text:
    Oakley vs. The Trustees of Williamsburgh and Moore.
    1837. January, 23.
    The trustees of the village of Williamsburgh are not authorized by the village charter to alter the grade of a street, after the grade thereof has been regulated and established by them as directed in the act of incorporation. And where such trustees were proceeding to dig down and alter the grade of a street, which had been regularly graded and regulated ; Held, that the owner of adjoining lands, whose property would be seriouslj" injured by an alteration of the grade, was entitled to an injunction to restrain such illegal proceedings of the trustees.
    The court of chancery has jurisdiction to interfere by injunction to restrain the defendant from proceeding in an illegal act which will necessarily cast a cloud upon the complainant’s title to real estate, and will naturally diminish its value.
    This was an appeal from the vice chancellor of the first circuit, refusing to grant an injunction. The bill of complaint in this case, which was filed by the complainants in behalf of themselves and all others having a common interest with them, after setting out that part of the act of incorporation of the village of Williamsburgh which made it the duty of the trustees to cause a survey and map of the village to be made, exhibiting the streets, roads and alleys to be permanently laid out, and also exhibiting on such map all the gradations and regulations which might or should be required in the roads, alleys and streets, accompanied by such remarks and explanations as the nature of the subject might require, to be kept by the clerk, subject to the inspection of the freeholders and inhabitants of the village, so that no person could plead ignorance of the plan to be adopted for opening, laying out, levelling and regulating the streets of such village, (Laws of 1827, p. 276, § 19,) stated that, in pursuance of their act of incorporation, the trustees of the village caused such survey and map to be made, signed and filed, as directed by the act, except that the gradations of the streets were not exhibited on the map; that such gradations were omitted on the map because the formation of the surface of the ground rendered it impossible to comply with that part of the provisions of the statute immediately; for which reason the grading of the streets was left to be established by actual survey from time to time, as it should become necessary to open such streets; that in 1828, the trustees caused a survey and profile to be made of the southerly section of First street, running from Grand street along the margin of the East river to the south bounds of the village ; and caused such survey and profile to be filed with their clerk, and caused the street to be graded and levelled in conformity thereto ; and setting out the certiorari, &c. in the supreme court upon which these proceedings of the trustees were confirmed; (See Coles v. The Trustees of Williamsburgh, 10 Wend. Rep. 659;) and that the trustees subsequently caused similar sections of second and fourth streets and several other streets intersecting the same to be laid out, and surveys and maps and profiles thereof to be made and filed in the same manner, and caused the said streets, or certain sections thereof, to be levelled in conformity with such surveys; and that one of them, South Second street, had been paved and the assessment therefor had been made and collected or paid. The complainants then charged or alleged, in their bill, that one of them owned large and valuable tracts of land on the southerly section of First street, and on the other streets which had been so graded and levelled; and that others of the complainants respectively owned lands on such other streets; some of which lands had been purchased since the regulation and surveys of the said streets, and upon the faith thereof as the permanent plan for the grading and levelling of those streets ; and that no change or alteration in the gradation of such streets could now be made without serious detriment to the rights and interests of the complainants in relation to their lands ; but that the trustees of the village, upon the petition of the majority of the land owners on the south easterly section of First street, in June, 1836, passed an ordinance or resolution to alter the grade of that street as thus permanently settled, and to re-regulate and pave the street; and that they had employed the defendant Moore to cut down and alter the grade of the street about six feet; which, if permitted, would require a corresponding alteration of the grading of the other streets, upon which some of the complainants’ property was situate, and which intersect the south section of First street; and that the re-grading of First street, if carried into effect in the' manner contemplated in the ordinance, would materially impair and injure the value of the complainants’ property.They therefore asked for an injunction to restrain the defendants from proceeding to alter the grade of the street as-theretofore established, and from digging down the street or removing the earth therefrom. An order to show cause why an injunction should not issue having been granted,the defendants introduced affidavits showing that the alteration of the grades of the streets was necessary for the benefit of the village,- and more particularly for the convenient use of the waters of the East river for commercial purposes ; whereupon tjie vice chancellor made an order deny-ing the application for an injunction.-

      J. H. Lee & D. B. Ogden, for complainants.

      Ebenezer Griffin, for the defendants.
   The Chancellor.

If the trustees of the village of Williamsburgh have the power, under their act of incorporation, to alter the grade of the streets of the village after it-has been once regulated and established by them as required by the 19th section of that act, the case before me is not one in which it would be proper for this court to interfere as there is no pretence that the trustees are acting in bad faith, and without reference to what they honestly believe-to be for the interest of the inhabitants of the village. . On the other hand, however, if they have no such power as- . they have assumed to exercise by the ordinance in question, then this appears to Be a very proper case for the allowance of an injunction, to restrain an illegal proceeding by them to dig down and alter the grading of the street as originally established, which, as alleged- in-the bill, will be a material injury to the value of the property of these complainants. The assessments upon their lots for the expenVes of the proceedings to alter the gradations of the streets, although they might be so far void as not to affect their legal title to the land, would of themselves be a cloud upon that title which must necessarily diminish the value if it did not entirely prevent the sale of such lands as village building lots; as a prudent man would not be likely to buy a City or village lot for the purpose of building thereon, and pay the full value of the lot, while a cloud like this was hanging over the title, which might thereafter subject him to litigation if not to actual loss of the property. And as this court sometimes exercises its jurisdiction for the purpose of removing a cloud from the complainant’s title to real estate, it may also, in a proper case, interpose its authority to prevent the illegal act from which such a cloud must necessarily arise. (Petit v. Shepherd, 5 Paige’s Rep. 493.) The decision of the present case, therefore, depends upon the question whether the trustees of Williamsburgh have the right, as claimed by them, to alter the regulation and grading of their streets after it has been once adopted and established. For it is judicially settled by the decision of the supreme court, in reference to this particular street, that the grade thereof had been legally established by the trustees, before the institution of the proceedings now in question to re-regulate the street and to grade the same anew.

The object of the legislature, by the 19th section of the statute, appears to have been to have a permanent plan of the village made and adopted by the trustees, not only as to the location of the streets, roads and alleys, but also as to the regulation or gradations thereof; to which plan all subsequent proceedings should conform. Hence, it was made the duty of the trustees to cause a survey and map of the village to be made and filed, as soon as conveniently might be, exhibiting the streets, roads and alleys to be permanently laid out, and also exhibiting all the gradations and regulations which would be required in such roads, alleys and streets. And it appears to me that the making of this survey and map of the locations and gradations of the streets, roads, &c„ of the village was not only a useless proceeding, but was also calculated to deceive those who might thereafter become the owners of village property, if it was not intended to confine the proceedings of the trustees to the opening and inproving the streets, &c. according to the' locations and gradations as thus established. And I think there could not have existed a reasonable doubt as to the intention of the legislature thus to restrict the power of the ■ trustees if it had not been for the introduction of the word altering into the subsequent sections of the act.

