author: The Chancellor. The Chancellor

text:
    Bloomfield vs. Snowden and others.
    Where the bill was dismissed by a vice-chancellor, and an appeal was enter” ed from that decree, but the subject matter of the suit was sold intermediate the entering of the decree and the appeal, the chancellor refused to grant an injunction against the purchaser, who was not a party to the suit, on peti. tion; but permission was given to file a supplemental bill before the chan, cellor, and to move for an injunction thereon against the purchaser.
    It is not the practice to allow an injunction, affecting the rights of a party who has appeared, on an ex parte application to the court upon a supplemental bill; but regular notice of the application should be given to such party.
    If a temporary injunction is necessary to prevent irreparable injury before regular notice of the application can be given for a general injunction, the court will grant an order to show cause, and allow such temporary in* junction in the mean time ; but the temporary injunction falls of course, if the order to show cause is not made absolute.
    This cause was referred to the vice chancellor of the second circuit to hear and decide the same. He made a decree therein dismissing the complainant’s bill with costs. From that decree the complainant appealed to the chancellor. Pending this suit, and before the decree of the vice-chancellor was made, McDermut and D. &■ J. Ames acquired an interest in the subject matter of the litigation, by virtue of an agreement with the defendants, and became the equitable assignees of their interest in certain notes, the collection of which Was restrained by the injunction. After the decree of the vice-chancellor and before the entry of the appeal, McDermut and D. &J. Ames caused suits at law to be instituted for the recovery of these notes. The complainant thereupon presented a petition to the chancellor, praying for an injunction to restrain them from proceeding at law to recover the notes until the decision upon the appeal. McDermut and D. & J. Ames appeared by their counsel to oppose the application.

      T. Payne, for the complainant.

      J. Smith, for McDermut and Ames.

      March 15th.
   The Chancellor.

If the decision of the vice chancellor is incorrect, the defendants, or their assignees who have taken the notes with notice of all the equities between the parties, shou](j not be permitted to go on at law and collect the amount before the case can be disposed of on the appeal. But they allege that Bloomfield threatens to put his property out of his hands if they proceed against him on the notes; and that they have offered to deliver up to him the notes on his assigning over the property of the company, for the stock of which the notes were given. They also object that they are not parties to this suit; that, as the case is now situated, no decree can be made therein which will protect their rights ; and that the prosecution of the suits at law, is the only means they have in their power to compel the complainant to do equity. Under such a state of facts, I should be doing injustice to these assignees to stay their proceedings at law, even if I have the power to do so on this petition, when they are not parties to the suit. The application for an injunction on the petition must therefore be refused. But as the whole cause is now before the chancellor on the appeal, and all further proceedings in the cause may be carried on before him, the complainant must have leave to file a supplemental bill» setting forth the substance of what is charged in his petition) and such other matters as he may be advised to insert therein, and making all necessary parties. And if he elects to file such supplemental bill, he may apply thereon to the chancellor for an injunction, or for other relief, on such terms and conditions as he may think proper to propose.

On a subsequent day, the complainant having filed a supplemental bill, he made an ex parte application for an injunction to restrain the defendants therein from proceeding at law.

The Chancellor

said it was not the intention of the court to allow the complainant to apply for an injunction on the supplemental bill, without notice of the application to the adverse party. That the new defendants were made parties on the ground that they had succeeded to the rights of Snow-den since the commencement of the suit; and that due notice of the application for the injunction must therefore be served on the solicitor who represented their interest in this controversy. The chancellor also observed that it was not the practice of the court to grant an injunction affecting the rights of a party who has appeared, without giving him an opportunity to be heard on such application. That if there is no necessity for the immediate interference of the court, the complainant should serve a copy of his supplemental bill, or petition for an injunction, with a regular notice of the application upon the solicitor of the parties who have appeared in the cause, and who are to be affected by the injunction. If a temporary injunction is necessary in the mean time to prevent serious loss or injury to the complainant, and a sufficient ground is laid therefor, the court directs the petition or supplemental bill to be filed, and grants an order for the defendant to show cause at the next motion day, or other convenient time, why the injunction as prayed for should not be granted; and^in the mean time a temporary injunction is issued to prevent the anticipated injury. In such cases the temporary injunction falls, of course, if the complainant neglects to serve the papers on the adverse party, and to bring on the application at the time fixed by the court, or as soon thereafter as he can be heard.

An order to show cause was therefore granted in this case, and a temporary injunction was allowed to stay the executions at law in the mean time; but the court refused to restrain the defendants from proceeding to trial and judgment.


source: Caselaw Access Project

author: The Chancellor.

license: Public Domain

text:
    Douglass vs. Sherman.
    If it appears that the complainant had no right to revive the' suit, the defend-» ant may avail himself of the objection at the hearing.
    The provisions of the revised statutes, authorising the revival of the suit on motion or petition, extend only to those cases, where, by the former practice of the court, the proceedings could be revived and continued by a simple bill of revivor.
    Where, by the death of a party, his interest or title to the property in controversy is transmitted to the representative which the law gives, or ascertains, a simple bill of revivor, or a petition under the statute, is sufficient to continue the proceedings in favor of, or against such representative.
    Where, by the event which abates the suit, the interest of a party is tranmitted by devise or otherwise, so that the title to the property as well as the person entitled thereto, may be a subject of litigation in the suit, an original bill, in the nature of a bill of revivor and supplement, is necessary.
    The provision of the revised statutes authorising the representatives of a deceased complainant to- amend, relates only to such amendments as the deceased party might have made, if living; and does not authorise the insertion of any matters by way of amendment which have arisen since the filing of the original bill.
    Where the representative of a deceased complainant applies for an order to revive, under the statute, he should give notice of the application to the surviving parties who have appeared in the suit. And the order of revival should state the particular character in which he is permitted to revive and continue the suit; and the subsequent proceedings are to be entitled accordingly. '
    Where a person, claiming to be devisee of a deceased complainant who had filed a bill to redeem, obtained on an ex parte motion an order to revive the suit in her favor, held, that the defendant might, at the hearing, object that the suit was not legally revived.
    On a general devise of all the testator’s estate, real property acquired after, the making of the will, descends to the heir at law, and does not belong' to the devisee.
    The executrix of the mortgagor or of his grantee, having no interest in the premises, is not entitled to redeem; and cannot revive a suit for that purpose commenced by the testator in his life time.
    Where an executor applies to revive a suit, he must show that he has taken probate of the will of the decedent.
    March 15th.
    Sherman, the defendant, is in possession of a lot of land, claiming title to the same under a decree of foreclosure upon a mortgage executed by W. Brady and wife, in 1813. At the time the bill was filed to foreclose that mortgage, Edward Douglass was a judgment creditor of Brady, but was not made a party to the suit. He shortly afterwards, and before the decree of foreclosure was obtained, became the purchaser of Brady’s interest in the premises, under a sheriff’s sale upon his judgment. In April, 1820, he filed his bill in this suit against Sherman to redeem. The cause was heard on pleadings and proofs ; and in November) 1824, the chancellor made a decretal order, referring it to a master to ascertain the amount due on the mortgage, the costs of foreclosure, and the amount of the expenditures which the defendant had made on the premises since his purcháse ; the value of the premises, and of the rents and profits thereof, &c.; and that the complainant proceed upon the reference within three months, or that the bill be dismissed. On the 11th of February, 1825, the complainant died; and on the first of March thereafter, Hester Douglass, his widow, on filing an affidavit of that fact, and that he had made a will by which all his real and personal estate was devised to her, and that she was about to take upon her the execution of the will, obtained an order, ex parte, that her name should be inserted as complainant in the suit, and that the action proceed as in ordinary cases. A few days afterwards a copy of this order was served on the defendant, together with a summons to attend the master on the reference. The master having died, the order of reference was delivered to another master, who made his report in October, 1829. To this report exceptions were taken, and the cause now came on to be heard on those exceptions and upon the equity reserved.

      J. Radcliff, for the defendant,
    raised a preliminary objection, that the suit had not been properly revived. He contended that the present complainant was not the proper party to be substituted in the place of the deceased complainant ; and that the provisions of the revised statutes in relation to rivivals, had not been complied with. Sufficient did not appear to show that the present complainant had the right to redeem. The intestate may have been an alien. The heir at law might hereafter come in and claim the right to redeem; and we have had no opportunity to make this objection before. The order for revival was obtained upon an ex p»tie application. And he also insisted that if the complainant was allowed to file a bill in the nature of a bill of revivor and supplement, it could only be done upon payment of costs. (Shephard v. Merrill, 3 John. Ch. R. 423.)
    The counsel also read an affidavit of the defendant stating that he had, within a very few days, discovered for- the first time that the will under which Hester Douglass claimed the premises as' devisee, was .executed nearly six years before the testator had any interest in the premises. He therefore insisted that she had no interest in the controversy, and was not entitled to revive or prosecute the suit.

      J. Smith, for the complainant,
    insisted upon her right to revive the suit both as executrix and as devisee; and that the defendant was precluded from raising the • objection that the suit had not been properly revived after having so long submitted to the order substituting her as the complainant in the suit.
   The Chancellor.

