text:
    In the matter of Morrell and others, infants.
    Upon a petition for the sale of infants’ estates, if several infants are included iis the same application, or if several parcels of land are sold at different times, the solicitor for the petitioners is entitled to an allowance for the extra expense, notwithstanding the limitation of costs by the 161st rule to $25.
    The master to whom a petition for the sale of an infant’s estate is referred, should briefly report the result of his inquiries and a statement of the facts, either by a reference to the petition or otherwise; and he should not take down and return to the court the testimony at length.
    The master should not rely upon the petition as the evidence of the facts he . is directed to ascertain and certify to the court; but he should examine witnesses as to those facts.
    January 1.
    ln this case several questions were, submitted to the chancellor, by one of the taxing masters, as to the costs of proceedings for the sale of real estate of infants by a special guardian. Several infants were interested in the property; and, according to-the settled practice of the court, a separate bond to each infant was executed by the guardian and his sureties. The premises which, by the order of the court, the guardian was authorized to sell, consisted of several distinct lots or parcels; but only a part thereof had been sold, and the value of the part thus sold was less than $ 1000. The questions as to the taxation of the costs arose under the 161st rule of the court; which limits the costs of the proceedings, in certain cases, to twenty-five dollars.
   The Chancellor.

The act of the 9th of April, 1814, which first authorized the sale of infants’ estates under an order of this court, limited the costs of the proceedings to $25. This was a salutary provision, and was intended to prevent all unnecessary or useless prolixity in the petition, orders, reports and other proceedings, and to protect the rights of infants in a case where the taxation of costs must necessarily he ex parte. The object of this court in the adoption of the lGlst rule, was to continue this statutory restriction in a certain class of cases; not only to induce the officers of the court to avoid all unnecessary .expense in proceedings of this kind, but also to prevent improper applications for the sale of the estates of infants, where the value of the property, and the benefits to be derived by the infants from such sale, would be disproportioned to the ordinary taxable costs of such proceedings. The amount of costs limited by the former statute, and by this rule, was supposed to be sufficient to cover the actual and necessary expense of the proceedings in the case of a single infant, where there was but one report of sale to be made; provided the petition, orders, reports, &c. were drawn with all practicable brevity. But it was not intended by this limitation to prevent the applicant, or his solicitor, from obtaining a compensation for the extra expense of separate bonds to the respective infants where more than one was interested in the premises, or for the additional report and proceedings on the sale of a second parcel of the estate of an infant, under the same order, where the whole property which the guardian was authorized to sell could not be sold previous to the making of his first report of sale. In such cases the taxing officer should allow the extra expense of drawing and filing the additional bonds of the guardian and his sureties, or of the report and proceedings on the second sale, in addition to the $25 limited by the rule, if the whole taxable costs exceed that sum. The limitation prescribed by this rule does not extend to the case of a sale of a part of the property only, although the value of that part is less than $1000; provided the infant’s interest in the whole property which the guardian is authorized to sell, as ascertained by the report of the master on which the order of sale was founded, exceeds that amount. As the names of the sureties, and the fact of their sufficiency, as well as the amount of the security to be given, appear in the original certificate of the roaster on which the order for the appointment of the spécial guardian is founded, and are also specified in such order, it. is not necessary to have the bond approved by'a master. But it is the duty of the register or clerk with whom the order is entered, to see that the bond, or other security is executed by the proper persons, and in the form prescribed by the order of the court, before he gives the certificate required by the 160th mle. Neither is it necessary or proper for the master, who certifies to the sufficiency of the sureties, &c. on the original petition, or who makes a report upon the subsequent reference, to take down and return to the court, in the shape of affidavits or otherwise, all the testimony had before him. It is his duty to-ascertain the necessary facts which are required to be certified or reported, and this may be done by a viva voce examination of the sureties, witness, and parties on oath; and he should then certify or report to the court the result of his inquiries, as briefly as possible.' If all the material facts as to the age and residence of the infants, the situation and value of their real and personal estate, the situation, value and income of the estate proposed to be sold, the fact that they have no. general guardian if the petition is presented by the infants in person or by a next friend, and the particular reasons which render a sale of the premises necessary and proper, are truly stated in "the petition, as required by the 158th rule, the report of the master, upon the reference, may be very short, in relation to those facts; stating that from the examination of the witnesses before him, he has ascertained that all the matters set forth in the petition are true. To this the master should add a brief statement of the result of his inquiries as to all the other matters which he is required by the 160th rule to ascertain and report to the court. The whole of this report, if the petition and report are both properly drawn, can seldom exceed four or five folios ; as reference should always be made to the petition, where it can be done, for the description of the property and all other matters which áre truly stated therein. But the master should not rely upon the allegations in the petition as the evidence of the'facts which he is required to ascertain and certify to the court. (In Re Lansing, 3 Paige's Rep. 265.)

The costs of the proceedings in this case must be taxed on these principles.

         See 3 Moulton’s Practice, 629, 667,


source: Caselaw Access Project

author: The Chancellor.