The 21st section of the act provides that it shall be lawful for the trustees to order and direct the pitching, regulating and paving the streets according to the' map and survey, and the altering, amending and cleansing any street,vault, sink, &c.and to cause estimates of the expense to-be made, assessed and collected, &c. And the 24th section contains a similar power as to the widening and altering streets and highways already laid out, and as to the laying out and making other roads and streets, conformable to the map, as' the trustees might think necessary and convenient ; with a provision for compensating the owners of lands for the property thus taken for new streets, or the alteration of the old ones, and for raising the amount by assessment upon the owners of lands benefitted thereby. It is under the power af altering streets, as- given in the 21st and 24th sections, that the counsel for the defendants claim the right to- change the location or to alter the grade of streets which have been located or graded, in conformity to the general map and plan of improvements, subsequent to the act of incorporation. In this I think the trustees have entirely mistaken the meaning of the legislature in relation to the alterations which they were, by these sections, authorized to make. At the time when this act of incorporation was passed there were roads or streets already existing within the chartered limits of the village. And as a general plan of improvements was to be made and adopted by the trustees, both as to the location and the grade of every street, alley and road in the village, it was anticipated by the legislature that it might become necessary for the trustess to alter the grades and locations of the old roads and streets, so as to render them conformable to the general and permanent plan of the village, as well as to pitch, regulate, pave and open the new streets, according to the map and survey. Hence the necessity of providing for the alteration of streets in the 21st section, which relates to the pitching, regulating and paving, as well as in the subsequent section regulating the manner of altering and widening old streets and opening new ones. The word altering, therefore» in both of these sections, related to the old streets and roads which existed at the time of passing the act of incorporation, and not to the new streets which might thereafter be laid out, opened or graded in conformity to the map and survey, and to the grade as first adopted by the trustees. And these trustees have no power or authority to change or alter the grade or location of any such new street after it has been once established by them, in conformity to the map and survey and gradation first established, or of any of the old streets after they have been made to conform to such general plan. The defendants have no legal power therefore to alter the grade of this southerly section of First-street, or of the adjacent streets which have been thus regulated and graded.

The inhabitants of this village, however, are not. without remedy if the interest of the public requires a correction of any mistake which the trustees may have made either in laying out streets or in fixing the gradations thereof. For it is perfectly competent for the legislative power which directed a general plan of the village to be adopted and adhered to by the trustees, to authorize them to make such alterations in the plan as may be found necessary either in regard to this particular street or as to the streets of the village generally. And if the legislature shall think proper to authorize such alterations, it will be for the same power to prescribe the proper mode of ascertaining who are injured by such alterations, and of compensating them for such injury.

There is no ground for the objection in this case, that the complainants have waived their rights by delay, or by any acquiescence in the proceedings of the trustees. They protested against the. alteration of the grade of the street the first opportunity they had for that purpose ; and they followed it up with an application to this court for redress when they found that the defendants were determined to proceed notwithstanding such protest.

The order of the vice chancellor must therefore be reversed, with costs, and an injunction must be granted to restrain the defendants from proceeding with the proposed alteration of the former gradation of the street as originally established by the trustees,


source: Caselaw Access Project

author: The Chancellor.

license: Public Domain

text:
    Fish vs. The Mayor, &c. of Rochester.
    1837. January 23.
    Where the chartered limits of the city of Rochester included a street which before the incorporation of the city had been regularly laid out and appropriated to the public use as a common highway; Held that the .city corporation had, by its charter, power and authority to improve, level and grade such highway as one of the streets of the city, without making-compensation to the owner of the adjacent land for .damages sustained by him in altering the grade of and levelling such street.
    Whether the earth necessarily removed in altering the grade of a street in the city of Rochester, and which is not wanted" for the improvement of the same street, belongs to the corporation or to the owner of the land-over which the original highway was laid out 1 Q,Mffire.
    This was an appeal from a decision of the vice-chancellor of the eighth circuit, refusing an injunction to stay the proceedings of the corporation of the city of Rochester in levelling, grading, and macadamizing Monroe street in front of the complainant’s dwelling house and premises. The bill charged that the corporation, by its superintendants'and agents, was proceeding to dig down and remove the earth of the street in front of the complainant’s premises,* under color of an ordinance to macadamize and grade Monroe street, which street was originally laid out as a public highway or state road, but was now within the chartered limits of the city; by which proceedings, the complainant alleged his premises would be irreparably injured. He also charged, in his bill, that under the ordinance for grading and macadamizing Monroe street he had been assessed $136, for the improvement j which assessment the corporation intended to collect, although he was not benefitted, but was actually injured thereby to the extent of from fifteen hundred to two thousand dollars. The vice chancellor decided that the common council of the city were authorized by their charter to pass the ordinance and improve the street in the manner contemplated ; and that as the land over which the street was laid out had been originally dedicated to the public, or been paid for when it was laid out as a public highway, the owner of the adjacent land was not entitled to any additional compensation for the injury his premises might sustain by the exercise of the right of improving the street in a reasonable manner. And as the complainant had not alleged in his bill that the defendants were exercising their authority, to improve the street, in bad faith and without reference to the convenience of the public, that this bill for an injunction could not be sustained. The injunction was therefore refused, and from this decision the complainant appealed.

      M. T. Reynolds, for the complainant.
    The acts of the defendants were unauthorized and unconstitutional, as there was no payment or offer of payment of the damages to the appellant, and no appraisement was even made. If the defendants have the power, by the charter of the city of Rochester, to improve streets by levelling, &c. it should not be exercised so as to work a positive injury, or destruction of property, or even to affect individual rights, In this case the extent of the grade was unnecessary for the convenience of the travelling public, for whose use the improvement is designed. No municipal corporation has the power to take private property for purposes of ornament merely,
    The defendants have no right to appropriate to their own use the soil of the street removed in making the excavation, Such soil is the property of the owner of the fee— the public having only the right of way over the land. And the defendants ought also to be restrained from collecting their assessment, as they are only authorized to assess persons who are benefitted by the improvement. (Const. Art. 7, § 7. Gardiner v. Village of Newburgh, 2 John. Ch. 162. 1 Black. Com. 141. Canal Com. v. The People, 5 Wendell, 452. 6 Cowen, 518. Varick v. Smith and Att’y. Gen’l. 5 Paige, 137. 2 Kent’s Com. 339. In the matter of Albany street, city of New-York, 11 Wendell, 149, and cases cited. 1 Kent’s Com. 452. 2 id. 296. 2 John. Ch. 473,463. 1 Paige, 416. 3 John. Ch. 282. 1 Paige, 448. 6 John. Ch. 439. 1 Hopk. 419. 5 John. Ch. 101. 2 John. 362. 1 Bur. 143. 6 East, 154. 3 Kent’s Com. 432.)

      A. Taber, for the defendants.
    The ordinance providing for the grading and macadamizing the street' in question is clearly within the‘powers conferred upon the defendants by the charter of the city of Rochester. An assessment of the damages, &c. occasioned by the levelling and grading of the street was not necessary, as the charter makes no provision for an assessment; and as the assessors appointed to apportion the expense of the improvement decided that the complainant was benefitted and not damaged by it, and there has been no appeal from their assessment. No private property has here .been taken for the public use. The common council assumed no such power. The complainant either dedicated the lands occupied by the street to the public, or he received his compensation therefor according to law when the road was laid out; and he was compensated either by the enhanced value of his property in consequence of having the highway there, or in money received for his damages. The public acquired not only a right of way over these premises, but also a right to the use of the soil for every purpose necessary to the enjoyment of that privilege. (15 John. 453. 6 Pick. 48.) In cities the streets belong in a more complete manner to the public than country highways. (8 Wendell, 85.)
    The complainant had a remedy at law. It is a trespass, if any thing, for which redress can be had—not an irreparable injury. (Jerome v. Ross, 7 John. Ch. R. 315.) The complainant should have sought his remedy by mandamus or certiorari to review the proceedings of the common council.
   The Chancellor.