It appears to be well settled that the defendant may raise the objection at the hearing that the suit has abated as to some of the parties, whose rights should be before the court to enable it to make a proper decree. And if it appears that the suit is not properly revived, or that the complainant had no right to revive, he cannot have a decree. • (Russell’s heirs v. Craig’s devisee, 3 Bibb, 377. Harris v. Pollard, 3 P. Wms. 348. Lasco and others v. Moyers, Bumb. 144.) The 107th section of the title of the revised statutes relative to this court, (2 R. S. 184,) and the subsequent sections of the same article, apply only to those cases where, by the former practice of the court, the proceedings could be continued by a simple bill of revivor. The representatives alluded to in those provisions are such as become so by operation of law on the death of a party; and not those who become so by devise, grant, or other title which may be contested in the suit. In the language of Lord Redesdale; “ Wherever a suit abates by the death, and the interest of the person whose death has caused the abatement is transmitted to that representative which the law gives or ascertains, as an heir at law, executor or administrator, so that the title cannot be disputed, at least in the court of chancery, but the person in whom the title is vested is alone to be ascertained, the suit may be continued by a bill of revivor merely.” (Mitf. PI. 4 Lond. ed. 69.) So also in the case of the marriage of a female plaintiff; as the sole fact to be ascertained is the person of the husband, a simple bill of revivor is all that is necessary to continue the suit. But where, by the marriage settlement, the interest of the property in controversy is vested in trustees, for the separate use of the wife and her issue, a bill of revivor alone is not sufficient ; but a supplemental bill is also necessary to bring the interest-of the trustees, &c. before the court. (Merriwether v. Mellish, 13 Ves. Rep. 161.) And in all cases where, by the death of a party, the suit is abated, and his interest or title to the property in controversy is transmitted by a devise, or in any other manner, so that the title as well as the person entitled may be a subject of litigation in this court, the suit cannot be continued by a bill of revivor. In such cases an original bill, in the nature of a bill of revivor and supplement, must be filed, on which the question of title may be put iff issue and litigated. (Huet v. Lord Say seal, Sel. Cas. in Ch. 53. Ryland v. Green, 4 Bro. P. C. 348. Backhouse v. Middleton, 1 Cas. in Ch. 174. Russell’s heirs v. Craig's devisee, 3 Bibb’s 377. Harrison v. Ridley, Comyn’s Rep. 589.) But in such eases, the purchaser or devisee will be bound by the former proceedings in the original cause, to the same extent that the heir would have been upon a bill of revivor1, (2 Vernon’s Rep. 672,) and the adverse party will be bound to the like extent, (id. 548.) It sometimes becomes necessary, on a simple bill of revivor, to call for an answer ; as in the case of an executor or administrator of a deceased defendant, to ascertain whether he has assets to pay the complainant’s demand. (Mitford’s Plead. 4 London ed. 76. Brownlow v. Duke of Chandos, Vern. Scriv. Rep. 109.) That case, as well as that of a necessary discovery from the person who has become the personal representative of a deceased defendant, was probably intended to be provided for by some of the new provisions incorporated into the revised statutes. (2 R. S. 184, § 113, 114.) The provision in the 115th section of the statute, authorizing the representatives of a deceased complainant to amend the bill, could not have been intended to authorize an assignee or devisee to amend the bill by stating' the nature of their title ; for. it is well settled that nothing can inserted in the original bill, by way of amendment, which has arisen subsequent to the commencement of the 'suit. (Usborne v. Balter, 2 Mad. Rep. 339.) The object of that provision undoubtedly was to put the executors, administrators, or heirs of the deceased complainant, on the same footing as to amendments, as the decedent was at the time of his death ,* and not to compel them to file a supplemental bill to obtain such alterations in the original bill, as could be properly introduced in the form of amendments.

The conclusion at which I have arrived, upon a full examination of all the authorities on the subject, is. that this was not a case in which the suit could be revived by making Hester Douglass complainant, as the devisee of her deceased husband, under the provisions of the statute then in force ; which, in this respect, were the same as. the present law. As executrix, she had no right to revive, the suit, or to redeem the land which belonged to- the heir or devisee. (Smith v. Manning, 9 Mass. Rep. 422. Lomax v. Bird, 1 Vernon, 182. Grant v. Duane, 9 John. Rep. 612.) And if the usual decree should be made in such a case, a neglect to redeem within the time limited would be no bar to the devisee or heir at law. Neither was this suit revived in her name as executrix ; for it appears on the face of the order that she had not yet proved the will, although she intended to do so thereafter.

The whole difficulty has arisen from the loose and irregular practice, which has in some cases been adopted, of permitting a person claiming a right to revive to be substituted in the place of the deceased complainant, under the statute, without any notice to the " other parties who have appeared in the suit. The proper course to be adopted by the heirs or personal representatives of a deceased complainant to revive the suit, under the 115th section of the revised statutes before referred to, is for them to apply to the court upon a petition or affidavit, stating the death of the complainant, and showing that they in fact sustain the character in which they ■claim the right to revive. ' And if they claim the right to revive as executors, it should appear that they have taken probate of the will. (1 P. Wms. 753.) Duo notice of the application should also be given to the solicitors of the other parties who have appeared in the cause, and who do not join in the application, so as to give them an opportunity to be heard as to,the right of' the applicants to revive. The order of revival should also state the particular character in which they are permitted to revive and continue the suit; and the cause-is to be entitled .accordingly, in all subsequent orders and proceedings therein. The original pleadings and proceedings are not however to be altered or amended by inserting the names of the new complainants. Such is not the meaning of that clause of the statute which authorizes the new complainants to amend the bill.

The order to revive in this case was not authorized by the statute, and was therefore irregular in form ; and no decree can be made in favor of the present complainant, in any character, until that irregularity is corrected. If the defendant is correct in supposing that the will, by which all-the real estate of Edward Douglass was devised to his wife, was made long before he acquired any interest in this property under the sheriff’s sale, she has no right to redeem in the character in which she has attempted to revive the suit, as nothing passed to her under the will as devisee. (Thompson v. Scott 1 M’Cord’s Ch. Rep. 32.) In that case the right to continue the suit belongs to the heir if there is one capable of taking by descent; and if there is none, it either belongs to the people of the state, by escheat, or it is extinguished.

It was suggested on the argument, that no injury could arise to the defendant by a decree in favor of the present complainant, as she had obtained a conveyance from the heir at law of the decedent since his death. Whether such a conveyance would be valid pending this litigation, and while the defendant was holding the premises adversely to such claim; and whether the person making the conveyance is capable of taking by descent, and many other questions of a like character, cannot be passed upon properly under this form of proceeding. The correct mode of litigating such questions is upon a bill, where the. defendant may put the questions of. fact in issue and examine witnesses thereto in the usual manner. Even on a proper application by an heir at law, to revive under the statute, if either his legitimacy or his alien-age was really a disputed question, the court, in its discretion might deny the application, and direct a formal bill of revivor to be filed ; so as to enable the defendant, either by plea or answer, to contest his right to revive.

The order of the first of March, 1825, and all subsequent proceedings, must be set aside as irregular and erroneous ; but without costs to either party, as the defendant was equally in fault with the present complainant, in proceeding under that order instead of moving to set it aside. Mrs. Douglass must be permitted to file a bill in the nature of a bill of revivor and supplement, if she shall be advised so to do, for the purpose of setting up her claim to continue the suit and to redeem, either as devisee under the will, or as the assignee or grantee of the heir at law of her late husband; and if she does not file such bill within three months, she is to be thereafter precluded from any further proceedings against the defendant, founded on the decretal order made in this cause during the life of her husband.

If any other persons, not now before the court, have the right to revive, 1 cannot at, this time make any order affecting them. The defendant, if he wishes to terminate the' suit as to them, must either proceed to revive, or take some other step on his part to preclude their right, or wait until it is terminated by the' lapse of time. Probably he may, on a proper application, be entitled to such an order as was granted in Pells v. Coon, (1 Hopk. 450 ;) requiring the alleged heir at law, or the attorney general, to proceed within a limited time, .if they shall be advised so to do, or that they be precluded.


text:
    The Washington Insurance Company vs. Slee and others.
    At law, where an execution is in the hands of the sheriff at the time of the abatement of the suit by the death of the defendant, the proceedings under the execution will not be stayed, as it can be executed without any further order from the court.
    But if a new execution is necessary, or any other proceeding which is either actually or constructively to be done by the court, the proceedings must be suspended until the judgment is revived by scire facias.
    It seems that the same rules prevail in equity; at least in favor of parties who have acquired rights under an execution, issued upon a decree previous to the abatement of the suit.
    Whether the purchaser at a master’s sale, under similar circumstances, would obtain a valid title where an order of confirmation is necessary before the sale becomes absolute ? Quiere.
    Where a decree cannot be carried into effect without a direct application to the court, an order for that purpose cannot be made after an abatement by the defendant’s death, and before the suit is revived.

      It seems that any thing which could be legally urged by plea or otherwise, as a defence to a bill of revivor, constitutes a valid ground of objection to an order to revive, under the statute.
    March 15th.
    This was an application to stay the proceedings on a decree of sale, upon the ground that the suit had abated by the «death of one of the owners of the premises. The facts are stated in the opinion of the court.