license: Public Domain

text:
    Jenkins and others vs. Freyer and others.
    The guardian ad litem, of an infant defendant should not consent to a general reference to a master to take an account against the infant, until he has ascertained that the rights of the infant can be protected on such reference.
    The husband can collect demands due to his deceased wife, only in the character of her administrator; and by the revised statutes, he is required ta give the like bond and security as other administrators.
    The executor or administrator only can represent the personalty, and he alone can give a valid discharge, upon payment of the demand due the testator or intestate.
    A person who is the next of kin'cannot sustain a suit in equity, for the recovery of personal property belonging to the decedent, without taking out letters of administration upon the estate, although he is exclusively entitled to the beneficial interest therein.
    Upon a bill for an account and distribution of an estate, if one of the distributees dies pending the suit, it must be revived against his personal representatives, and not against his next of kin.
    The children of a deceased legatee, although exclusively entitled to the legacy, cannot recover the same from the owner of the real estate upon which it is charged, without administering upon the estate of the legatee.
    Upon the hearing of a cause, if it appears that all the proper parties are not before the court, the complainant may be permitted to file a supplemental bill to bring in the necessary parties.
    When lands charged with the payment of legacies have been sold by the devisee to different purchasers, such lands will be charged in the inverse order of their alienation.
    Where a legacy is given to a class of individuals, in general terms, as to the children of A., and no period is fixed for the payment of the legacy, it will be considered as due at the death of the testator; and only the children of A. who were either born or begotten previous to that time, are entitled to a share in the legacy.
    But a child in ventre sa mere, at the death of the testator, is considered as in esse ; and if it should afterwards be born alive, it would be equally entitled with those children who were born in the lifetime of the testator.
    Where, by the will, there is a postponement of the division of a legacy given to a class of inividuals, until a period subsequent to the testator’s deaths every person who answers the description so as to come within that class, at the time fixed by the testator for the division, will be entitled to a share, although not in esse at his death; unless there is something in the will to show that the testator intended to limit the legacy to such only of the class as would answer the description at the time of his death.
    Janury, 15.
    Isaac Freyer, who died in 1802, by his will devised to jjg Son Isaac I. lots number 1 and 7 in the city of Albany, charged with the payment of a legacy of £100. He also devised to his.son William, lots No. 3 and 4, charged with £30; to his son John, lot No. 8, charged with £20; to his son Peter, lot No. 2, charged with £65; and to his son Henry, lots No. 6 and 9, charged with £25. The testator then gave £500 in legacies to certain of his grandchildren, a portion thereof to be paid by the said devisees, as above mentioned, and the residue to be paid by his executors, out of his personal estate : to wit, £300 to the children of his deceased daughter Elizabeth, and £200 to the children of his son Thomas, who was then living. After making some other specific devises and bequests to his daughter Ann and his son Thomas, the testator gave the residue of his etate to his sons Isaac I., William, John, Peter, and Henry; and he appointed the three first executors of his will. At the death of the testator his deceased daughter Elizabeth had three children living: to wit, Polly, the wife of R. Van Kleek, ’Elizabeth, the wife of Jacob Lansing, and Ann, the wife of C. Pruyn. . Thomas Freyer had then but three children, Joseph N., Isaac, and Elizabeth, but he subsequently had six others, and is still living. Soon after the death of the testator, Peter Freyer one of the devisees, conveyed his lot to his brother John, and subsequently died intestate, without issue and without property. Henry Freyer, in July 1810, conveyed lot No. 6 to B. Armitage, from whom, by divers mesne conveyances, it came to Willard Walk-er. Henry also conveyed to his brother John part of lot No. 9, with warranty. William conveyed lot No. 4, to the corporation of Albany, which was converted into a street. John Freyer died intestate, in December, 1816, leaving 9 children; two of whom, in conjunction with their husbands, were the complainants in this suit. William Freyer died in December, 1816, eight days after the death of his brother John, intestate and without issue, leaving his three brothers, Isaac I., Henry and Thomas, his sister Ann Armitage, his three nieces f the children of his sister. Elizabeth,) and the nine children of his brother John, his heirs at law, and entitled to distributive shares of his personal estate. Three of the children of John Freyer, Jonathan, Catharine and William, afterwards died intestate and without issue. Soon after the death of William Frey-er, the elder, his brother Thomas assigned and conveyed all his interest in the estate to his nine children. In 1820, Joseph N. Freyer, one of those children, and one of the legatees of his grandfather, died intestate, leaving his son Joseph his sole heir. Elizabeth Lansing, fyie of the heirs of her uncle William, and a legatee of her grandfather, died in 1825, leaving her husband, and her three children, Robert, Jacob, and William F., her surviving. After the death of William Freyer, in 1816, his brothers, Isaac J. and Henry, and his brother in law, B. Armitage, administered on his estate»
    The complainants filed their bill in this cause for an account and distribution of the estate of William Freyer, among those who were justly entitled to the same; for an account of the administration of the estate of Isaac Freyer, deceased; for the payment of the balance of the legacies which might be found due, and which were payable out of his personal estate; and to ascertain what part, if any, of the legacies charged upon the real estate remained due, and for a contribution and payment of the same agreeable to equity. After Isaac I. Freyer, the surviving executor of the testator ¡Isaac Freyer, had put in his ansxver, the suit abated by his death; and it was afterwards revived, by a bill of revivor and supplement, against his executrix, and his devisees and residuary legatees. The solicitors for the several parties agreed upon a decree, referring it to a master to take the several accounts between the parties; but as many of the defendants were infants, it was submitted to the court to make such decretal order in the premises as should be deemed proper upon the facts stated in the pleadings.

      J. King, for the complainants.

      Jl. Tabor, for the defendant Walker.

      L. H. Palmer, guardian for John Freyer and others.

      ,fl. Van Vechten, for the executrix of Isaac I. Freyer.