It appears from the complainant’s bill that what is now Munro street, in the city of Rochester, was long since laid out as a public highway or road, under the authority of an act of the legislature of this state.It must, therefore, be presumed that the then owner of the premises dedicated the land to the use of the public, as a highway or street; or that he received compensation therefor in conformity to the laws then in force on that subject. The vice chancellor is therefore correct in supposing that the public have not only acquired the right of passage, but also the right or privilege of levelling, grading, or otherwise improving the street in such manner as shall render it most convenient and beneficial to the public for the purposes for which it was thus dedicated or taken, and in reference to the present and future situation of that part of the country, as well as its situation when the road was laid out. And as the present state of improvements at that place have thrown it into the chartered limits of a city, the public have a right to improve it in such a manner as to render it a convenient street or passage for the dense population of a city, and in reference to city business, without paying any further compensation to the owner of the soil over which such street passes, or to those who have succeeded to his rights.

By their charter, the common council of the city of Rochester are made commissioners of highways for the city; and it is their duty to regulate and give directions for repairing, preserving and improving the highways, streets, alleys, &c. and they are empowered to grade and improve the same, in the manner provided for in the ordinance in this case. (Laws of 1834, p. 313, tit. 7, § 1 and 10.) The legislature having given to the corporation the discretionary power and authority of deciding when and in what manner the streets and highways shall be regulated, graded and improved, this court is not legally authorized to interfere with or control that discretion, unless it is exercised in bad faith. so as to amount to a fraud , upon the rights' or interests of the complainant. As no sütíh allegation is made in this bill, his remedy, if he has any, is in a different tribunal.

So far as relates to the injury, if any, in removing the earth or gravel which is necessarily taken out in reducing the grade of the street, and using it in repairing dr improving other streets of the city, it cannot form a proper subject of relief in this court even if the complainant is right in supposing that such earth or gravel belongs to him. It is not alleged in the bill that he either offered or was willing" to make the necessary excavation himself, and that the" common council refused to permit him to have the sand and gravel so removed ; and they certainly were not bound to remove it for him and to deposit it in such place as he should direct.- I believe it is the common practice of public officers having the care of public roads, to take the’ materials which are removed from one part of the highway, under their direction, in improving the road at that point, and deposit them wherever they may be wanted for the repair or improvement of the highway in other places ; even be*yond the boundaries of the lands opposite to where the materials were taken.- The only restriction upon this power of which I am aware, is that contained in the 126th section-of the title of the revised statutes relative to highways and bridges, (1 R. S. 525,) which gives to the owner or occupant of land over which a highway is laid out, the use of the trees thereon, except such as are requisite to make or repair the highways or bridges on the same land. This legislative restriction of the right to use trees, or limiting it to repairs of the road within the same lands, appears to be founded upon the supposition that without such restriction they might be used to repair or improve other parts of the highway; and as the restriction is confined to trees, other materials may be used beyond the bounds of the land from which they are taken. Trees, when cut down, may be left without much inconvenience by the side of the' highway, until the owner of the land through which the road runs has a reasonable time to remove them. But when it is necessary to excavate earth or gravel, it must be removed entirely, or the work cannot be completed, and must be done anew. And it cannot be deposited upon lands adjacent to the highway without the consent of the owners of such lands When in a state of removal, therefore, it does not appear to be susceptible of any distinct ownership, ^except in those under whose authority or by whom such removal is made.

This does not appear to be a case in which, by the city charter, an appraisal of damages is necessary, before the common council can proceed to grade and improve a road or street already laid out and paid for, or otherwise dedicated to the public. The decision of the vice chancellor, therefore, appears to have been right in this case, in refusing the injunction as asked for by the complainant, and the order appealed from must be affirmed, with costs.


text:
    Cuyler vs. Moreland and others.
    Mo person is authorized to appeal from a decree or order of a vice chancellor unless he is injured Or aggrieved by it. And á party who is aggrieved by one part of a decree only, cannot by appeal call in question another part of the decree in which he is not ihterested.
    Where an execution against the property of the defendant in a judgment has been issued to the proper county, and has been returned unsatisfied, the plaintiff may file a creditor’s bill, founded thereon, although he has subse- : quently issued a second execution to another county, and which execution has not yet been returned by the sheriff, if such execution has not been levied upon property belonging to the defendant sufficient to satisfy thd amount due.
    Where the right to file a creditor’s bill once exists, by the return of an execution unsatisfied, if the defendant has property which is the proper subject of a sale on execution, but which has been fraudulently assigned or incumbered, and has other property which can only be reached by a bill in equity, the plaintiff in the judgment may take out a second execution for the purpose of obtaining a specific lien upon the property which is a proper subject of sale on execution, and may then file his bill in chancery for the double purpose of removing the fraudulent obstruction to his second execution at law, and of having both species of the defendant’s property applied to satisfy the judgment debt.

      1837. January 23.
    The levy of an execution upon property of the defendant which is not sufficient to satisfy the whole judgment debt, is only a bar to a scire facias, or a suit upon the judgment, pro tanto; and such a levy cannot be pleaded in bar of the suit or scire facias generally.
    This was an appeal from a decision of the vice chancellor of the eighth circuit. The complainant having recovered a judgment in the supreme court against the defendant James Moreland, issued an execution thereon to the sheriff of Ontario county, where the defendant then resided ; which execution was returned unsatisfied. Two or three years afterwards he issued another execution to Monroe county, to which the defendant had then removed, and where he was in possession of real and personal estate, which he denied to lie his when the sheriff came with the execution. The complainant thereupon, and before the return day of the last execution, filed his bill in this cause against J. Moreland, and his brother Samuel Moreland, Fosmire, Burnet, and several debtors of J. Moreland, stating these facts, and also charging that the real and personal property in the hands and possession of the judgment debtor or some interest therein was claimed by S. Mooreland, Fosmire and Burnet; and that such claims were fraudulent, and intended to cover the property . which really belonged to J. Moreland, and to keep it from his creditors. The usual injunction upon a creditor’s bill was thereupon granted against J. Moreland; and the defendants who were alleged to be his debtors, were enjoined from paying the amount of their several debts to him, S. Moreland,' Fosmire and Burnet were also restrained from selling the farm or- the personal property thereon. By the answers of the two Morelands and- Fosmire, it appeared that the farm was purchased by the Morelands in 1835, charged with bonds and mortgages for the purchase money and other prior incumbrances, to the extent of several thousand dollars, in favor'of Burnet and others; and that a few days before the issuing of the last executions, the Morelands sold the farm to Fosmire, and received several of the notes now held by them against other defendants in.part payment, and took a bond and mortgage from Fosmire for the residue of the purchase money beyond the amount of the previous mortgages upon the premises; that Burnet had a mortgage upon a part of the personal property for the security of a bona fide debt; that a part of the sheep on the farm belonged to another person; and that the residue of the personal property had been divided between J. Moreland and his brother a few days before the filing of his bill; all which transactions were fair and bona fide. Several other matters of defence were set up by J. Moreland in his answer, but as they were in no way responsive to the bill it is not necessary to notice them here. Upon the coming in of this answer the Morelands and Fosmire applied to the vice chancellor to dissolve the injunction; and he dissolved it so far as it applied to the property of Fosmire and S. Moreland, but directed it be continued as to the residue of the personal property, choses in action and equitable interests set forth in the bill. From this latter part of the order of the vice chancellor, Fosmire and the two Morelands ap* pealed to the chancellor.