      S. A. Foot, for the petitioners.

      M. Hoffman, for the assignee of the decree.
   The Chancellor.

A general decree was made in this cause, which exempted a part of the mortgaged premises from a sale, on account of particular equities which existed in favor of the defendants, who were the owners of those portions of the premises. The residue of the premises appears to have belonged to the defendants Stevens and Aikin; and Slee also held a mortgage on the part belonging to Aikin. The whole of that residue was ordered to be sold under the direction of master Drake, and the proceeds thereof to be applied to the payment of the mortgage money and costs; and the balance, if any, to be brought into court. The decree was made in June, 1823, and the order of sale was soon after-wards put into the hands of the master to be executed. Chapman, one of the trustees of Mrs. Dyett, who had purchased Stevens’ interest in the premises about the time of the decree, subject to this incumbrance, soon afterwards paid the amount of debt and costs to the' complainants, and took an assignment of the decree to the Life and Fire Company, to secure them for a Joan of bonds which he had obtained from that compatiy, and by the sale of which he had raised the money paid to the complainants. The proceedings under the decree were then suspended. The master has since died ; so also has Aikin, one of the defendants, who was part owner of the premises directed to be sold. The interest of Mrs. Dyett’s trustees and of Chapman in the premises, has since been sold, under an order of this court, and purchased by Bache. He insisted that he purchased under the advice of counsel that this incumbrance or decree could never be enforced against the premises. The decree has passed from the Life and Fire Company, by assignment, to Jacob Barker; and,is now held by T. L. Wells, in trust for him, or for the estate of Mrs. Dyett, or for some other persons, whose interest does not appear in the proceedings. The suit has never been revived ; but in June last, Wells presented an ex parte petition to the court, showing the several assignments by which the interest of the complainants was vested in himself, and the death of, master Drake ; and thereupon, with the assent of the former solicitor, obtained an order substituting himself as the complainant’s solicitor, and authorizing any master to proceed and execute the decree. He was proceeding to sell under this order, when Bache presented the present petition to stay the sale, on the ground that the proceedings were irregular, as the suit had abated by the death of Aikin. The petitioner -also asks that the parties may be brought before the court, who are now interested in this litigation by assignment or purchase. The widow and children of Aikin have also presented a similar petition; but as that appears to be merely in aid of the petition of Bache, it cannot be material to notice it particularly. It appears that part of the factory lot was conveyed by Slee, as early as May, 1815; and the conveyance to Aikin, according to Slee’s affidavit, was in December thereafter. It therefore follows from the principles established in Clows v. Dickinson, (5 John. Ch. Rep. 225,) and other cases, that the owner of the factory has an equitable right to have the proceeds of the Aikin lot applied in satisfaction of this mortgage, prior to the application of the proceeds of the premises, which were conveyed to Slee at a previous date. Bache’s claim to stay the proceedings would therefore have been equally strong, without the aid of these" new allies, if the Aikin lot cannot be sold without reviving the suit.

I am not prepared to say there is no case in which the master would be permitted to go on and perfect a sale after the death of a party. At law, if an execution is in the hands of the sheriff at the time of the abatement of the suit by the defendant’s death, so that he can go on and execute the judgment without any further order or direction of the court, the abatement of the suit will not stay the proceedings under that execution. But if a new execution is required, or any other proceeding is necessary, which is either actually or constructively to be done by the court, the proceedings must be suspended until the judgment is revived by scire facias. In Warham v. Broughton, (1 Ves. sen. 181,) Lord Hardwicke seems to recognize this distinction as applicable to proceedings in this court. It certainly may be sanctioned, in favor of parties who have obtained rights under an execution issued upon a decree, previous to an abatement. But it may be doubtful whether the purchaser would obtain a valid title under a master’s sale, under similar circumstances; as the sale in most cases requires an order of confirmation before it becomes absolute. Such an order, though entered ex parte, in the register’s office, is constructively the act of the court; as much so as the issuing of an execution, by the clerk, in a court of law. Where the decree cannot be carried into effect without some positive act of the court supplying a defect in the proceedings or decree, it is evident there must be a revivor, or some other proceeding in the nature of a revivor or scire facias, before the benefit of the decree can be obtained.

In this case, the decree directed the sale to be made by a particular master, by name. That master is now dead, and has been for several years. It therefore became impossible to carry the decree into effect, without a direct application to the court for a new order, authorizing another master to proceed and sell the mortgaged premises. Such an order, could not be regularly made, while the. suit was abated by the death of a defendant whose property was to be sold under the decree. The order of the 14th of June last, so far as it authorized another master to proceed and sell the mortgaged premises under the decree, was irregularly and improvidently entered, and must be set aside. All proceedings under the decree, except such as may be necessary for the preservation of the property, must be suspended until the suit is revived.

Whether this is a case in which the suit can be revived on the petition of the original complainants, under the statute, or whether the assignee must file an original bill, in the nature of a bill of revivor and supplement, against the parties who now own the property; are questions which I am not prepared to decide without further argument. The revival by order can only be adopted where a simple bill of revivor was sufficient to revive the suit before the statute. It seems to follow that the same objections which might be raised by plea or demurrer to a bill of revivor, may be shown in opposition to a petition to revive under the statute; and if the assignment by the Washington company could be pleaded in bar to a bill of revivor filed by them, it is evident that the assignee must proceed by original bill, in the nature of a bill of revivor and supplement, in his own name, making all necessary parties thereto. '


text:
    Eager vs. Wiswall and Price.
    tVhere the master reported an answer insufficient, and upon exceptions to his report the same was confirmed by default, and a second answer was referred to the master upon the old exceptions, held that the defendants ■were precluded from objecting that the original objections were not1 well taken.
    If an answer is insufficient, the complainant must raise all his objections to it in the first instance, and he will not be permitted to make any objections to .the second answer which were raised by exceptions to the first.
    If any of the exceptions to an answer are not well taken, the defendant must have that question settled in the first instance, and before he submits to answer further, or he will be compelled to answer these exceptions fully, unless the court thinks proper to relieve him, on terms, from the consequences of his neglect.
    It is a matter of course to allow the complainant to inspect the hooks and papers of the defendant, referred to in his answer, and thus made a part thereof. And the defendant may be compelled to produce them within a reasonable time, although they are in the hands of his agent in a foreign country. '
    March 15th.
    This cause came before the court on exceptions to the master’s report as to the insufficiency of the further answer of the defendant Wiswall; and also.upon a petition of the complainants for the production of certain, books and papers referred to in the answer and in the further answer.

      H. Bkeckér, for the complainants.
    - JD. Selden, for the defendant Wiswall.
   The Chancellor.

If the exceptions to the first answer were well taken, it is evident the master is right in reporting the further answer is insufficient in the matters particularly mentioned in his report. It is however insisted that some of - the matters to which those exceptions relate are immaterial and irrelevant, and that the first answer was sufficient. 1 am inclined to think this was the fact as. to a part of the exceptions. It therefore becomes material to enquire whether the defendant is not precluded from making this objection by the coúfse which has been pursued in relation , to. the exoep- ■ tions.

< The original exceptions to the .answer for . insnñicency were allowed by the master. - The defendant then excepted to the report, for .the purpose, of bringing the 'question be-' fore the court. The latter exceptions were noticed for hearing on the part of the complainants,. and the defendant hav- ' ing nelgected to appear and argue the same, those exceptions were overruled ; and the report of the master was confirmed. He how. seeks to bring the same questions before the," court, by exceptions to the master’s report on the reference , of the further-answer oh the old exceptions.

In Crisp v. Nevil, (1 Eq. Ca. Abr. 35, 1 Ca. in Ch. 60, S. C. ) the defendant submitted to the master’s report", allowing the " exceptions, and then put in a further answer which met all the charges in the bill; but, in truth, the. exceptions, went beyond the bill. On a reference of the second answer, .the master reported it insufficient, because the exceptions were not fully answered. The defendant then excepted to. this .last report of the master. Btit Lord Clarendon - held him precluded in consequence of the first report which had been submitted to, and .decided that- he was bound to ansvver all the matters of .the exceptions. This appears-to be .a ease directly in point, although the case .under conside- ' .ration-is . stronger. Here the master’s first report was in ..fact confirmed, oh exceptions ■ thereto ; and that order, though obtained by default, still remains in force. It is. true ■, that in the subsequent, case of Finch v. Finch,, (2 Ves. sen. 491,) Lord Hardwicke held that the defendant was not absolutely precluded from raising a question, on the second re-1 port, which might have been raised by excepting to the first; although he admits it is a singular way of bringing the ques- , tion before the court. I should infer from the language'of the lord chancellor, that the same practice existed at that- time in the master’s office; in relation to the reference of a first answer, which Lord Eldon afterwards very properly corrected, in relation to the further answer in the case' Rowe v. Gudgeon, (1 Ves. & Beam. 331.) That" practice was for the master to report the answer'insufficient if he found one of the . objections thereto, well taken', without enquiring whether it, -was pr was not sufficient as. to the other points- excepted to.