      J. T. JB. Van Vechten, for P. Smith and others, infants.
   The Chancellor.

The guardian ad litem of infant defendants should not consent to a general reference to a master to take an account against the infants, until he has ascertained, from an examination of the pleadings at .least, that their rights can be protected on such reference, and that his wards will not be subjected to the expense of a double litigation. One object of this suit is to settle the claims of the original legatees, or their representatives, to legacies, parts of which legacies were charged upon real estate in which some of the infant defendants are now interested; and yet the necessary parties are not before the court to enable the chancellor to make a; final decree, upon the coming in of the master’s report, so as to clear their estate from these encumbrances. The share of the legacy which belonged to each of the grandchildren of the testator, Isaac Freyer, is a specific lien upon the several lots on which such legacies were charged, in favor of such legatees or their personal representatives. And that lien cannot be divested, except by an actual payment or release, or by a decree in a suit in which each legatee, or his or her personal representative is .a party. In this case the children of Mrs. Lansing, one of the legatees, may be proper parties in relation to the real estate of her uncle William, if the whole of her interest therein was not divested by the sale in the partition suit. But the legacy to . Mrs. Lansing, as well as her distributive share of the personal estate of the deceased uncle, belonged, to her husband, as he survived.her, and not to her children; and he is not a party to this suit. So that the claim upon the real estate for this legacy, and upon the administrators of William for his distributive share, cannot be disposed of in this suit, even if it could be re-, covered by the husband without administering upon the estate of h\s deceased wife. The husband however is only authorized to collect demands which belonged to his deceased wife, in the character of her administrator. And by the revised statutes, he is required, when he administers on her estate, to give a bond and security, the same as other persons.' R. S. 75 § 29.) Joseph N. Freyer was also one of the original legatees of Isaac Freyer; and he was likewise entitled to a distributive share of the estate of his uncle William, under the conveyance or assignment from his father, Thomas Freyer." His personal representative, and not his heir at law, is the proper party to claim his share of the personal estate of his uncle and of the legacy of his grandfather. And unless such personal representative is before the court, no decree can be made in this cause which will discharge the several lots from the encumbrance of his part of the legacies charged thereon. (See Hallett v. Hallett, 2 Paige’s Rep. 16.) Although the child of Joseph N. Freyer, who is probably entitled to his estate under the statute of distributions, is before the court, that is not sufficient. The creditors of the father may be entitled to the whole of the estate; and the executor or administrator alone can represent the personalty, so as to give a valid discharge. In Bradford v. Felder, (2 M'Cord's Ch. Rep. 169,) it was held that the next of kin could not sustain a suit in equity, for the recovery of personal property belonging to the decedent, ■without administering, although they were exclusively entitled to the beneficial interest therein. And in the case of Kellar's executors v. Beelor, (5 Monroe’s Rep. 574,) where, upon a bill for an account and distribution of the estate of the testator, one of the distributees died pending the suit, it was held that the suit was improperly revived against his next of kin; and that his personal representative was the proper party to be made defendant in the bill of revivor. In Wilkinson v. Perrin, 7 Monrods Rep. 217,) it was also held that the personal representative of a distributee who died before distribution, must be made a party; and that it was not sufficient that the children were before the court. Also in the case of Champenois v. Champenois, decided by this court in December, 1828, but not reported, it was held that the children of a legatee, whose legacy was charged upon the real estate of the defendant, were not entitled to recover the legacy without administering upon the estate of their father although it was admitted that there were no debts due from the deceased legatee, and that the taking out of letters of administration was a mere formal proceeding. As none of these complainants have administered upon the estate of John Freyer, they are not entitled to call for an account, against the executrix and the infant devisees of Isaac I. Freyer of the administration of the personal estate of Isaac Freyer, the original testator. And they cannot have an account of the several legacies charged upon the real estate, with a view to an equitable contribution for the payment thereof, without bringing the personal representatives of Mrs. Lansing, and of Joseph N. Freyer, before the court. If the complainants wish to proceed for an account and distribution of the personal estate of William Frey-er alone, they may have a reference for that purpose, as the administrators make no objection of a want of parties. And the estate can be distributed, except such parts thereof as belong to the personal representatives who are not before the court; or such representatives may be permitted to come in and claim their distributive shares of the estate before the master. Among other distributees who are not now properly represented here, are the personal representatives of the three children of John Freyer, who have died since they became entitled to a share of their uncle William’s personal estate. Their shares cannot be distributed among their next of. kin until a personal representative is appointed, if the objection is insisted upon by the administrators of William.

If the complainants prefer to have the proper parties brought before the court, so as to enable them to have an account of all the legacies which are still a charge upon the real estate, they are to be at liberty to file a supplemental bill, to bring in the necessary parties for that purpose. Or they may have a reference to take such an account, upon procuring the written agreement or consent of the personal representatives of the deceased legatees to come in before the master and litigate their claims, and to be bound by such decree as may be made in this cause, in the same manner as if they were originally made parties in the suit. If such an arrangement should be made, the master must charge the legacies which were a lien upon the estate, of each devisee, upon, the lands chargeable therewith, according to the principles adopted by this court in the case of Clowes v. Dickenson, (5 John. Ch. Rep. 235,) and in James v. Hubbard, (1 Paige’s Rep. 228;) that is, the premises last sold, or which remain unsold in the hands of the devisee or his heirs, is to be first charged, and so on in the inverse order of alienation. If the whole amount of the legacy charged upon the lands devised to Isaac I. Freyer was paid over to William for the use of the legatees, as stated in the answer of Isaac I., the real and personal estate of William, or the proceeds thereof in the hands of his administrators or distributees, must bear the charge, if there is sufficient for that purpose. But as such payment to him did not create a specific lien upon his estate, the amount cannot be a charge upon the lands of which he died seized, and which have gone into the hands of bona fide purchasers ; and the estate of Isaac I. will therefore still remain liable for any deficiency.

The only question that arises upon the construction of the will of Isaac Freyer is, as to which of the children of Thomas Freyer are entitled to come in as legatees of their grandfather, and to share in the legacy of £200 given by the testator to the children of his son Thomas. Where a legacy is given to a class of individuals in general terms, as “ to the children of A.,” and no period is fixed for the distribution of the legacy, it is to be considered as due at the death of the testator ; and none but children who were born or begotten previous to that time are entitled to share in the legacy. (Crone v. Odell, 1 Ball & Beat. 450. Davidson v. Dallas, 14 Ves. 576.) But a child in ventre sa mere at the death of the testator is considered as in esse, if it is afterwards born alive; and such child is equally entitled with those who were bom in the lifetime of the testator. (Doe v. Clark, 2 Hen. Black. Rep. 399. Trower v. Butts, 1 Sim. & Stu. Rep. 181. Rawlins v. Rawlins, 3 Cox’s Cas. 425.) Where, by the will of the testator, there is a postponement of the division of a legacy given to a class of individuals, until a period subsequent to his death, every one who answers the description, so as to come within that class at the time which- is fixed by the testator for the division, will be entitled to a share, although not in esse at the death of the testator; unless there is something in the will to show that the testator intended to limit his bounty to such of the class as would answer the description when the will _ took effect by his death. (Gilmore v. Severn, 1 Bro. C. C. 582.) In this case, however, I am satisfied by the terms of this will, that the testator intended a virtual division of this legacy, so as to give to each of the children of Thomas who should be in esse at the death of the testator, the interest on their respective shares of the legacy for their present support; and that the principal of the share of each should be then invested as. his or her separate property. The children of Thomas, who‘were neither born or begotton at the death of the testator, are therefore to be excluded from any share of the £200 legacy; and they are only entitled to their distributive shares of the estate of their uncle William, under the assignment from their father.