      J. V. L. Pruyn, for the appellants.

      M. T. Reynolds, for the respondent.
   The Chancellor.

This appeal appears to have been improperly brought in the names of all these appellants jointly, as some of them appear to have no interest in reversing that part of the decision of the vice chancellor to which the appeal relates. Ho one can appeal from an order or decree who is not injured thereby. And even a party who is aggrieved by one branch of a decree does not thereby acquire a right to call in question another portion of the decree which has no bearing or effect upon his rights and interests. (Steele v. White, 2 Paige's Rep. 478. Idley v. Bowen, 11 Wend. Rep. 227.)

The principal question presented upon the merits of the case is, whether a judgment creditor, who has exhausted his remedy at law by the issuing of his execution to the proper county and having the same returned unsatisfied, loses his right to file a bill in this court, to reach the equitable interests and choses in action of the defendant, by subsequently taking out a new execution and attempting to collect _ his judgment out of property which he has reason, to suppose the defendant has since acquired; and must wait until the new execution is also returned unsatisfied. If the last execution is actually levied upon property of the defendant sufficient to satisfy the judgment, to which property there is no adverse claim, and which ought to be applied in payment of the debt instead of proceeding against the equitable interests and choses in action of the. defendant, in this court, it will unquestionably be a bar to a suit here. But a levy under the second execution, upon property which is not sufficient for that purpose, is only a bar to a suit or scire facias upon the judgment pro tanto; and such a levy cannot be pleaded in bar of the suit- or scire facias generally. (Peploe v. Gallins, 4 J. B. Moore’s Rep. 163.)' And it ought not to have the effect of delaying the complainant from proceeding to collect the residue of his judgment, from the other property of the defendant which cannot be reached by execution, after he has once exhausted his remedy by execution against the estate of the debtor. If the defendant has the means of paying the debt it is his duty as an honest man to apply his property for that purpose at once, instead of keeping his creditor out of his lawful due, whose family perhaps is suffering for the want of it. And if the defendant will not do what justice and. equity reqúires of him in this respect, he has no right to complain that his creditor avails himself of any legal means to obtain satisfaction of his whole debt with the least possible delay. Where the right to file a creditor’s bill in this court once exists, therefore, by the return of an execution unsatisfied, if the defendant has either real or personal property which is a proper subject of sale on an execution, but which is fraudulently transferred or incumbered for the purpose of protecting it from the execution of the creditor, and has other property which can only be reached by the aid of this court, the judgment creditor may sue out a second execution, so as to obtain .a specific lien upon the property which is subject to -sale thereon, and may then file a bill in this court for the double purpose of removing the obstruction which has been fraudulently interposed against the execution at law, and also to reach other property of the defendant which cannot be sold on such second execution. The objection to the bill on the ground of multifariousness could not, therefore, prevail, even if the defendants had not waived it by neglecting to make any such objection in then answer. And as it is not alleged that the defendants’ property levied on by the last execution, and against which no counter claims existed, was sufficient to pay the complainant’s judgment, the vice chancellor was right in retaining the injunction against the equitable interests and choses in action of J, Moreland. It does not appear whether the farm sold to Fosmire, which is bound by the lien of the judgment, is actually worth more than sufficient to satisfy the liens thereon for the purchase money, &c. which are .entitled to a preference in payment. But even if it was, the equitable interests and choses in action of J, Moreland ought to be applied to the payment of the judgment, instead of resorting to a sale of this farm in the hands of a bona fide purchaser.

That part of the decretal order of the vice chancellor which is appealed from must therefore be affirmed, with costs.


text:
    Wood and others vs. Vandenburgh and others.
    Where the father by his will devised all his real and personal estate to one of his sons charged with the payment of several legacies to the other children of the testator ; and by a written agreementbetween the father and the son, the father covenanted not to revoke or alter the will without the consent of the son, and to give to him the immediate possession of the property, in consideration of which the son covenanted to support the father, and his mother during their respective lives, and to support his sister while she remained unmarried; and the son died in the life time of the father leaving the mother and unmarried sister surviving him, having by his own will directed his executors to sell his real and personal estate, including that devised to him by his father’s will, and after paying debts and funeral expenses to place the residue of the proceeds at interest and to pay such interest to his parents during their lives, except the interest of $500, which he directed to be applied to the education of his nephew together with a part of the principal if necessary, and having also, by his will, directed his executors to pay the several legacies bequeathed to his brothers and sisters by his father’s will, and to support his parents and his unmarried sister, according to the agreement with his father and to distribute the residue as directed in his own will; and the father, after the death of his son conveyed all his property to the executors to be disposed of according to the will of the latter; Held, that the proceeds of the property, except so much thereof as was necessary for the support of the parents and unmarried sister, must be disposed of in the same manner as if the son had survived and made bis will after the death of his father; that the support of the parents and unmarried sister was in the nature of ja debt due from the son under the agreement and must be first paid ; that the legacies given by the father’s will must next'be provided for as a charge upon the estate devised to the son ; and that the residue, if any, must then be disposed of according to the other directions in the son’s will.
    1837. January 23.
    And the will of the son having given to the unmarried sister a share of his residuary estate, after the death of his parents, in lieu of the provision for her support under the agreement with the father; Held, that she was bound to elect between such provision and the share of her residuary estate under her brother’s will.
    ¡General legacies, although given for specific purposes, as for education or maintenance, must, as between themselves, all abate rateably in case of deficiency, unless there is something in the will of the testator indicating his intention that one should be paid in preference to another. Bút a legacy of piety, for the erection of headstones at the graves of the testator’s parents or other near relatives, does not abate rateably, and should be paid in full.
    A direction, to the executors to erect a monument at the testator’s own grave is not a legacy, but is to be considered as a part of the decedent’s funeral expenses, where the rights of creditors are not affected.
    Legacies which are not mere voluntary bequests, but which are founded upon a previous indebtedness or other valuable consideration, do not abate rateably with other general legacies; as the legatees in such a case take their iegacies as purchasers.
    Where the provisions of the will and situation of the testator’s property were such as to render it proper for the executors to take the opinion of the court of chancery in relation to the rights of the several parties Interested in the property, the costs of the executors, and of the guardians ad litem of the several defendants who were infants, were directed to be paid out of the estate.
    The bill in this cause was filed by the executors of Jacob G. Vandenburgh, deceased, to obtain a construction of his will, and the direction of the court as to.the distribution of his estate among the several persons having claims upon the same, under the following circumstances: In January, 1825, G, Vandenburgh, the father of the decedent, and one of the defendants in this cause, being possessed of a considerable real and personal estate, made his will and thereby devised all his real and personal estate to his wife for life; and, after her death, he devised the real estate, and the personal property not specifically bequeathed, to his son, the decedent ifi fee, charged with the payment of the following legacies within six years añer the death of the testator, to wit: $100 to his daughter Sally, the wife of J. Van Valkenburgh; $100 to-the children of his daughter Susan, wife of G. Vanderwerken; $200 to his daughter Catherine; $100 to his daughter Catalina, the wife, of L. Ryersdorf; $100 to his daughter Getty, the wife of P. Ryersdorf. At the time of the making of this will G. Vandenburgh the testator and his son Jacob G. the decedent, entered into a written agreement, under their lands and seals, referring to the will and its several provisions, by which it was agreed that the decedent should go into immediate possession of the property thus devised and bequeathed, to him, and use and enjoy the same, upon the condition that he should support his father and mother during their natural lives, and support his sister Catherine while she remained unmarried. And the father, on his part, agreed that he would not alter or revoke his will without the approbation of the decedent. Under this agreement the latter entered into the possession of the property and supported his parents and his unmarried sister until his death in 1828 ; and his mother died in 1829, leaving the father and sister Catherine surviving. Jacob G. Vandenburgh, by his will, after providing for the payment of his debts and a few specific legacies of small amount, directed his executors to sell his real and personal estate at such times as they and his father should deem best, and after paying debts and funeral expenses, to put the money at interest, and to pay the interest thereof to his parents annually, or as they should want the same during their lives, excepting the interest of $500, which was to be paid to his sister Catalina, for the education of her son Jacob Ryersdorf, and in case the interest should be insufficient for that purpose the executors were to make advances from the principal of the $500 from time to time as should be necessary, and to pay to him what remained of that sum when he arrived at the age of 21. He also directed the executors to pay the several legacies bequeathed in the will of his father, and to support his father> mo^ler an¿ sister Catherine, according to his agreement; and he directed, that uponthedeath of his parents his estate,after reserving $500, which he directed tobe paid to Jacob Rydersdorf his nephew, after the death of the testator’s parents and when he became of age, should be divided into six equal parts, and one part thereof should be given to the. children of his brother William, one part to the children of his sister Susan, and the other four parts to his sisters Sarah, Catalina, Catherine and Gertrude ; and that if his sister Catherine would not accept the said share in lieu of her maintenance by the agreement* the same should be retained by the executors and applied to her support; and that Negro Tom should be maintained out of the testator’s property during life'. Soon after the death of the son, the defendant Gilbert Vandenburgh, in order to facilitate the trusts contained in the will of the decedent, released to his executprs the property mentioned in the will and agreement of the father, in trust to sell and dispose of the same according to the will of the decedent. The bill alleged that the annual interest arising from the estate of the decedent, invested according to the directions of his will was insufficient, for the support of the father and his sister who remained unmarried, and the negro Tom; and that L. Ryersdorf, as the guardian of Jacob Ryersdorf the nephew, claimed a preference in payment of the annual interest of the $500 for his education, and also of another legacy of $500 in addition thereto; and that the other defendants who were interested in the estate of the decedent denied and resisted such claims ; that G. Heath, one of the defendants, set up a claim against the estate as a creditor, but that nothing was due to him, and that his demand, as they believed, was also barred by lapse of time. The complainants, therefore, prayed among other things, that the rights of the several defendants in the estate of the decedent might be established by the decree of this court, and the necessaiy directions given for carrying the trusts of the will into effect.