The general principal of the court is that if the answer is insufficient, the complainant, must raise all his objections thereto in the first instance; and he will not be permitted to raise any objections to the second answer which were not made by exceptions to the first. This has indeed been carried so far as to preclude the party from raising-an excep. tion to the answer of the defendant to an amended bill, where," upon the same principle, he might have excepted to the original answer,but had neglected so to do. (Overy v. Leighton, 2 Sim. & Stu. 234.)

If this principle is correct when applied to the neglect of the complainant to bring his objections before the court the first opportunity, they are equally correct as applied to the defendant. In neither case is the party absolutely precluded ; because the court might, in a proper case, relieve him from the" consequences of his neglect, upon terms. And if the court saw that it was utterly impossible for the defendant to answer the exceptions in any different manner from what he had before done; or that by answering he might seriously criminate himself, he might be excused from answering" further. In that case however it' would be perfectly reasonable that he should pay the expense of the second reference. Here there is no real difficulty in making a perfect answer to these "exceptions; although it may subject the party to some little inconvenience, as well as to costs. If he wished to avoid that difficulty his remedy was by applying to open the order by which his exceptions to the first report of the master were overruled. The exceptions to the last report must therefore be disallowed with costs ; and the defendant must pay the costs and put in his further answer within ten days after notice of the order overruling his exceptions to the report, as fixed by the master. ' ■

The petition for the production of the books and papers refered to in the answer and further answer, must also be granted. It is a matter of course to permit the complainant to have the inspection of deeds, books and papers, referred to in the defendant’s answer, and thus made a part thereof. If they are . within his power, or urider his control, he must produce them within a reasonable time, although they are in the hands of his' agent, in a foreign province. (Farquharson v. Balfour, Turn. & Russ. Rep. 190, 206. Freeman v. Fairlie, 3 Meriv. 44.) Those which are in the actual custody .of the defendant, or within his power in New-York, must be produced within ten (lays ; and those ' which are. out of the state,, within such .'reasonable time as the master may allow for that purpose.-


text:
    Hammersley & Dyett vs. Barker & Chapman.
    If, by the complainant’s own act or procurement, the object of the suit is do-, ■feated, he cannot be permitted to discontinue withoutcosts.
    The provision in the revised statutes,which exempts the party dismissing his own bill from, costs in certain cases, only extends to those cases where prima facie he would not be chargeable with costs oh a decree dismissing the bill at the hearing; as in the case of suits by'executors in right of their testators.
    If the complainant, prima facie, would be chargeable with costs if the suit was ' decided against him at the hearing, the court will not examine the ’whple "merits of the cause merely to ascertain whether there are any equitable cir- , cumstances which might excuse him from the payment of costs.
    ■ This was an application" on the part of the complainants for leave to dismiss their bill as against' William Chapman without costs. . ■

      II. W. Warner, for complainants: -
    C. F. Grim, for W. Chapman.'
    March 15th
   The Chancellor.

The complainants in this cause filed

their bill to obtain relief against the assignment of a mortgage • and a decretal order of sale thereon, at that time in the hands of Jabob Barker; and which, was an incumbrance on the • manufactory which' formed the ' subject of phe litigation be • ■ tween" them and Chapman in another suit. Chapman was made a party"; and distinct relief was prayed against him, if they did not succeed in obtaining the relief asked for against the other defendants. , The factory has been sold, on the application of these complainants, and against the wishes, of Chapman. A ■ third'person became the purchaser; and as they allege, in 'trust for Chapman.. Since .that, sale, as appears from the papers., on the part of Chapman, the complainants have made some arrangement with the other defendants in this suit by which the mortgage and decree have been assigned to T. L. Wells for the benefit of the complainants, and he is now seeking to enforce the same ágainst that part of the factory on which it is á lien. They have also made an agreement With the other defendants in this cause by which the bill has been or is to be dismissed against them without costs. The complainants now ask for leave to dismiss their bill, without-costs, as against Chapman also. It is evident from this state of the case that they can have no object in going on with the suit. But Chapman has been put to great expense in defending himself against their claim, and the only questions seem to be whether the court is authorized to permit them to dismiss without costs ; and if so} whether this is a proper. case to exercise the power. In ordinary cases in this court costs rests entirely in discretion. But as the law has explicitly provided for this particular casé, of a complainant’s dismissing his own bill, it has fre. quently been decided that if the object of the suit had been defeated by the complainant’s own act or procurement, he cannot dismiss his bill without paying costs to the defendant. The revised statutes have not altered the law, on this subject, by excepting those cases where, according to the practice of the court, on a decree against the complainant at the hearing the defendant would not be entitled to costs. That provision was only intended to conform the law to the construction which had been given to the former statute. It includes those cases only in which, prima facie, the complainant would not be liable for cost, although he failed in the suit; as in the case of an executor or administrator, suing in right of his testator or intestate. It never could have been the intention of the legislature to compel the court to examine and decide upon the whole merits of the complainant’s original claim, for the mere purpose of ascertaining whether he would have been liable for costs at the hearing. I see nothing in this case to take it out of the rule which has been considered the correct construction of .the Statute in other cases. It is therefore unnecessary for me to look into the merits to see whether the complainants could have been excused from the payment of costs at the hearing.

The motion to dismiss without cost's must therefore be denied; but the complainants are at liberty to dismiss their bill ■ against Chapman, on payment of the costs of his solicitor,¡'to. be taxed. If they do not think .proper to adopt that course within thirty days, Chapman is to be at liberty to take such, steps as he may deem necessary to terminate the suit. The costs of opposing this motion, in either case, are to abide the event *, and may be taxed by the solicitor of. Chapman as costs in- the cause.


text:
    In the matter of Frits and others, infants. .
    The revised statutes have not divested the court of chancery of any of its powers as the general guardian ■ of the persons and estates of infants; neither do they prevent the chancellor, in court, from making an order for the appointment of a guardian, ■ or next friend, according to . the former •practice of the court. But where it can be done consistently with .the forms of the court, and without great inconvenience and expense, the court Will, in the exercise of its powers, conform to the spirit" of the statutory provisions.
    ' The revised statutes do not, in terms, .require a next friend to be appointed, for an infant plaintiff who joins with an adult, but it is ais necessary in that case to have a next friend appointed as in the case of a Sole plaintiff.
    The provision which directs1 the officer making the appointment of a next friend to take security" to the infant in certain cases, extends to cases where the infant sues jointly with others.
    Where a great number of infant legatees had a common interest in, the" prosecution of a suit, the court, on the application of the guardians of some of .the infants, in behalf of all the rest, appointed a next friend to prosecute a suit in the names and for the benefit of all the infant legatees.
    March 15th.
    This was a petition for a special order for the "appointment of a next friend for the infant grand children of J. Miller, deceased, who were legatees' named in his will; to enable. them to join with the adult legatees in a bill for the sale of certain, real estate ¡of the testator, to satisfy their legacies charged thereon.., The petition stated that .the testator, by his will, gave to Mary Frits and three other persons legacies of one hundred dollars each, and to the. petitioner,, and the. other-grand .children of the testator, indiscriminately, three hun-dred dollars,, to be divided among them equally; that the1 payment of the legacies was charged exclusively upon a farm which descended to the heirs at law of the testator ; that among the legatees were thirty infants, of different ages from three to twenty, residing in various and distant parts of the state, besides several adults ; that a sale of the property was necessary to satisfy the legacies ; that all the legatees were desirous to have a decree for the sale of the farm; and that it would be very inconvenient and expensive to the parties to procure the appointment of a next friend, for each of the infants, by an order of an officer out of court.

      I. McConihe, for the petitioner.
   The Chancellor.

The prayer of the petition in this case is perfectly reasonable and proper ; as it is pretty evident, that if these infants were all made defendants, and were compelled to put in answers by their guardians, in the usual manner, the expense would be more than the whole amount of their legacies, and probably more than the value of the land on which those legacies are charged. The only question is whether the revised statutes have taken away the power which this court formerly possessed, of directing a suit to be brought for the benefit of an infant, without any direct application from him ; or where he is incapable, from his tender years or otherwise, of presenting a petition. The second section of the title of the revised statutes, relative to proceedings by and against infants, (2 R. S. 446,) provides, that before any process shall be issued in the name of an infant who is sole plaintiff in any suit, a competent and responsible person shall be appointed to appear as the next friend for such infant, in such suit, who shall be responsible for the costs thereof. The third section directs the manner in which such appointment shall be made. Notwithstanding these sections do not in terms apply to suits where an infant is joined with an adult plaintiff, the appointment of a next; friend is as necessary to protect the rights of the' infant in the one case as in the other ; although in the latter case the defendant would have a remedy for his costs against the adult complainant. The fifth section, which authorizes the officer making the appointment to take security to the infant in certain cases, extends to all cases of suits brought by the next friend of an infant, whether the infant is sole plaintiff or joined with another.. The mode of appointment -prescribed by the statute must be adhered to in all cases where a next friend is appointed by an officer out of court. 'But a literal compliance with the fourth section is not practicable in all. cases ; as( it may be necessary to commence a suit in behalf of an infant who is too young to sign a petition, or even in behalf of a child in ventre sa mere. In such a case I think it would be competent for some relative" or friend to present the petition in behalf of the infant.-

On a careful examination of the statute, I am satisfied it Was not the intention of the legislature to divest the court of any of the powers it before possessed, as the general guardian of the persons and estates of infants ; or to prevent the chancellor in court from making an order for the. appointment- of a next friend of an infant complainant, or a guardian ad litem for an infant defendant, as had been usual before these statutory provisions were made. But this court has already decided that in the exercise of its power in this i’espect, it is proper .to conform to the spirit of'the statutory, provisions, so far as it may-be done consistently.with the forms of the court, and the convenience of suitors, and without unnecessary expense. (Knickerbacker v. Defreest and others, ante, 304.)