If the complainants elect to proceed for an account and distribution of the estate of William Freyer only, so much of the bill as seeks for an account, contribution and payment of the -legacies charged upon the respective lots of the several devisees," except so far as is necessary to settle the estate of William, must be dismissed; but without prejudice to the future rights of •any of the parties. The bill is also to be dismissed, without prejudice, so far as it seeks an account and distribution of the personal estate of Isaac Freyer; unless the complainants shall take out' administration on the estate of John Freyer, and file then-supplemental bill-in behalf of themselves and all others, interested in that estate, who may elect to come in under the decree. Even that, however, will not dispense with, the necessity of making the legatees whose legacies are charged on the real estate, or their personal representatives, parties ; as their liens would not be discharged by a mere neglect te some in before the master.

         See also Coons v. Nall's heirs, 4 Littell's Reports, 264,


text:
    Van Ness vs. Cantine & Radcliff.
    Where the complainant obtains an order for leave to amend his bill upon payment of the costs of the defendant’s answer and the costs of opposing the application, he is not compelled to pay the costs of the answer if he elects to proceed without making the proposed amendment; but he must in that case pay the costs of opposing the application to amend.
    No execution can be issued out of the court of chancery, against the body or the property of a party, except upon a decree, or upon a positive order of the court.
    A party who is equitably entitled to costs, must apply to the court and obtain a positive order for the payment of such costs before he can take out an execution for the same.
    January 15,
    The complainant in this case made an application to the court for leave to amend her bill; but the application was opposed on the part of the defendants, J. & P. W. Radcliff upon the ground that an entirely new answer would be requisite, if the proposed amendents should be made. The chancellor, how'ever, made an order that the complainant be permitted to amend her bill, according to the prayer of her petition, upon payment to the adverse party of the costs of their answer previously put in, and the costs of opposing the application. The complainant subsequently applied for a modification of that .part of the order which required the payment of the costs as a condition of the amendment; but the application was denied. The defendants, thereupon, procured the costs of their answer, and the costs of opposing the application to amend, to be taxed; and they insisted upon their right to claim payment of the whole, under the first order, although the complainant declined to amend her bill upon the terms prescribed in that order. The complainant’s solicitor gave a written notice to the defendants that she abandoned the right to amend; and tendered and offered to pay the costs of opposing the application to amend. Which offer was refused. The defendants then caused the costs, as taxed, amounting to $78,49, to be demanded of the complainant; and issued a precept to commit her to prison until that amount, together With the further sum of $8,01, for the expenses of the pttk ceedings subsequent to the taxation, should be paid. The sheriff returned upon this precept that the defendant was not found in his bailiwick. And the defendants subsequently issued an execution against the property of the complainant"; upon which the sheriff was directed to levy the two sums above mentioned, and the further sum of $6, for that and some former executions. The complainant thereupon applied to set aside this execution for irregularity.

      A. II. Dana, for the complainant.

      Jacob Radcliff, for the defendants.
   The Chancellor.

The defendants who sued out this execution were wrong in supposing that the complainant was bound to pay the costs of their answer, in this stage of the cause, if she did not think proper to amend under the permission contained in the order of April, 1832. That was not an absolute order to pay the costs, but was merely a conditional grant of the application to amend. She was permitted to amend, according to the prayer of the petition, on condition that she should pay the costs of the answer already put in by these defendants, as well as the costs of opposing her application. And I cannot see that she has done any positive act which would make it equitable that she should pay the costs of that answer, if she elects to proceed in the suit without amendment. The costs of opposing the application for leave to amend, depend upon a different principle. As the petition would have been dismissed, with costs, if the counsel, on the hearing of that petition, had declined taking a conditional order; if the client afterwards declines a performance of the condition, she must pay the costs which would have been charged upon her, if she had declined it by her counsel in the first instance. But no execution can issue against the body or the property of a party in this court, except upon a decree of the court, or upon some positive order in the nature of a decree. It is therefore necessary for a party who is equitably entitled to such costs, to apply to the court for a positive order for the payment thereof, before he can take out an execution. Upon such an order, the statute has authorized the issuing of a precept to commit the party to prison, if he refuses to pay the amount which is thus ordered to be paid to the adverse party. But as the revised statutes have authorized this court to enforce the performance of a decree only, by an execution against the property of the party as on a common law judgment, it may be doubtful whether a fi. fa. can be issued upon a mere order for the payment of interlocutory costs. Here is an execution directing the sheriff to levy three several sums of money, amounting in all to $92,50, out of the property of the complainant. And yet, there is no order or decree upon the records of this court directing the payment of any part of either of those sums; and nothing which could authorize the issuing such an execution. As the whole of the proceedings on the part of these defendants, after the receipt of the notice of the abandonment of the order to amend "and the tender of the costs of opposing the first application, were irregular and unauthorized, this execution must be set aside with costs, to be paid by the defendants, in whose favor the same was sued out. The defendants are, however, to be permitted to set off against those costs, their costs of opposing the original application to amend. The complainant must also stipulate not to bring an action of trespass.