      The several defendants who were infants answered by their guardians. L. Ryersdorf and wife put in an answer by which they admitted the principal facts stated in the bill, but denied the correctness of the inventory made by the complainants and of the statements in the bill as to the extent of the property of the decedent. The other defendants suffered the bill to be taken as confessed.

      Teunis Van Vechten, for the complainants.
    S. Stevens, for L. Ryersdorf and wife, and their infant son.

      A. Van Vechten, & J. Roades, for the other defendants except C. Heath.
   The Chancellor.

As the answer of L, Ryersdorf and wife denies the correctness of the inventory made by the complainants, and as there are other allegations in the bill the correctness of which are material to be known before a final distribution of the estate can be made, and as many of the defendants are infants, there must be a reference to a master to take an account of the estate which has come to the hands of the complainants, and of the administration thereof, There is, however, sufficient before me to enable the court to settle the principal questions in controversy between the several defendants interested in the estate of the decedent.

It is supposed by the counsel for J. Ryersdorf, the infant nephew of the decedent, that it is not necessary to look into any transactions between Jacob G. Vandenburgh and his father previous to the will of the son; as the father has released to the executors all his interest in the property devised by his own will, in trust to sell and dispose of the monies arising therefrom according to and in compliance with the directions contained in the will of the son, in the same manner as if he had died seized of the whole real estate ; and to apply the money fully and absolutely to the purposes of that' will. In giving a construction, however, to this release of the father, we must look at the circumstances under which it was given, for the purpose of ascertaining what was the real intention of the parties to such release. By the original agreement the father had not given the property absolutely to his son, but had devised it to him charged with the payment of certain legacies and other testamentary provisions after the death of the mother 5. and had also covenanted not to alter or revoke bis will without the consent of his son. It was still, however, a testamentary disposition of his property, which became lapsed by the death of the son in the lifetime of the testator. But as the agreement between the parties had been carried into effect in good faith by the son, so far as he was capable of performing it in his lifetime, and as provision had been made by him in his own will for carrying into effect not only the agreement with his father but also every provision contained in the will of the latter, the father very properly considered that it would be just and equitable to give to the several objects of the son’s bounty the full benefit of the original testamentary disposition of the father’s estate, in the same manner as if the devises and bequests in his favor had not become lapsed by death; subject, of course, to the charge of performing so much of the original agreement •with the father as provided for the support of the father and mother and unmarried sister; and charged with the payment of the several legacies to those who were the other-objects of the father’s bounty, six years after the death of the latter. This, therefore, is the true construction to be given to the release to the executors. And the property-in the hands of such executors, except so much thereof as was necessary for the support and maintenance of the father and the unmarried sister, must be disposed of in the same manner as if the son had survived his father and had made his own will after the property had become vested in him under the original will and agreement of the father; or rather, in the same manner as if the father, at the date of the original agreement, had conveyed to him all the property not specifically bequeathed, charged in the first place with the support of the father, mother and unmarried sister, and then .charged with the payment of the several legacies mentioned in the will of the father. I am satisfied no other construction can be given to these complicated transactions without doing violence to the intentions of the parties thereto.

The weaver’s loom, with the fixtures and improvements, and the wearing apparel of the father and his household furniture, which were specifically bequeathed by his original will, still belonged to him, and formed no part of the personal estate of the son; and if he had not altered his will in this respect, or otherwise disposed of the loom and furniture in his lifetime, these specific bequests did, upon his death, vest in those for whom they were originally intended by the will, so far as they had not become lapsed by the death of the legatees in his lifetime. They are therefore to be laid entirely out of the question in taking the account of the estate of J. G. Vandenburgh which has come to the hands of his executors.

The agreement with the father, for the support of himself and wife, and his unmarried daughter Catherine during her celibacy, constituted an unliquidated or unascertained indebtedness of the decedent which he owed at the time of his death; although by the terms of the agreement it must necessarily be ascertained afterwards. And as the will of the decedent directed all his just debts to be paid out of his personal estate, or out of the proceeds of the real estate if the personal fund proved insufficient, the agreement for the .support of the father and unmarried sister was not discharged by the release of the father to the executors; which release was perfectly consistent with this claim against the estate of the decedent, under the trust for the payment of debts as contained in the will of the latter. But as the will of the decedent has made a provision in favor of the unmarried sister for her support after the death of her father, in lieu of the provision contained in the agreement, she must elect, before the master, between the agreement as to her support after the death of her father and this residuary bequest to her in the will of the decedent. If she elects to receive her support subsequent to the death of her father, as a debt which is entitled to priority of payment under the agreement, then her share of the residuary fund, if any, is to go to the other residuary legatees. And the magter; jn case> must, ascertain and set apart a sufficient fund for her support for life, if she shall remain so long unmarried. But if she shall elect to receive what she may be entitled to under the residuary clause of her brother’s will, then the master is to allow for her support up to the time of her father’s death only, and she must refund to the executors what she has since received. The decree must also declare that the provision for the support of the parents and unmarried sister was a debt due from the estate of the decedent, and was entitled to a preference in payment out of any funds or property which belonged to him at the time of his death, or which his executors have since acquired under the release from the father.