In this case it is proper that a suitable person should be appointed by the court for the purpose of joining in the suit With the adult legatees. - But the person proposed is the administrator, and may be a necessary party, to render an account of the personal estate; As it is possible- he may have to represent some interests, adverse to that of the infants, a different person must be selected as their next friend. Mr. McConihe, the solicitor for the .adults, is therefore appointed next friend of the, infants. It would be a. useless and unnecessary expense to execute a bond to each of the thirty infants in this ca'se. And as the premises must" be sold under. the direction of a master, if a sale is decreed, to pay the legacies, the court can control the fund without suffering it ' to pass into the hands of the next friend. The security may therefore be dispensed with, under the particuiar circumstances of this case.


text:
    Johnson vs. Thomas.
    Where a cause was argued before a former chancellor, but before a decision therein he went out of office, and also the complainant died; held that the cause could not be re-argued before the new chancellor without being re. vived.
    If the whole ground of the suit has been removed by the death of the complainant, the court will not hear an argument merely to determine a ques. tion of costs.
    In a suit at law, if the dowress dies before her right is established, her personal representatives have no remedy either for costs or for the mesne profits.
    If the husband died seised, the death of the dowress, pending a suit in his court for her dower, will not deprive her personal representatives of the arrears due at the time of her death; but they may revive the suit /or the purpose of obtaining such arrears of dower.
    But where the husband did not die seised of the premises, if a suit in chancery abates by the death of the complainant before her right to dower is established, the personal representatives are not entitled to any arrears of dower, and therefore cannot revive.
    The revised statutes, however, have now given the widow a better remedy for her dower, and a more extended right to damages for arrears, than was provided by the former law.
    April 5th,
    The complainant in this cause filed her bill to recover dower in certain real estate of which her husband was seised during his life time. During her coverture, she, in conjunction with her husband, mortgaged the premises to B. Walker, which mortgage still remains unsatisfied in the hands of Walker’s executors and trustees, under whom the defendant is in possession. The premises were also sold on a judgment against the husband, in his life time, and were purchased at such sale by Walker. This interest likewise passed to Walker’s executors and trustees under his will. A cross-bill was also filed by the defendant and the executors of Walker, setting up their rights under the mortgage executed by the complainant and her husband. The causes were heard before the late chancellor, in 1826 ; but before they were decided, the complainant died. The executor of the complainant now presented a petition to the .present chancellor, praying that a decree might be entered in the name of Ann Johnson, as of the time when the cause was originally argued, to enable him to 0j}tajn the mesne profits and the costs'; or that the suits might be revived in his name and brought to a hearing, for the same purpose.

      B. F. Cooper, for the executor.
    This court has decided, that where a defendant dies after the argument and before the decision of a cause, the decree will be entered so as to .relate back to the term ' when the argument was heard. Campbell v. Mesier, 4. John. Ch. R. 334, 342. 2 Fowler’s Exch. Prac. 169. Davis v. Davis, 9 Ves. 461. 2 Mad. 398.) There cannot, on principle,: be any difference between the case of a defendant’s and a complainant’s dying before the decision of a cause;'but if there be, the reason is .stronger in favor of a complainant than a defendant"; for, on1 the latter, the decree may be supposed to .operate injuriously,-and it can make no difference with - him whether the complainant or his executor receive the benefit. If a bill of interpleader be filed; and the complainant die after trial directed between the defendant's, a bill of -revivor is not necessary; for the défendants themselves are virtually defendants and plaintiffs, and may proceed against each other. In this, case there was a cross-bill, in which Ann Johnson was defendant, in relation to the same matter; and she Being both plaintiff and defendant, the case is perhaps within "the principle of the above rule. (Anoh. 1 Vern. 351.2 Comyn’s Dig. tit. Chan. Bills of Revivor, p. 410.) At common law, the death of a sole plaintiff or defendant, before final judgment, would have abated the suit; but if either party, after verdict, had died in vacation, judgment might have been entered that vacation as df the preceding term, and it would have been a good judgment at ■ common law as of the preceding term. And if either party ■die after a special verdict, and pending the time taken for argument or advising therein, or on motion in arrest of judgement, or.for a new trial, judgment may be entered at common law, after - his death, as of the term the postea was-returnable, or judgment will otherwise be given, nunc pro dune, that the delay arising from the act "of the court may not turn to the prejudice of the party. (Tidd’s Pr. 845, 6.) If courts of law can thus exercise an authority for the purpose of doing substantial justice, it would be surprising indeed if a court of equity could not do the same. Ut res magis valeat quam pereat. The court having had jurisdiction of the cause, will retain it to do substantial justice, and to afford the dowress a relief beyond that which she could obtain at law. (Curtiss v. Curtiss, 2 Brown’s Cas. in Ch. 620.) In this case, a bill of revivor and supplement, filed by the executors of the widow, she dying before decree, for the arrears of dower was sustained, and decree accordingly.
    But it is contended, that if a decree cannot be entered nunc pro tunc, the suit may be revived by the executor of the complainant. By the 7th section of the act concerning the court of chancery, (1 R. L. 489,) it is provided that “If the complainant shall die pending any suit wherein the cause of action shall not survive, his lawful representatives, and other persons interested by his death, may, on affidavit thereof and on motion in open court’ be made complainants in the suit, and be permitted to amend the bill as their interests may require; to which amendment the defendant shall be compellable to answer, and the action shall proceed to issue and trial as in ordinary cases.” By virtue of the provisions of this statute, the executor is entitled to a decree for one third of the mesne profits of the premises in question, with interest from the time the widow’s right accrued, and for costs for the defendant’s vexatious defence. If to this claim the defendant objects that the husband of the complainant did not die seised; that our statute in relation to dower, in R. L. 60, gave the widow, in such case, “dower of the lands according to their value, exclusive of the improvements made since the sale,” which can be recovered only in her life time ; and that the allowance of the one third of the mesne profits, with costs, would be against the provisions of the act in R. L. 57, sect. 2, which gives the widow damages only in case of a deforcement, and costs only where damages are recovered; (see Humphrey v. Phinney, 2 John. R. 484; Dorchester v. Coventry, 11 John. R. 510;) we answer that the assignment by metewand bounds is' but one of several methods of assigning dower, and belongs more particularly to real actions. In some cases there may be an alternate use of the property; in others an assignment of one, third of' the rents and profits ; and in others we think the court may decree to the complainant a gross sum, equal in. value to the amount of her interest in the premises when her right accrued, to be computed according to the rules of computation on an annuity for lives. (Swaine v. Perine, 5 John. Ch. R. 482, 495. Hale v. James, 6 John. ,Ch. R. 558. Coates v. Cheever, 1 Cowen's R. 476, 478, 9.) This court has long since decided," that if.the widow die before establishing her right to dower, it will, in favor of' her personal. representatives, decree an account of the rents and profits, since the ti'me her rights accrued. ( Curtiss v. Curtiss, 2 Bro. C. C. 620. 1 Fonbl. Eq. 22, 23, note.) ■ And it would, indeed be hard if a court of equity should, say that a defendant by a protracted defence to a suit for dower, could exonerate himself from accounting -for the mesne profits, for the time he unjustly withheld the possession. ' Again; we say that our act in 1 R. L. 57, sect. 2, is substantially á transcript of the statutes of Merton and Gloucester; the former of which it is true gave damages in case of a deforcement; and the later, costs, in case there were damages ; that the rules' in relation to damages and costs are rules of law, not of equity. They were established to regulate the proceedings upon writs of dower, and not upon bills in equity. Chancery did not assume jurisdiction in cases of dower until centuries after the passage of these acts ; and when it did so, it \yas to,relieve the dowress from the embarassments at law, and to give her complete relief. (1 Roper’s Law of Husband and Wife, 445.) A court of equity may not, it is true, where the husband does not die seised, award the damages given by the statute of Merton. But a court of equity will- give the dowress mesne profits from the . time her right accrued. (1 Roper, 435, 448, 9. 1 R. L. 57, section 2.) The widow is entitled to be endowed immediately on the death of her husband. This right draws after it the right of an account. The tenant in possession’may also be considered as a trustee for the widow. This court has never, been governed by the rules of the stát«tes of Merton and Gloucester. That this last position is •correct, appears from the decisions of this court in relation to costs ; for the court has asserted its right to give costs in Its discretion, whether the husband died seised or not, and has specified one class of cases where it will give costs, to wit, where the widow has demanded her dower before suit brought, (as she did in this case,) and the defendant has made a groundless defence, without any qualification as to the husband’s dying seised or not seised. (Hazen v. Thurber, 4 John. Ch. R. 604. Swaine v. Ferine, 5 id. 495. Hale v. James, 6 id. 258, 263.) If, then, the jurisdiction of this court was not altogether independent of the statutes of Merton and Gloucester, how could the court be justified in saying it would give costs in dower, as in other cases, as its discretion dictated ? Why would it not be confined in giving costs to a case of deforcement. The truth is, that the court has the conscience of the defendant in dower in its keeping, as much so as that of any other defendant; and where he will not voluntarily, it will compel him to do justice to the complainant. If, however, it be still insisted that the widow being dead there can be no recovery of the mesne profits, let us see whether the right to costs is extinguished, and what the statute, (1 R. L. 60 & 58,) and our decisions mean. The statute, I R. L. 57,) says, when the widow is deforced, the defendant shall yield damages to the plaintiff, &c. When she is not deforced, the statute, (1 R. L. 60,) says she shall recover for her dower of “ the lands sold by her husband, according to the value of those lands, exclusive of the improvements made since the sale.” The decision of the courts amount to nothing more than that, where the plaintiff is entitled under the statute to damages, she may have costs ; and that she shall not have costs where the defendant has pleaded tout temps prist, and the plaintiff, instead of praying judgment according to the tender, has persisted in going on to judgment, and in the end obtained only that which the defendant offered to assign her; or rather, the decisions are altogether silent about costs in such case; but neither in these decisions, nor in the statute, is it declared that the dowress shall not be entitled to costs where her husband did not die seised, but only that she may be entitled to costs where he did die seised. It is not imr probable that the phraseology, “ provided that dower of any lands sold by the husband shall be according to the value of the ]ancjs¡ exclusive of the improvements made since the sale,” was intended for no other purpose than to fix the amount of the specific value of the, land to be recovered as dower when the husband did not die seised, namely, that it should be the value of the land at the time of alienation, and not the value at the time of the seisin recovered; and it clearly never was intended, by the use of this language, that there should be ho recovery of the mesne profits according to that value, and no costs for an unconscientious defence to prevent such recovery. If the right of the executor be questioned in this cause, on the ground. that the interest of the dowress savors not of the personalty, but of the realty, it is answered that the widow has no estate until assignment; for the law casts the freehold upon the heir, on the death of the ances- ■ tor, and until dower is legally assigned, it is a right resting in action only. (1 Cruise, 159. 2 Gilbert on Tenures, 26. Jackson v. Aspell, 20 John. R. 411, 413. Jackson v. Van Derheyden, 17 John. R. 168.) If we are right in our opinions as to the powers of a court of equity, whatever may be the correctness of those with regard to courts of law, the executor is in conscience entitled to mesne profits, as the widow would have been entitled to them had she lived. There ■ is, it is believed, no precedent which forbids the granting such relief in England, and certainly there is none in this country; nor can any reason be assigned why the widow did not become possessed of the mesne profits in her life time, but the injustice of the defendant, or the delay of the court; and if there ever be a case in which a court of equity should discard the technicalities of the law, and no substantial justice between the parties, it is in a case of dower, a claim which even the law regards favorably, as it is the support and solace of the widow in the winter of her life,