text:
    Benedict vs. Gilman & Couch.
    Upon a statute foreclosure, if there are judgments which are liens upon the equity of redemption, the purchaser obtains the whole legal and equitable interest in the mortgaged premises, as against the mortgagor and all persons claiming under him, subject to the equitable right of the judgment creditors to redeem.
    The amount which a judgment creditor is bound to pay to redeem mortgaged premises, after a statute foreclosure, is the sum actually due upon the mortgage, and not the sum bid by the purchaser at the sale under the statute.
    Upon the redemption of mortgaged premises by a judgment creditor, after a statute foreclosure, he is not bound to pay the costs of such foreclosure.
    Where the purchaser under a statute foreclosure, makes valuable and permanent improvements upon the premises, under the belief that ,he has a good title, and without notice of the existence of a judgment which is a lien upon the equity of redemption, the judgment creditor applying to redeem must, in addition to the amount due upon the mortgage, pay the enhanced value of the premises arising from such improvements.
    As a general rule, a party who is permitted to redeem mortgaged premises, whether he is plaintiff or defendant in the suit, must pay the costs of the suit, in addition to the amount due on the mortgage.
    A purchaser, under a statute foreclosure, may file a bill to foreclose the equity of redemption of a judgment creditor or subsequent mortgagee; and he is not' bound to make the mortgagor, or any other person whose equity of redemption is already barred, a party to the suit.
    In a suit to foreclose the equity of redemption of a judgment creditor after a statute foreclosure, the court may order a sale of the premises, or may decree a strict foreclosure against the creditor if he neglects to redeem.
    January 15.
    Previous to 1829, B- Reynolds had given two several mortgages upon a lot of land in Plattsburgh, of which land he was the owner in fee. In February, 1829, the defendant Gilman recovered a judgment against Reynolds, in the supreme court. And in May thereafter the defendant Couch recovered a judgment against him in the Clinton common pleas; both of which judgments were liens upon the mortgaged premises at the time of the statute foreclosure hereafter mentioned. J.- Palmer afterwards became the owner of the two mortgages, by as signment, and in April, 1830, he proceeded to foreclose the same, by an advertisement and sale under the statute. Previous to the day of sale, the complainant entered into an agreement with Palmer to become the purchaser of the two mortgages ; but without prejudice to the proceedings, in the name of Palmer, to sell the premises under the statute. It was further stipulated, in the agreement, that if the premises were sold and no one should appear at the sale to bid to the amount due on the mortgages, including the costs of foreclosure, Palmer should bid in the property for the benefit of the ■complainant. The amount due on the mortgages, at the time of the sale in October, 1830, was between eleven and twelve hundred dollars, exclusive of the costs. The premises were sold accordingly, and were bid in by Palmer for the sum of §601, that being the highest sum offered at the sale. Palmer immediately afterwards conveyed all his interest, both in the mortgages and in the mortgaged premises, to the complainant, and received from him the whole amount due on the mortgages, including the costs of the foreclosure. The complainant having ascertained that the foreclosure was not valid as against the judgment creditors, applied to them to release their claim to the equity of redemption; which they declined doing. He also offered to permit them to redeem the premises, upon paying the amount of the mortgages, including the costs of the statute foreclosure. This oiler was also refused; but the defendant Gilman claimed the right to redeem the premises upon the payment of the §601, for which the premises were bid in at the sale, together with the interest thereon. And he tendered that sum to the complainant, and demanded a conveyance of his interest in the premises. The complainant thereupon filed his bill in this cause against the judgment creditors of Reynolds to foreclose their equity of redemption. And he prayed for a decree of strict foreclosure against the defendants, unless they should elect to pay the whole amount of the mortgage, the costs of the statute foreclosure, and the expenses of the permanent improvements made by him on the premises, after deducting therefrom the rents and profits received by him after his purchase. The bill was taken as confessed against the defendant Couch. Gil-man put in an answer admitting the principal facts stated in the bill, but insisting upon his right to redeem upon the payment of the amount bid at the sale, with the interest thereon from that time.

      J. D. Woodward, for the complainant.
    The complainant' succeeds to the rights of the mortgagee in relation to the defendant Gilman, the judgment creditor. To entitle Gilman to redeem, he must pay not merely the amount of the bid at the mortgage sale, but the amount due on the mortgages, together with the costs of foreclosure and the value of the permanent improvements made by the complainant, deducting the rents and profits. Gilman ought not to have put in an answer and compelled the complainant to bring the cause to a hearing upon bill and answer.

      W. Swetland, for the defendant Gilman.
    To entitle Gil-man to redeem, he must only pay the amount of the bid. The agreement between the complainant and Palmer was a fraud upon the mortgagor and his creditors, and was contrary to sound policy; its tendency being to prevent competition at the sale. (3 John. Cas. 32, 33. 8 John. Rep. 444. 6 id. 194. 4 John. Ch. Rep. 254.) Under that agreement, the complainant cannot insist upon Gilman’s paying the amount due on the mortgages. The balance remaining due on the mortgages, after deducting the amount of the bid, is merely a debt against the mortgagor. And an assignee of an equity of redemption is not bound to pay a bond debt against the mortgagor on a bill to redeem. (Coleman v. Winch, 1 P. Wms. 775.)

   The Chancellor.

it was insisted by the defendant’s counsel, on the argument, that the agreement between Palmer and the complainant was calculated and intended to prevent competition at the sale, and was therefore a fraud upon the mortgagor and his creditors. As it is admitted that Reynolds was notoriously insolvent at the time of the foreclosure, and that the whole value of the premises did not exceed the mortgage debts and tlie costs of foreclosure, I cannot perceive how any one could have been injxired by that arrangement. It is sufficient, however, to say that such an agreement is not necessarily fraudulent, and that thei'e is no allegation in the answer, on which to found a suggestion that there was any intentional fraud or unfairness in that transaction. Even if there was an actual fraud intended, as Gilman’s rights were precisely the same after as before the statute foreclosure, he has no just ground of complaint as to the manner in which the sale took place.