The legatees named in his will and codicils, were next entitled to their specific legacies of particular articles of the decedent’s personal property, to wit, the two mares and colts, and his wearing apparel. If the other real and personal property which belonged to the decedent at the time of his death was more than sufficient for the support of his parents and unmarried sister, and the payment of other-debts and funeral expenses, and the erection of grave stones, as provided for in the will, the legacies for the support of negro Tom, and of $500 and interest to Jacob Ryersdorf for his education, must next be provided for out of the proceeds of that part of the estate; and the master must set apart a sufficient fund for the support of negro Tom, and for the payment of the $500 and the interest now due thereon. And if that part of the decedent’s property is not sufficient for both legacies they must abate rateably ; or the payment of the residue of both out of the estate of the decedent’s father, which was released by him-to the executors, must be postponed to the payment of the several legacies which by the will of the father were charged upon the estate devised to his son. As the legacy of $500 for the education of Jacob Ryersdorf, and the provision for the support of negro Tom are both general in their natures, and are payable out of the same fund, without any indication in the will of the decedent that either should have a preference over the other, they must of course, in case of a deficiency of assets, abate rateably. (See Ward’s Law of Leg. 371; 2 Will. Law of Ex’rs, 840.) But it appears to be altogether unreasonable that the intention of the testator to have suitable head stones erected at the graves of his parents and of his deceased brother and sisters should be defeated by an abatement in favor of general legatees, upon a deficiency of assets. And I find a precedent for giving a preference to such a testamentary disposition of the decedent’s property, in the case of Masters v. Masters; in which case Sir Joseph Jekyl decreed a provision for the erection of a monument to the memory of the mother of the testatrix to be paid in full, notwithstanding there was a deficiency of assets to pay all the general legacies. (See 1 Peer Wins. Rep. 423, 6th Lond. ed. note 1; Ward’s Law of Leg. 375.) I shall therefore direct the master to make a suitable allowance for the erection of these head stones, out of the decedent’s own estate, in preference to any general legacies. The erection of a suitable head stone at the decedent’s own grave may properly be considered as a part of his funeral expenses, in a case where the rights of creditors cannot be defeated thereby.

The payment of the general legacies to the four sisters and to the children of a deceased sister of the decedent, which were charged upon the estate devised to him by the will of his father, are entitled to a preference in payment, out of the proceeds of the estate which was released to the executors by the father, next after the provisions for the support of his parents and the unmarried sister, before any of the legacies and bequests which are contained in the will of the decedent only, to which his legatees would not have been entitled, under the will or agreement of the father, if the decedent had died intestate after his father’s will had taken effect by death. In other words, the executors took the property released to them by the father, charged not only with the support of the decedent’s parents and unmarried sister as a specific lien thereon as for a debt, if the other estate of the decedent was not sufficient for the payment of that debt, but they took it also charged with the payment of the legacies, six years after the death of the father, according to the terms of his will, as I have before stated. By the will of the decedent, taken by itself, these legacies which are directed to be paid to his father’s legatees, would as general legacies be liable to abate rateably with the legacy for the support of negro Tom and for the education of Jacob Ryersdorf, if all the legacies in respect to the decedent were mere gratuities or bounties. But as he was to take the property, devised to him by his father, charged with the payment of these first mentioned legacies, there was, so far as related to that fund, a valuable consideration for this testamentary gift of the decedent. Those legatees, therefore, take them legacies as purchasers ; and they are only liable to abatement as between themselves. (See Heath v. Bendy, 1 Russ. Rep. 543; Davenhill v. Fletcher, 1 Blunt's Amb. 245, note 2; 2 Will. Law of Ex’rs, 839.) The sum of $500, out of the proceeds of the property released to the executors by the father of the decedent, must therefore be set apart and securely invested for the payment of these legacies at the expiration of six years after his death ; and the interest or income thereof, in the meantime, must be disposed of as a part of the funds of the estate, for the payment of debts and other legacies not before provided for.

As the support of the parents and unmarried sister and of negro Tom, exceeded the income of the estate, exclusive of the $500 and interest for the education of J. Ryersdorf, there was no interest or income to be paid over to the decedent’s parents, for life, beyond the amount of the provision for their support. The next question which arises, therefore, is, whether the nephew, Jacob Ryersdorf, was entitled to a second legacy of $500, payable out of the residuary estate of the decedent after the death of the father and after the nephew shall be of age. And upon a comparison of the several claims of this will, I am satisfied that the testator intended that his nephew should have two legacies of $500, The legacy for his education was to draw interest from the time of the settlement of the estate, or the investment of the proceeds thereof: that is, from the expiration of one year after the death of the testator, which is the time allowed by law for that purpose. And the principal of that legacy was to be paid when the legatee arrived at the age of twenty-one or sooner, if necessary, even if the testator’s parents should then be living. But the other legacy is made payable out of the residuary estate of the decedent, after the payment of all other legacies and claims thereon except those in favor of the residuary legatees. And by the terms of the will, this last legacy of $500 was not to be paid until after the death of both of the testator’s parents, and when the legatee should have arrived at lawful age. It was a vested legacy, but payable in futuro ;• and which does not carry interest until after the time appointed for its payment. This last legacy of $500 must therefore be paid out of the residuary estate, if any such there shall be ; and if paid before the time appointed for that purpose by the will of the testator, the interest thereon until that time must be discounted. Whatever remains of the estate after that must go to the residuary legatees of the decedent, aceording to his will; subject, however, to the directions herein before given as to the election of Catherine the unmarried sister,'between the one-sixth of the residuary estate and the provision for her support after the death of her father, according to the agreement of the decedent.

As it was proper for the executors to take the opinion of the court in relation to the various and entangled equities of the several defendants, arising out of this very complicated trust, their costs, and the costs of the guardians ad litem of the several infant defendants, must be paid out of the funds in the hands of the executors. And a decree must be entered according to the preceding decision and directions ; which decree must also declare that the defendant Heartt has no claim upon the estate as a creditor. If practicable, the consequential directions to the executors upon the coming in and confirmation of the master’s report should also be contained in this decree ; so as to save to-the estate the unnecessary expense of bringing, the case before the court upon any equities reserved. I understand that Gilbert Vandenburgh, the father of the decedent, has died since the argument of this cause; and as the whole of the subject of this litigation survives to the other defendants, there must be an order suggesting his death and directing the cause to proceed against the other defendants alone. The general decree in the cause will then be entered, leaving out his name in the title, or naming the other' defendants as his survivors.