      S. Beardsley, for the defendant,
    contended that no precedent could be found for this motion; that a decree could not be entered nunc pro tunc, where a different chancellor pre•sided from the one before whom the cause was argued; that damages could not be given to the widow where the husband did not die seised, and if she was not entitled to damages, that she could not recover costs; and that where the husband did not die seised, the widow could not, either at law or in equity, recover mesne profits. He cited 2 Atk. R. 141; Dormer v. Fortesque, 3 id. 132, and note: Embree v. Ellis, 2 John. R. 119 ; Humphrey v. Phinney, 2 id. 484; Mundy v. Mundy, 2 Ves. jun. 125.
   The Chancellor.

I think it would be carrying the principle too far to permit this cause to be argued before the present chancellor, without revival, and then to enter a decree nunc pro tunc, as at the time when it was argued before his predecessor. If the executor has the right to revive, such a course is unnecessary; and if the whole grounds of the suit have been removed by the death of the complainant, it would be against the settled practice of the court to hear an argument of the original merits of the cause, merely for the purpose of determining a question of costs between the parties. (12 John. R. 500. 1 Sim. & Stu. 39. 3 John. Ch. R. 317, Mad. & Geldart’s R. 365.)

Where the dowress brings her action at law, if she dies before her right is established, her representatives have no remedy for costs, or for the mesne profits of the premises after her right accrued. By the statute of Merton, (20 Hen. 3 c. 1; R. L. of 1813, p. 57, § 2,) she could only recov. er damages, in cases where the husband died seised. And even in cases coming within that statute, if she had not made a formal demand of dower, before suit brought, the defendant at law might plead that he had been always ready to assign the dower, and thus excuse himself from damages and costs. But in chancery the rule is different. There, if the husband died seised, the widow may recover against the heir,, or devisee, her share of the rents and profits from the time the right accrued, although no demand was made previous to the commencement of the suit. Mundy v. Mundy, 2 Ves. jun. 122. Russell v. Austin, 1 Paige’s R. 192. Hazen v. Thurber, A John. Ch. R. 604.) In such cases the death of the dowress, pending the suit in this court, does not deprive her personal representatives of the arrears of dower; but they may revive, for the purpose of having the right fir such arrears determined by the decree of the court. And the question of costs will be decided, upon the same principles Which would have governed the decision of this court previous to her death. ' '

It is however insisted on the part of.the defendant in this suit, that as the husband did not die seised, the wife could not have recovered any arrears of dower, if living. If he is right in that position, the petitioner cannot revive merely to settle the question of costs. It is evident that, under the statute which was in force at the death of the complainant, no damages for arrears of dower could have been recovered at law ? and the question is whether this court, in a direct proceeding here for the dower, will give to the complainant a more extensive remedy. At common law, and before the statute of Merton, the widow could in no ease recover damages in an. action of dower at law ; and this court had not at that time assumed- jurisdiction of suits for dower, except in, those cases where the tenant interposed some equitable defence, or proceeding to prevent her recovery in the common law courts. Since the passing of that statute, courts of law have permitted the tenant to interpose a technical defence, to the claim for damages and costs, that he has always been ready to assign dower, but that the plaintiff has never demanded it of him-Even at law, however, the plaintiff was entitled to recover the value of the use of one 'third of the premises, from the death of the husband, if this pléa was not interposed, or if a demand was proved. (Dobson v. Dobson, Cases Temp. Hardw. 19.) In this court, under the equity of that statute, the heir or devisee, who have actually received the widow’s share of the rents and profits of the premises, has been considered as holding the same in trust for her, although a formal demand of dower had not been made. Roper seems to take it for granted, that the court of chancery would go still further ; and give to the wife a remedy for arrears of dower in cases not embraced by the statute of Merton. (1 Roper’s Husband & Wife, 449.) He admits however that the case of Deher v. Hunter, in the court of exchequer, in 1719, (Bunb. Rep. 57,) is against him on this point. And he cites no case in which a court of equity has given to the complainant arrears of dower, oh a direct proceeding for that purpose, where the husband aliened the premises before his death. In the absence of all authority, I do not think myself justified, under the circumstances of this case, to decide that the executor has a right to revive, and to recover the arrears of dower, deducting therefrom his proportion of the mortgage, which is a previous incumbrance on the premises. The revised statutes have given- to the widow a better remedy for her dower, and a more extended right to damages for the detention thereof, than that which existed at the commencement of this suit. There cannot therefore be any reason for extending the equitable principles heretofore established, with a view to future cases. ■ ,

r The petition is dismissed in this case, but without costs.


author: The Chancellor.,

text:
    Colvin vs. Colvin.
    Where, up oil a bill filed by the husband for a divorce, a vinculo matrimonii, a decree dissolving the marriage contract was made, and after enrolment both ' parties joined in a petition to the court, requesting that the enrolment of the decree might be opened and vacated, and the decree reversed, the court granted an order according to the prayer of the petition, and dismiss ed the complainant’s bill ¡ but without prejudice to the rights which third persons might have acquired Under the decree.
    April 5th.
    The complainant filed his bill in this cause to obtain a divorce. ' The defendant put in her answer thereto, and a reference was made to a master to take proofs of the adultery charged in the complainant’s bill. On the coming in of the master’s report the usual decree was made dissolving the marriage contract between the parties; and prohibiting the defendant from marrying again during the life of the complainant. After this decree had been regularly enrolled, both parties joined in a petition to the court, requesting that the enrolment of the decree might be opened and vacated ; that the decree might be reversed, and the parties restored to all the rights and privilegés which they had previously enjoyed ; and that the -complainants bill and all other papers filed in the cause might, be taken from the files and destroyed.'
   The Chancellor.,

