fees in the court of chancery. In the supreme court the allowance for copies and for engrossing is the same— twelve and a half cents the folio ; and no distinction is made between papers which are to be engrossed and filed as records, and copies of papers to be used for ordinary purposes. But in the court of chancery fee bill, the allowance for engrossing papers is double that of ordinary copies. And, as I have before said, none are to be engrossed except such as are eventually to be filed as records of the court. I have not, however, been able to find any decision of the supreme court in which it has been held that the attorney, upon writs of error to the court of dernier resort, is entitled to charge at the rate of twelve and a half cents for every folio in all the numerous printed copies of the points delivered to the members of that court at the hearing. And if such an allowance has been made by a taxing officer, upon the concession of the parties and without argument, it is not entitled to the weight of a judicial decision.

The objection in this case that the points were unnecessarily long, is not sustained by any thing in the papers before me on this application. Since the adoption of the rule requiring the authorities to be added to the points, as a part thereof, it would be difficult for any taxing officer, without seeing the points and knowing something of the questions in controversy between the parties, to say that it was impossible that points properly drawn could contain thirty-six folios, including the authorities relied on in support of them. If the party opposing the taxation wished the taxing officer to decide the question of prolixity, as he is authorized and required to do under the statute, (2 R. S. 653, § 5,) such party should have furnished him with the means of determining that question, by the production of a copy of the points, with a copy of the printed case, or in some other manner.

The costs must be re-taxed. Three cents are to be deducted from each folio in the draft of the points, so as to reduce it to twenty-five cents; two copies are to be allowed at ten cents a folio each; and the printer’s bill must be substituted in place of the allowance for the other thirty-seven copies. And the re-taxation is to be without costs to either party.