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    German vs. Machin.
    Where the testator devised a part of his íéal estate to his descendants, charged with the payment of an annuity to his widow, and devised and bequeathed the residue of his estate to tier during her widowhood, with power to sell the same for the payment of debts or for her own use during widowhood; Held, that as there were no debts requiring the sale of the real estate devised to the widow, she was only authorized to sell the reversionary interest therein for her own support in cise the income thereof, and her annuity, should be found insufficient for that purpose.
    To entitle a party to a specific performance of an agreement for the sale of real estate, the contract must be certain in its terms andmutual in its character.
    The rule of the court of chancery that parol contracts for the sale of real estate are taken out of the statute of frauds by a part performance of thé parol agreement, ought not to be extended to new cases which do not come clearly within the equitable principles of the previous decisions on that subject.
    Where a bill in chancery is filed for the partition of lands of which the complainant is a tenant in common of the legal title, the defendant may set up in his answer, as a defence to the suit, an equitable title in himself to the whole premises.
    But where the defendant in a partition suit, in addition to the defence of the suit and a dismissal of the complainant’s bill for partition, wishes for affirmative relief on his part, by a decree for a transfer to him of the legal title to that part of the premises which is vested in the complainant, he must file a cross bill, and must also set up the same matter in his answer as a defence to the original bill of the complainant.
    The provisions of the revised statutes do not authorize a submission to arbitrators of a claim in fee to real estate, under an alleged agreement by parol to sell and convey such estate,

      1837. January 23.
    The possession of one tenant in common is prima facie the possession of the other. And if the defendant in a partition suit wishes to avail himself of the defence that the premises were held adversely to the complainant ai the time of the filing of the bill for partition, the answer must contain a distinct allegation of the fact.
    Where exceptions to an answer for impertinence were unnecessarily prolix in setting out the matter excepted to at length in the exceptions, the chancellor refused to allow the complainant her costs of the reference, although she succeeded as to all the exceptions referred.
    This case came before the court upon exceptions to a master’s report, upon exceptions to the defendant’s answer for impertinence. The bill was filed to obtain partition of lands in which the legal estate was in the parties in equal proportions, as tenants in common of a reversion in fee after the death of their mother, who died a short time previous to the filing of the bill. Most of the exceptions depended upon the validity of the defence set up in the answer of the defendant, in which he claimed the equitable title to the whole premises under a parol agreement with his mother in her lifetime, and in pursuance, as he alleged, of a power contained in the will of his father, under whom both parties derived their legal title to the premises. The master decided that a defendant in a partition suit in this court, who admitted the legal title to be in the parties as tenants in common as stated in the bill, could not in his answer set up an equitable title to the whole premises as a defence to the suit; but that he must resort to a cross bill. He therefore allowed all of the exceptions to the answer, and the defendant took three exceptions to the report, embracing in three separate classes the whole of the exceptions allowed by the master,

      J. Rhoades, for the complainant.

      M. T. Reynolds, for the defendant.
   The Chancellor.

The first exception for impertinence covers a part of the answer which sets out a parol agreement between the parties to submit the controversy betxveen them in relation to the lands in question to an arbitrator for his decision thereon. I do not understand this submission as stated in the answer to be a submission to the" arbitrator to make a partition of the premises according to their legal rights; but a submission of the claim of the defendant to the whole premises under the alleged agreement with their mother, which appears to be the whole subject of controversy between these parties. The submission of such a controversy, therefore, was one not allowed by the provisions of the revised statutes, as it was a submission of a claim of the defendant to the whole of the premises in fee; and it would not have been binding upon either party even if it had been in writing. The defendant’s counsel supposes that the statement of this submission, and of the revocation of it, is material, on the ground that it might have an influence upon the court in deciding the question as to the general costs in the cause. If I am right, however, in supposing this was a subject which could not be legally submitted to an arbitrator by parol, a refusal to proceed on such a submission would furnish no reasonable "ground for giving or withholding costs in a case where the costs rested wholly in discretion. This, however, is a suit for partition founded upon a legal title, and if the complainant succeeds in her claim to the whole of the undivided moiety of the premises, the costs must be apportioned between the parties according to their respective interests in the premises, except such costs as may be occasioned by the defendant’s unfounded claim to an equitable title to the whole land. This exception to the answer was therefore well taken, and the first exception to the master’s report must be overruled.

The master was wrong in supposing that a defendant in a partition suit in this court could not set up in his answer, as a defence to the suit, the fact that he was in equity entitled to the whole premises of which partition was sought by the bill. The defendant must unquestionably proceed by cross bill, if, in addition to the denial of a decree for partition and a dismissal of the bill, he seeks full and affirmstive relief on his part, by a decree, for a transfer to him of the legal title to the whole premises ; or if a discovery is necessary to establish his equitable defence. (Mitf. on Pl 3d Am. ed. 81.) Even if a cross bill was necessary to enable the defendant to have the benefit of an equitable defence, it does not follow that this part of the answer is impertinent on that ground. It could not appear, upon the reference of these exceptions, that the defendant had not filed, or might not hereafter file, such a cross bill in aid of his defence. And where the new facts stated in the cross bill constitute the grounds for an equitable defence to the original suit, as well as for further and affirmative relief against the defendants in the cross bill, it is proper to state such facts in the answer to the original bill, if the same are known to the defendant at the time of .putting in such answer, It becomes necessary, therefore, in this case, that I should examine the question whether the facts referred to in the second class of exceptions as impertinent would, if established by proof or admitted to be true, constitute an equitable defence to the complainant’s claim for partition.

The answer sets out the will of T. Machin, the father of these parties, under whom they both claim ; by which it appears that the testator, after devising a' part of his real estate to his children and grand children charged with the payment of certain annual sums to his wife, gave and bequeathed all the remainder of his real and personal estate, including the premises in question, to his wife during her widowhood, with power to sell the whole or any part thereof for the discharge of lawful demands against the estate, or for her own use so long as she remained his widow; that the wife of the testator afterwards died a widow, at the advanced age of seventy-two, having lived about seventeen years with the defendant and been supported by him; and that for several years before her death her expenses had been about two hundred dollars a year. The defendant also sets up a parol agreement or understanding between him and his mother, made several years previous to her death, and while she was so living with him, by which he says it was understood and agreed that he should have the premises in question in part compensation for her support and maintenance; in pursuance of which agreement and understanding he took and retained the possession of the premises until her death, &c. But nothing is said in the answer as to the amount of the real and personal estate to which the widow was entitled under the will, or whether the interest and income thereof was or was not sufficient, in addition to the annuities charged upon the other real estate, to have supported her for life, without a sale of the reversion in these premises after the death or re-marriage of his mother; even if there had been an express agreement in writing to convey the reversion under the power of sale contained in the will, so as to take the case out of the statute of frauds.

Another valid objection to the defence set up by the answer is that there is no price stated at which it was agreed the defendant should have the premises; neither is it alleged that he agreed to maintain his mother for life or for any other particular period, in consideration that she would or did agree to convey the whole premises to him, in fee, under the power of sale contained in the will. The fair inference therefore is, from the defendant’s own statement of the case in his answer, that his mother only intended he should have the property during the continuance of her life estate therein, as a compensation, in part, for her support and maintenance while she continued to live in his family; and that there never was any agreement to sell and convey to him, his own and his sister’s reversionary interests in the premises after her mother’s death, even if the power contained in the will authorized such a sale of the reversion, which is at least a matter of doubt. To entitle a party to a specific performance, the agreement which is sought to be thus enforced must not only be certain in its terms, but there must be mutuality in its character; both of which requisites appear to be wanting here. (See Colson v. Thompson, 2 Wheat. Rep. 336. Reynolds v. Waring, Young’s Rep. 346. Newnan v. Carroll, 3 Yerg. Rep. 18. Boucher v. Vanbuskirk, 2 A. K. Marsh. Rep. 346.) As the widow was entitled to the premises for life, or during her widowhood, the delivery of the possession to the defendant, and his continuance in possession till her death, in 1835, may . very reasonably be accounted for, without supposing that there was any agreement for the sale of the reversion. And it is not alleged in the answer that any beneficial and lasting improvements were made upon the premises which a tenant for life would not be likely to make on property thus situated. The mere possession of the defendant during the continuance of his mother’s life estate was not therefore . such a part performance of an agreement to sell the reversion, under the power contained in the will, as would take the case out of the statute of frauds if a parol agreement for such a sale was in fact made. The beneficial provisions of the statute of frauds have been sufficiently broken in upon already; and the doctrine of part performance should not be extended to new cases which do not come clearly within the equitable principles of previous decisions. The allegations in this part of the defendant’s answer furnish no legal or equitable defence to the complainant’s suit for partition of the premises, and are therefore irrelevant and impertinent. The possession of one tenant in common is the possession of the other, unless there has been an ouster. If the defendant wishes to avail himself of such a defence, the answer should contain a distinct averment of the fact, as an adverse holding will not be presumed from the mere circumstance of the defendant’s being in possession. The defendant having entered with the assent of the tenant for life, his holding over is not necessarily adverse to his co-tenant in the reversion. Besides the answer admits that the complainant is seized as tenant in common of the premises with him, and that was sufficient in this case. (See Jenkins v. Van Schaick, 3 Paige’s Rep. 242.)