The decree in this cause having been duly and regularly entered upon the admissions contained in the answer of the defendant, and upon proofs which prima facie established the facts charged in the bill, the court cannot make any order which will affect the rights of third persons, acquired under the decree, although the complainant states, on oath, that he is now satisfied the defendant was not guilty of the adultery charged in the bill.- If the defendant has contracted any debts, or if either of the parties have sold or disposed of any property, where the other ought to have join? ed in the sale if the marriage had continued, the rights acquired by the creditor, or purchaser, must be protected. It would therefore be improper for the court to order the proceedings to betaken off the files and destroyed. But I see no valid objection to granting the other part of the prayer of the petitioners. The right to a dissolution of the marriage contract is one which, under certain circumstances, may be insisted on by the injured party, or may be waived, at his election ; and-public policy, so far from requiring the right to be enforced is in favor of condonation or forgiveness in all cases. In England, even in cases of adultery, the vinculum of the marriage is not dissolved by the sentence of the ecclesiastical court. The parties are merely separated from bed, board and marital cohabitation, until they shall be reconciled to each other ; and neither is permitted to marry in the lifetime of the other. ( Poynter’s Marriage & Divorce, 182.) It there becomes, a matter of course to alter the sentence so as to permit the parties to resume their connubial rights, upon a proper application to the court and due proof of their reconciliation, unless the marriage has been actually dissolved by act of parliament. Here the marriage is in fact dissolved ; and so long as the decree remains in force,, one of the partiés is prohibited from marrying again even to the former husband or wife. If the parties should cohabit, without applying -to the court to open the .decree, all the issue of such illegal intercourse would be illegitimate. When so many learned divines, from the almost inspired author'of “ The Pastor of Hermas” down to the present day, had either denied or doubted the right of the innocent party to re-marry after a divorce for adultry? this court ought not to refuse to open the decree, in any case, upon sufficient evidence of forgiveness, and where no third person can be injured thereby. But more especially is it proper in this case where the complainant states on oath that since the making "of th'e decree he has become satisfied, by proofs and facts which have come to his knowledge» that the defendant was not guilty of the crime of adultery.

An order must therefore be entered, opening the en. rolment, and vacating the decree entered in this cause, and directing the complainant’s bill to be dismissed; but without-prejudice to the rights which any third person may have acquired under the decree. And to prevent any one who has no interest in, this question from disturbing the peace of this family, the register is directed to seal up the pleadings and proofs, together with the master’s report; and not to suffer them to be copied or inspected, except by the special permission of the court.

         See Dr. Ireland’s Nuptia Sacra.


text:
    G. H. & E. Striker vs. Mott and others.
    A party who has merely a future, contingent interest in an undivided share of real estate cannot sustain a suit for a partition of the property.
    A mere reversioner, without the concurrence of any of the owners of the present interest in the premises, has no right to file a bill for partition.
    But a reversioner is a necessary party, where a bill is filed by a person who is owner of an undivided share of the reversion as well as of an undivided share of the present interest in the property.
    The reversioner is also a necessary party, where the suit is brought by the owner of an undivided share of the premises for life, orof anyotherparticular estate in the same, and some of the other parties own the residue of the premises In fee.
    April 5th.
    This was an appeal from the decision of the vice chancellor of the first circuit. The bill was filed for the partition and sale of a house and lot in the city of New-York, which formerly belonged to the grand father of Mrs. Mott and of the complainants ; and also for an account of the rents and profits of their grand father’s estate. The,principal question in the cause arose upon the construction" of the will of J. Hopper, the grand father. He "devised his property* to his three grand ' children and to their heirs forever, to be disposed of by his ex-. ecutors and the survivor of them, or the administrators of such survivor, as follows: “ The said real estate shall not at any time hereafter be sold or alienated, but my said executors and the survivor of them, or the execu tor or administra, tor of such survivor, shall from time to time lease or rent the ,same on such terms and for such rent as they may deem most advantageous to my said heirs; and the" rents, issués and profits thereof shall be annually paid by my said executors and the survivor of them, or the execut ors or administrators of such survivor, to my heirs, in equal proportions. And in case my said heirs and devisees shall die without lawful issue, then, and in such case, my will is that the share of the one so dying shall be and enure to the sole use, benefit and behoof of my said grand children and the survivor of them and the heirs of such survivor forever.” , .
    The vice chancellor decided that the complainants were not entitled to a partition, and dismissed the bill so far as " it sought a partition of the premises; but directed an account of the rents and profits received by the executors , and trustees under the will. From this decision the complainants appealed to the chancellor. ■

      J. R. Hedley, for the complainants.
    ' TV. Slosson, for the defendants.
   The Chancellor.

I think the' vice chancellor decided correctly in refusing partition in this case. The executors, under the will, and such person as should be the personal representative of the survivor, if both executors died during the continuance of the trust, took, by implication of law, an estate in trust during the lives of the three grand children. And the ■ complainants and Mrs. Mott are each entitled to a contingent or conditional fee in'one third of the remainder of the estate, provided they have issue living at their deaths with cross remainders if either dies without issue. The complainants are not. entitled tq a partition of the present interest in the premises; as that is vested in the executors in trust to pay one third of the rents and profits to each of the grand children. And they cannot claim a division of their future estate in the premises, as it is not yet ascertained that it will belong to them at the determination of the particular estate vested in the executors.

Besides, I am not aware of any case in which a party who had a mere reversionary interest in an estate has been permitted to apply for a partition, without the concurrence of the owners of the present interest. A reversioner is sometimes a necessary party to a bill in partition; but it is where the owner of a present interest in an undivided part of the premises has also an interest in an undivided part of the re-' version. In such cases .it is proper for such owner of the present interest to make the owner of the residue of the reversion, as well as those who are interested in the residue of the particular estate, parties to the suit; so that an entire share may be set off to the complainant in severalty. It is also necessary to make a reversioner a party to a bill filed by an owner of a particular estate, when some of the other parties interested in the residue of the premises are the owners of a present interest thereof in fee. But I can see. no possible benefit which one tenant in common of a reversion, even if he has an absolute estate therein, can derive from a partition of his future interest in the property. He ought not therefore to be permitted to file a bill merely for the sake of making costs, or to compel a sale of the property of his co-tenant. The sale, where it is permitted, is merely incidental to the partition; and is resorted to for the purpose of preventing a sacrifice of the property by a division. As the reversioner can derive no benefit from an actual partition of the premises during the continuance of the particular estate, he ought not to be permitted to commence a suit for the mere purpose of compelling a sale of the property during that period ; or to subject other parties to costs prematurely and unnecessarily.

The decree of the vice chancellor must therefore be affirmed, with costs.; and the cause must be remitted to him, that such further proceedings may be had therein as may be necessary.


text:
    Livingston vs. The Peru Iron Company and others.
    Where the vendee applied to the vendor to purchase a lot of wild land, and represented to him that it was worth nothing except for the purpose of a sheep pasture, when he knew there' was a valuable mine on the lot, of the existence of which the vendor was ignorant, held, that this was such a fraud as would avoid the purchase.
    Although a simple suppression of the truth by one of the parties to a contract may not be sufficient to authorize a court to set it aside, yet if any thing is ' said or done to mislead or deceive the other party to the same, the court will grant relief against the contract.
    The court of chancery will not compel a specific performance of a contract if the complainant intentionally concealed a material fact from the defendant, the disclosure of which would have prevented the making of the contract. Where the vendor is dead, all his heirs at law should be parties to a bill to set aside the sale on the ground of fraud upon the part of the vendee.
    If the vendor makes a subsequent conveyance, while the fraudulent vendee is in actual possession claiming the land under his prior purchase, the subsequent conveyance is inoperative; and a suit to set aside the first sale . must be brought in the name of the vendor, or of his legal representatives if he is dead.
    • The bill in this cause was filed by the son and 'grantee of John Livingston deceased, to set aside the conveyance of a lot of land, on the ground of fraud. The bill stated among other things, that Palmer, one of the defendants, applied to J. Livingston to purchase the land in question, which was then wild and uncultivated, and that lie falsely represented to Livingston that the same was of little or no value except for a sheep pasture, for which purpose he wanted the lot; whereas in point of fact he had previously discovered a valuable ore bed on the premises; which fact he fraudulently concealed from Livingston. The- bill also stated that in consequence of this representation and fraudulent concealment, Livingston was in-, duced to sell 164 acres of land to Palmer at $2 per acre ; when the ore bed alone was worth $70,000.
    The Peru Iron Company demurred to the bill for Want of equity. They also showed for special grounds of demurrer, that it appeared by the bill that the complainant was not the sole heir at law of his father; that the conveyance to him, in January 1820, while the defendants were in possession claiming the land as their own under the previous conveyance, was void by the statute against buying pretended titles; and that all the heirs at law should have been made parties to.the

      J. L. Mason, for the defendants.
    All the heirs at law of John Livingston should have been made parties to the bill. The mere concealment by Palmer, one of the defendants, of the fact of his discovery of the ore bed on the premises purchased from John Livingston is not such a fraud as will authorize a court of equity to set a side the sale. (Whelan v. Whelan, 3 Cowen’s R. 560. Chitty on Contr. 223. Sugd. Vend. 1. The Dos Hermanos, Green claimaint, 2 Wheaton’s R. 78. Fox v. Mackreth, 2 Brown’s Cas. in Ch. 420. Lessee of Eichelberger v. Barnitz, 1 Yeates’ R. 307. 2 Kent’s Com. 377, 380, 381. Dale v. Roosevelt, 5 John. Ch. R. 174. Vernon v. Keys, 12 Fast’s R. 632. Sugd. Vend. 3, and. note.) A false affirmation as to value is not a ground of setting aside a contract for the sale of land. The complainant is not entitled to a decree upon the case made by his bill. (4 Kent’s Com. 438.)
    /. Van Orden, for the complainant.
    The conveyance to Palmer was void. The fraud committed by him is a sufficient ground to authorize the court to set it aside. (Monell v. Colden, 13 John. R. 395. Sugden’s Law of'Vend. 193, 246, 289. 1 Fonbl. Eq. 70, 71.) The conveyance to the complainant by John Livingston was valid. If it cannot otherwise operate, it will be considered as a testamentary disposition, which • an adverse possession cannot defeat. (Jackson v. Sebring 16 John. R. 515.)
   The Chancellor.