The defendant Gilman is also under a mistake in supposing he has a right to redeem the mortgage premises upon payment only of the sum for which they were sold, and that he is not bound to pay the whole amount actually due on the bonds' and mortgages. Under a statute foreclosure, if there are judgments subsequent to the mortgage, which remain a lien upon the property at the time of the sale under the statute, the purchaser takes the whole legal and equitable interest in the property as against the mortgagor and all persons claiming under him; subject, however, to the equitable right of the judgment creditors to redeem, in the same manner as if such foreclosure had not taken place. The amount which such judgment creditors are to pay upon the redemption of the premises does not depend upon the sum bid at the sale, but is regulated by the amount actually due at the time of such sale, unless it has been subsequently paid by the person who was equitably bound to pay the same. If the premises were sold for a sum much less than the amount due, and a third person was the owner of the residue of the mortgage debt, there might be some equitable claims to be settled between him and the purchaser under the statutory foreclosure, as to the distribution of the redemption money, in a case where the creditor coming to redeem was entitled to an assignment of the bond and mortgage. No such question, however, can arise here, as the complainant is the assignee of these bonds and mortgages, as well as of the interest acquired under the foreclosure. The judgment creditor coming to redeem is therefore to pay him the amount he would now be entitled to claim against the mortgaged premises, if he had taken a simple assignment of the mortgages, without any foreclosure thereof. That necessarily excludes the claim of the complainant for the costs of the statutory foreclosure, which was inoperative as against the judgment creditors.

It is charged in the bill in this case, and admitted by the answer, that at the time of the statute foreclosure, the whole value of the premises did not exceed the amount due on the mortgages, and the costs of the proceedings ; and that the complainant was ignorant of the existence of these judgments, until after he had made permanent improvements upon the premises to a considerable extent. Under such circumstances, it would be inequitable and unjust to give the defendants the benefit of those improvements, without compelling them to pay an equivalent therefor. The case would have been different, if the complainant had made the improvements with a full knowledge of the defendant’s equitable right to redeem. (See Moore v. Cable, 1 John. Ch. Rep. 385.) As a general rule, the party claiming the right to redeem premises from a mortgage, whether he is complainant or defendant in the suit in this court, must pay the costs of the proceedings here, as well as the amount due upon the mortgage, before he can be permitted to redeem. (Brockway v. Wells, 1 Paige’s Rep. 617.) The purchaser under a statute foreclosure may file a bill to foreclose the equity of redemption of a judgment creditor, or subsequent mortgagee, whose right is not barred by the sale under the power; and it is not necessary to make the original mortgagor, or any other person whose equitable claim is already barred, a party to "such bill. In such a suit, the subsequent encumbrancer is entitled to redeem, upon the usual terms, of paying the amount due upon the mortgage and the costs of the suit; unless, as in this case, the complainant has an equitable claim to a further allowance for improvements, &c. And in such cases, the court may order a release of the premises, under the direction of a master, or may decree a strict foreclosure against- the subsequent encumbrancer if he neglects to redeem, as will best "promote the ends of justice.

In this case, there must be a strict foreclosure against these defendants, unless they elect to redeem upon the terms hereafter mentioned. Gilman is entitled to redeem, by paying the amount due upon the mortgages, with the interest thereon and the costs of this suit, together with the increased value of the premises arising from the permanent improvents made thereon by the complainant; deducting therefrom the rents and profits of the premises since he took possession thereof under the statutory foreclosure. Couch is also entitled to redeem against Gilman, upon paying the same amount, together with the balance due Gilman on his prior judgment and his costs in this suit. If Gilman does not elect to redeem, as the senior encumbrancer, the other defendant may redeem, upon paying what is due to the complainant, in the same manner as the senior encumbrancer might have done. If either of the defendants shall elect to redeem the premises upon the terms proposed, and shall serve a written notice of such election upon the solicitor for the complainant within thirty days after service upon such defendant or his solicitor of a copy of the decree to be entered on this decision, it must be referred to a master to compute and ascertain the amount due to the complainant upon the principles above stated; and, in that case, all further questions and directions are to be reserved. But if both or either of the defendants shall neglect to give notice of such election, within the time prescribed, there is to be a strict foreclosure against such defendant or defendants; and with» out costs to either party as against the other.


text:
    Van Epps and wife vs. Van Deusen, executor, &c.
    If the father of an infant child, without authority, receives or takes possession of the property of the infant, he will, in equity, be considered as the guardian of the infant, and may be compelled to account as such ; and the rule is the same where a mere stranger or wrongdoer takes possession of the property of an infant and receives the rents and profits thereof.
    Whether loose declarations of the father as to the receipt of money belonging to his daughter will revive the cause of action for the same, after a lapse of 25 years from the time the legal right of the husband to recover the money had accrued. Q,uere.
    Where a testator, by his will, after giving his estate to his four children, directed that all his debts should be borne and paid equally by such children, it was held, that one of the daughters could not file a bill against the executor of her father to recover a demand she had against the estate, without first relinquishing all benefit to which she was entitled under the will, or bringing the other children, who were bound to contribute towards the payment of the debt, before the court as parties.
    An assignment by the husband, under the insolvent laws, vests in the assignee the personal estate of the wife in action, unless the same is secured to her as her separate property. But the assignee takes the legal interest subject to the wife’s right by survivorship, if the husband dies before the assignee has reduced such property to possession.
    The assignee also takes the assignment of the wife’s estate, subject to her equitable claim thereon for the support of herself and infant children, if she has no other sufiieient means for that purpose; provided she asserts her claim or institutes a suit in chancery for the recovery of such estate before the assignee has reduced it into possession.
    Upon a bill filed by the wife, chancery will interpose to restrain the husband or his assignee from proceeding at law to possess themselves of her property in action, and will compel them to allow her a suitable provision out of the same for her support.
    Where the defendant either by plea, demurrer or answer, distinctly takes the objection of the want of proper parties, the complainant should at once amend Ms bill by bringing in the necessary parties, before any further proceedings are had in the cause.
    And if he neglects to do tMs, it will be in the discretion of the court, at the hearing, either to permit the cause to stand over, upon payment of costs, to enable the complainant to bring the proper parties before the court, or to dismiss the bill with costs.
    If the defendant does not take the objection of the want of proper parties until the hearing, the complainant will be allowed a reasonable time to bring the proper parties before the court, either by an amendment of the original bill, or by a supplemental bill; unless it should appear that the necessary parties were omitted in the bill, by the fraudulent or wilful omission, or the bad faith of the complainant.