The second exception, however, was bad in form, and should have been disallowed by the master; because it was impossible to allow it as a separate exception, and to have that part of the answer to which it refers stricken out, without an unnecessary mutilation of the answer, by rendering that part which is embraced in the third and fourth exceptions entirely senseless and unmeaning. (Franklin v. Keel er, 4 Paige’s Rep. 382.) And if there had been a separate exception to the master’s report on account of the allowance of the second exception to the answer, that part of the report must have been overruled. The same remark is applicable to the twelfth exception to the answer; the allowance of which as a separate exception might have mutilated the answer in the same manner, by rendering the two next clauses thereof senseless and unmeaning. The matter of the thirteenth exception is impertinent and may be stricken out without mutilating the answer ; and as there is but one exception to that part of the report which allows the twelfth and thirteenth exceptions, that exception, as well as the second exception to the report, must be overruled.

All the exceptions to the answer were in themselves impertinent, or more properly, unnecessarily prolix, in setting out the impertinent matter of the answer at length instead of refering to it by line and page; and thereby these exceptions, which might have been embraced in two or three folios at most, are extended to fifteen or twenty folios. The complainant’s solicitor was also wrong in taking separate and distinct exceptions where the subject matter of each exception depended on the same principle, and might have been embraced in a single exception. And as thirteen distinct exceptions were taken to this answer when three only were necessary, I shall, in accordance with the intimation -contained in the case of Franklin v. Keeler, before referred to, refuse to allow any costs upon the reference of the exceptions.; and the exceptions themselves are not to be taxed at more than three folios. But as the defendant has unnecessarily brought the master’s report before the court for review, and has failed in all his -exceptions to the same, the complainant is entitled to her costs upon the argument of those exceptions here.


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    P. B. & J. B. Manchester vs. Dey.
    1837. March 7.
    Although an answer on oath is waived by the complainant, the defendant, as in other cases, is entitled to the dissolution of an injunction upon a sworn answer denying the whole equity of the bill, unless the allegations in the bill are supported by the affidavit of a credible and disinterested witness, in conformity to the 37th rule.
    Upon an application to dissolve an injunction upon bill and answer, the defendant’s answer is entitled to the same credit as the complainant’s bill. It therefore makes no difference on such an application that the bill is supported by the oaths of several complainants.
    Where a complainant, upon obtaining an injunction to stay proceedings at law after judgment, has given security to pay the debt and costs, instead of carrying the amount of the judgment into court, the defendant is entitled to a dissolution of the injunction upon his answer denying the whole equity of the bill.
    But if the amount of the judgment has been brought into court, and has been taken out by the defendant upon security to refund in case the complainant succeeds in the suit, the injunction will be continued to the hearing, although the equity of the bill is denied in the answer.
    And it seems that the injunction may be continued to the hearing when the amount of the judgment is brought into court, although the defendant neglects to take out the money upon the usual security to refund if it should afterwards appear that he was not entitled to the same.
    This was an appeal from the decision of a vice chancellor, denying the motion of the defendant to dissolve an injunction. The bill was filed to stay the preceedings in a suit at law after judgment, and an answer on oath from the defendant was waived; but there were no affidavits annexed to the bill, verifying the allegations therein, except the usual affidavit of the complainants themselves. The answer fully denied the whole equity of the bill. But the vice chancellor denied the motion to dissolve the injunction, upon the ground that the complainants had given a bond with sureties for the payment of the amount of the judgment, pursuant to the statute, upon the granting of the injunction.

      D. Marvin, for the complainants.

      S. Stevens, for the defendant.
   The Chancellor.

Although the complainant in an injunction bill waives an answer on oath from the defendant, the latter may put in an answer on oath for the purpose of obtaining a dissolution of the injunction. And the injunction will then be dissolved, as in other cases, upon the coming in of an answer denying the whole equity of the bill, unless the allegations in the bill on which the right to the injunction depends are verified by the affidavit of a credible and disinterested witness, according to the provisions of the 87th rule. And whether the bill is sworn to by one or more complainants can make no difference, as the answer of the defendant is entitled to the same credit as the bill of the complainants.

The counsel for the complainants is also wrong in supposing that the giving of a bond, to secure the payment of the amount of the verdict or judgment in the suit at law, entitles a complainant to a continuance of the injunction, after the whole equity of the bill is fully denied by the answer. The object of the statutory provision, requiring the complainant to bring the money into court, or to give security for its payment, before he can have an injunction to stay the proceedings upon a verdict or judgment, was not to enable him to retain his injunction after the equity of the bill was fully denied. It was to protect the rights of the adverse party against an improper use of this important and very useful process, which was frequently resorted to for the mere purpose of delay. The party who has obtained a verdict or judgment at law is prima facie entitled to the money thus recovered. And one object of the statute was to give him the possession of the fund while the right to the same is in litigation in this court, upon his giving security to restore the amount if the party obtaining the injunction finally succeeds in showing that the verdict or judgment was illegal or inequitable. (See 2 R. S. 189, § 142.) But this object of the statute would be entirely defeated if the complainant, by merely giving a bond, instead of paying the money into court, could entitle himself to retain the injunction until the final termination of a protracted litigation, although the whole equity of the bill was fully denied in the answer. Such a result I am sure could never have been in the contemplation of the framers of these statutory provisions ; neither are the provisions themselves susceptible of such a construction. Where the money is paid into court by the complainant, and taken out by the defendant upon giving security to refund, the statute has made provision to secure the former against the collection of the money a second time, by authorizing the court to continue the injunction or to compel a satisfaction of the judgment to be entered of record. (2 R. S. 189, § 143.) And in accordance with the principle of this section of the statute, perhaps the court would be authorized to continue the injunction, where the money was actually brought into court, although the defendant should have neglected or refused to furnish the necessary security and take out the money thus deposited. But where the money is not actually brought into court, the defendant is entitled as of course to a dissolution of the injunction, upon the coming in of a full and perfect answer denying the whole equity of the bill upon which such injunction was obtained. The delivering up the bond for prosecution, however, is in the discretion of the court, and it may be retained until the final hearing of the cause, although the injunction is dissolved upon the coming in of the answer.

In this case the defendant was entitled to a dissolution of the injunction, according to the settled practice of the court. The decision of the vice chancellor must, therefore, be reversed, with costs.