Upon the merits of this case the demurrer cannot be sustained. I am not aware of any case in our own courts, or in England, where the simple suppres-" sion, by the buyer, of a fact which materially enhanced -the value of the property, has been deemed sufficient to set aside the sale, on the ground of fraud. The rule is different where the purchaser applies to a court of equity to enforce the spe-. cific performance of an agreement. In such a case this court will not enforce a specific performance of the contract, if the complainant has intentionally concealed a material fact from the adverse party, the disclosure of which would have prevented the making of the agreement; but he will be left to his remedy at law. it .has even been questioned by many whether the suppression of a material fact by the ' one party, of which fact he knew the other' party to be ignorant, was not of itself sufficient to avoid the contract on the ground of fraud. Thus in Perkins v. M’Gavock, (Cook’s Rep. 417,) the court of errors and appeals in Tennessee say, it is a sound principle of equity that each party to' a contract is bound to disclose to the other all he knows respecting the subject matter materially affecting a correct view of it, unless ' common observation would have furnished the information. They also say thát the neglect to disclose facts within the knowledge of one party, and not of the other, would in equity be considered a concealment which is both immoral and unjust. Although our courts have not gone that length, yet, even in this state, very slight circumstances, in addition to the intentional concealment of a fact, have been considered sufficient to constitute a fraud upon the other party. Thus in Wendell v. Fosdick & Davis, (13 John. R. 325,) where the defendants had taken a deed of land which they afterwards ascertained had no actual existence, and after this they sold and assigned their interest under that deed to the plaintiff without disclosing to him that fact, he was permitted to recover against them for the fraud. So also in Monell & Weller v. Colden, (id. 395,) where the vendor of a water lot, knowing that the purchasers wanted to buy the lot for the purpose of obtaining the privilege of a wharf, represented to .them that the owners of land bounded' on the water had a right by law to apply to the commissioners of the lánd office for a grant of the privilege to build a wharf adjacent to the land, whereas he in fact knew that the lands under the water had been previously granted, the purchasers were allowed to recover for the fraud. And in a recent case before Lord Eldon, he adverts to the general principle that parties dealing for an estate have a right to put each other at arms length ; and that if the purchaser knows there is a mine upon the estate, and the vendor makes no enquiry, the former is not bound to give him information thereof. But he says “ very little is sufficient to affect the application of that principle. If a word, if ai single word, be dropped which tends to mislead the vendor, that principle will not be allowed to operate. ” (Turner v. Harvey, Jacob’s R. 178.) And certainly if the purchaser does any act, or makes any declaration, with the intention of misleading the seller and preventing him from ascertaining the real situation of the property, and at. the same time conceals from him a fact which he knows to be material, he is guilty of a fraudulent deception.

From the statement in the bill this case appears to be one of that description. The defendant Palmer had discovered a valuable mine on the lands of Livingston, whjch were then wild and uncultivated and lay remote from the residence of the latter. Knowing that he could not obtain the land if he discovered the fact of the existance of the mine, he does not content himself with making a bargain, in the language of Lord Eldon, at arms length ; but he falsely and fraudulently represents the the land as being of no value except for a sheep pasture, and states that he wants it for that purpose. By this deception the vendor is thrown completely off his guard, and he contracts to sell the land at the usual rate or price, of. rough broken land in that region, instead of directing his agent, near the premises, to enquire and ascertain its true value.

But I think there is an insuperable objection to the complainant’s recovering upon his bill in its present shape. Al-' though the conveyance of the land was obtained by a fraudulent misrepresentation, it was not void. It was- only voidable, at the election of the vendor. And the defendants or some of them were in the actual possession of the premises, claiming title to the same under their deed, at the time of the conveyance to the complainant. The legal title to this property could not pass to the complainant, under that conveyance, while it was thus held adversely. If John Livingston was still living he would be a necessary party to a bill to rescind the sale on the ground of fraud. Since his death, all his heirs at law, or the devisees of this particular part of his estate, are necessary parties. I lay out of question what was 1 said on the argument as to this conveyance to the complainant being in the nature of a testamentary disposition of his property, to carry into effect a previous arrangement. The deed of January 1820, is not set up in the bill as a devise of the estate, but as an absolute grant; neither is it stated to have been executed in due form of law as a will of real estate.- •

The demurrer must therefore be allowed, with liberty to the complainant to amend his bill by making all the heirs at law, or the devisees of John Livingston, parties thereto, on payment of costs. And if he does not amend -within' sixty days, the bill must be dismissed, with costs to the defendants.

It may be proper however to suggest that if the fact is, as stated by the defendant’s counsel, that John Livingston devised no part of this land to the complainant, but that he actually made a -will by which it was devised to other persons, under the general, description of all the residue of his estate, no amendment can help the complainant. In that casé it will be necessary to dismiss the bill in this suit, and to bring a new action in the names of those to whom the legal title passed on the death of John Livingston, if they shall be advised to proceed further in this matter.

       See The King of Spain v. Moichade, 4 Russ. R. 225 ; Cuff v. Platell, id. 242; Makepeace v. Haythorne, id. 244.


author: The Chancellor

text:
    S. & J. F. Jenkins vs. Wilde and others.
    A master has no authority to allow an injunction, to stay proceedings at law after judgment, except upon the terms prescribed by the- statute; and if the injunction has been issued without depositing the amount of the judgment, and giving the bond as required by the statute, it will be set aside for irregularity.
    If the suit at law is not at issue, the master should direct the provision direct- ' ed'by the -33d rule, to be inserted in the injunction, unless the injunction is founded on a mere bill of discovery.
    If issue has been joined in the suit at law, the master should take the bond and security, as directed by the statute in such cases, and direct that it be filed with the proper ofiicer before the issuing of the injunction.
    Where there has been a verdict, the master should ascertain and direct the amount to be deposited ; and if. a judgment has been obtained, he should not only direct the amount of the judgment to be deposited, but should also take' a bond and security to answer the. damages and costs, in case the ' injunction should be dissolved.
    None but the court, after verdict or judgment, can dispense with the actual deposit of the debt and-costs, before the issuing of the injunction.
    If the register or clerk discovers that the statute relative to injunctions has" .not been complied with,' íy.the injunction master, he should not issue the process without the special directions of the court.

      April 7th.
    In this case the master allowed an injunction to restrain proceedings in a suit at law, after judgment. The certificate on which the order for the injunction was obtained did not state that a judgment had been rendeied. The injunction was therefore issued without depositing the amount of the judgment and without filing a bond with sureties, as required by the statute. (2 R. S. 189, § 141.)
   The Chancellor

ordered the injunction to be set aside for irregularity. He said the statute was imperative ; and that the master had no authority in such a case to allow an injunction to stay the proceedings on a judgment, except upon the terms prescribed by the statute. That it was the duty of the master to ascertain from an examination of the bill, the situation of the suit at law ; and if no issue had been joined, he should, in his certificate, direct a provision to be inserted in the injunction according to the thirty-third rule, permitting the party to proceed to judgment; unless it was a bill of discovery merely. That where the suit at law was at issue, it was the master’s duty to take from the complainant a bond and security, as required by the 139th section of the statute ; and to specify in his certificate that such bond was to be filed with the proper officer before the issuing of an injunction. That if a verdict had been obtained in a personal action, the master should ascertain the amount of the debt or damages recovered by the verdict, and of the probable costs in the suit, and should specify in a certificate the sum to be deposited. If the ver diet was in a real or mixed action, he should take from the complainant a bond and security, as required by the 144th section. And if a judgment had been rendered in the cause, the master should direct the full amount of the judgment and costs to be deposited ; and should also take a bond and security for the payment of the plaintiff’s damages, by reason of the injunction, and such costs as might be awarded to him in this court. That no one but the chancellor or vice chancellor, before whom the bill was filed,, had a jight to take a bond and security in lieu of the actual deposit of the money, after verdict or- judgment. And that even the court could not dispense with the security in any of the cases mentioned in the 5th article, (2 R. S, 188,) unless there had been actual fraud in obtaining the verdict or judgment. The Chancellor further statéd,' that in every case where* an injunction .was obtained' contrary to the statute, or to the thirty-third rule of the court, the defendant might apply and have it set aside for irregularity, with costs. And that if the register "or clerk, with whom the bill was filed, discovered that the master had allowed an injunction contrary to the provision of the statute or to the standing .rules, he might decline to -enter an order'for the injunction on the master’s- certificate, and refer the question to the court.