      Where a bill is dismissed at the hearing for want of proper parties, it should be without prejudice to the right or claim of the complainant in any future litigation. '
    The complainants filed their bill in this cause, in January, 1829, against the defendant, as the sole acting executor of Harpert Van Deusen, the elder, to recover the value of a certain female slave, and the proceeds of a bond which were bequeathed to Mrs. Van Epps, one of the complainants, by her aunt Maritie Witbeck. The complainants alleged, in their bill, that M. Witbeck, who died in 1787, by her will bequeathed to Mrs. Van Epps, then an infant, a female slave named Ann, together with the money due on a bond held by the testatrix, against M. Van Deusen, the grandfather of the defendant, and of Mrs. Van Epps who is his sister of the half blood. That H. Van Deusen, the elder, as the father and natural guardian of Mrs. Van Epps, about thirty-two years previous to the filing of the bill, and when she was about 14 years of age, received of her grandfather the money due on the bond; and that he also took into Iris possession the female slave, and received her services and her wages until she died at the age of twenty-four or twenty-five years. That Mrs. Van Epps continued to live with her father until the age of 20; when she married Evert Van Epps, her present husband. That the complainants frequently called upon H. Van Deusen, the elder, in his lifetime, to pay the amount received by him on the bond, and to compensate them for the black girl; and that within a year before his death, he promised them to pay the same. That he died in 1827, having previously made his will and appointed the defendant and others his executors. That the defendant alone made probate of the will; and that he had received assets more than sufficient to pay all the debts of the testator. And that the complainants had called upon the defendant as executor to pay the amount received by the testator on the bond, and the value of the black girl; but that he had refused to pay the same. The complainants prayed an account, and for payment of what was due to them out of the estate of the testator in the hands of the executor.
    January 25.

      By the' answer of the defendant, he denied all knowledges infonnation and belief as to the existence of the supposed legacies from Maritie Witbeck to Mrs. Van Epps, or that hisr testator ever received the money on the bond, or had possession of the slave, as the natural guardian of Mrs. Van Epps, or otherwise; or that the testator ever promised to pay the complainants any thing on account of any such claim. The de-; fendant admitted that the testator died in November, 1827;. and that by his will he devised to his daughter, Mrs. Van Epps, all his real estate in the county of Rensselaer, consisting of a farm, worth at least $3000; and that he gave to his two daughters, Margaret and Getty, legacies of $1000 each; and to his widow gave certain personal property for life, and after her death to the defendant and to his two last mentioned daughters. And that after giving a few other legacies of trifling amount to Mrs. Van Epps and others, he devised and bequeathed the residue of his estate to the defendant., The defendant also alleged that by the will of the testator, Mrs. Van Epps and the defendant, and their two sisters, Margaret and Getty, were each required to bear and pay an equal share, or one fourth part, of all claims and debts that should be claimed, or obtained from, or paid by the executors. He therefore insisted, by his answer, that if the complainants had any just claim against the estate of the testator, they were not entitled to claim it against his personal representative without first relinquishing all claim to the estate of the testator under the will; or at least, that. the defendant was only bound to pay one fourth of the amount due. He also insisted that the two sisters,' who by the will were bound to contribute, were necessary parties to the suit; and he claimed the benefit of the objection, of the non-joinder of them as parties, in the same manner as if he had pleaded or demurred. The defendant, in his answer, further stated, that, after the alleged indebtedness of the testator had accrued, the complainant, Evert Van Epps, was discharged under the insolvent act of April, 1813, and made an assignment of all his property to John S. Miller for the benefit of his creditors. The defendant, therefore,insisted that if the complainants had any claim or demand against the testator at the time of the said assignment, for or on account of any of the matters set forth in their bill, such claim and demand passed to and became vested in Miller, the assignee, who was a necessary party to the suit. And the defendant prayed the benefit of the objection in the same manner as if he had plead the same in bar. A replication was filed to the answer; and testimony was taken in the cause. The complainants gave in evidence the will of Mari tie Witbeck, bequeathing the bond and female slave to Mrs. Van Epps; and gave other evidence from which it appeared probable that Harpert Van Deusen, the elder, had either received the money on the bond, or had been credited with it on the purchase of his father’s farm; and that he had the services of the black girl, after the termination of her indentures to P. Hilton, in 1797, until her death, about the time ■of the marriage of Mrs. Van Epps. The defendant gave in evidence the will of his father, by which the farm in Rensselaer county was devised to Mrs. Van Epps, and she and the two other sisters were each charged with the payment of one fourth of the debts due from the estate of the decedent. Evidence was introduced for the purpose of showing that the farm had been originally “ booked” by the patroon to the maternal grandfather of Mrs. Van Epps; and that it belonged to her in equity, although her father, after his intermarriage with her mother, had obtained a lease thereof in fee, in his own name. The defendant also gave in evidence the insolvent proceedings in the case of Evert Van Epps; from which it appeared that Van Epps was discharged under the insolvent act, in 1816, and assigned his estate to Miller, as stated in the answer. The cause was heard upon the pleadings and proofs.

      J. L’Amoureux, for the complainants.
    The testator was liable to the complainant, Nancy Van Epps, for the services of the slave and the money received by him on the bond; the same having been received by him as the natural guardian •of his daughter. (Grimke v. Executors of Grimke, 1 Desaus. Equity Rep. 366. 2 Wendell’s Rep. 153.) The right of Mrs. Van Epps to this demand against her father, did not pass under the assignment executed by her husband when he received his insolvent discharge. She had an equity in the money received and the value of the slave, which was not affected by the discharge, and could not pass by the assignment under the act. (3 Petersdorf, 403, 404, N. Y. ed., and the notes and cases there cited. 5 John. Ch. Rep. 464. 6 Id. 25, 178. Mumford and others v. Murray, 1 Paige's Ch. Rep. 620. Smith v. Kane, 2 Id. 303.) It was not necessary to make the other legatees parties to the suit, as the personal property is the proper fund out of which the debts are to be paid, and the executors alone represent that fund; and as the testator intended his executors should first pay the debts, and the personal property is abundantly sufficient for that purpose. (2 John. Ch. Rep. 623, 628. 3 Id. 553. 1 Id. 349, 437.) It is not necessary for the complainants to relinquish their claim to .the legacy and devise under the testator’s will to entitle them to recover this demand. The will expressly provides for the payment of all the debts; and a legacy or a devise is not an extinguishment of a debt, unless so expressed by the will, or the intent of the testator to that effect is clearly inferrible from it. (2 Mad. Ch. 41, 42, and cases there cited. 5 Cowen's Rep. 370. 4 Wendell, 443. Matthews on Presump. Ev. 111, 112, &c.) The statute of limitations does not apply to trust property; and, besides, the testator promised within six months of his death to pay this demand. There can be no off-set for rents in this case, as the real estate came through the grandfather of Mrs. Van Epps, on her mother’s side; and the deed, instead of being taken to the father, ought to have been taken to the mother of Nancy; so that on the death of the father, who would have had an estate by the curtesy, the farm would come to Mrs. Van Epps. The defendant cannot make a charge against the complainants for the support,-education, &c. of Mrs. Van Epps. This the testator was bound to do, without giving him any claim upon the money paid on the bond or the value of the slave. (1 Mad. Ch. 343. 3 Atk. 399.)

      Daniel Cady, for the defendant.
    The complainants’ demand rests on the assumption that the testator had in his lifetime, and at the time of the marriage between the complainants, money in his hands which belonged to the wife before marriage. If this assumption be founded in truth, then, on the marriage, the money belonged to the husband, and he could have maintained an action at law in his own name to recover it, or he could have released or discharged all claim therefor. (Schuyler v. Hugh, 5 John. Ch. Rep. 207.) More than twenty-five years have elapsed since the marriage, and the demand ought not at this day to be enforced.
    This demand, if it ever existed, passed to the assignees of Evert Van Epps when he obtained his insolvent discharge; and they only can sustain an action for it. A general assignment in bankruptcy passes all the interest of the husband in the property of the wife, subject to her right of survivorship. (2 Kent's Com. 116.) Van Epps, upon the application for his discharge, inserted in his inventory no demand against the testator. It is only when the husband or his assignee is compelled to resort to a court of equity to get possession of the estate of the wife, that the wife can claim to have a provision made for her. In this case an ample provision is made for the wife in the real estate devised to her. (2 Atkins, 434, 420. 5 John. Ch. Rep. 208. 2 Id. 206.)
    The complainants have not brought the necessary and proper parties before the court. The testator by his will disposed of all his real and personal estate ; nothing was left in the hands of the executor which was not expressly bequeathed. No debts can therefore be paid, without diminishing the bounty intended by the testator for his legatees. The testator had a perfect right to bequeath and devise his estate to whom he pleased, and to impose upon the legatee or devisee such burthen as he thought proper. The legatee or devisee is left at liberty to refuse the legacy and devise, or accept them with the burthen imposed by the testator. A mere creditor of the testator, who claimed nothing under the will, might undoubtedly sue the executor, who would be compelled to pay and then seek a remedy against his co-legatees. (Mitford's Pl. 39, 144.) One leading object of a court of equity is to put an end to litigation; and for that purpose the court requires that all parties interested in the subject matter of the suit be made parties. Margaret and Getty are each bound to pay one fourth part of the debt, if any be due to the complainants from the testator. Margaret and Getty, therefore, have a direct interest in the ascertainment of the amount of that debt, and ought not to be concluded by any proceedings to which they are not parties. Nor ought the complainants to be allowed to sustain three several bills against their three co-legatees, in each of which suits the same matters are to be litigated and the same proofs required.
    The complainants claim and hold a large real and personal estate under the will; they are not therefore at liberty to set up a claim as creditors, to the prejudice of the other legatees. ' It is the settled doctrine of a court of equity, and agreed on all sides that no man shall be allowed to disappoint a will under which he takes a benefit. (1 Ves. jun. 523. 9 Ves. 534.) Did the testator intend to have his daughters Margaret and Getty exposed to have the legacy of $1000 bequeathed to each of them, taken to pay a debt due from him to his daughter Nancy, to whom he had bequeathed and devised more than $3000 1 No person can for a moment suppose that •the testator intended that it should be in the power of one of the legatees to defeat the legacy intended by him for another. The pretence that the farm which the testator devised to Nancy belonged to her maternal grandfather, is without even a plausible foundation.
    If the declarations of the testator amount to a promise to ;pay this demand, the promise was without consideration. If the testator at that time was indebted on account of the bond and slave mentioned in the complainants’ bill, he was indebted not to them, but to the assignee of Evert Van Epps as an insolvent. A debt due to the assignee would be no consideration for a promise to pay to the insolvent himself; nor can the declarations of the testator, although made after he had ■executed his will, alter the effect of the will, or give to the ■complainants a right to hold under it, and disappoint the other legatees.
   The Chancellor.

From the testimony in this case, there is very little doubt that Harpert Van Deusen, the elder, ^between 40 and 50 years since, received a certain sum of money, the precise amount of which cannot now be ascertained, and that this money then belonged to his infant daughter. It also appears that he took home the black girl, after the expiration of her indenture, in 1797, and had the benefit of her services until her death. Although, as the mere guardian by nature, he had no right to receive the money due on the bond, or to receive the services of the slave, yet this court will hold hiin liable to the same extent as if he had been the legally constituted guardian, so far as he has had the benefit of the infant’s property. A mere stranger, or wrongdoer, who takes possession of the property of an infant, and receives the rents and profits thereof, may, in equity, be considered as the guardian of the infant, and may be compelled to account as such. (1 West’s Rep. 265. 2 Peer Wm’s, 645. 1 Vern. 296. 2 Car. Law Repos. 412.) The father however could not be charged with the value of the slave, but only with the net profits of her labor received by him, over and above the expenses of her clothing and support. The death of the slave at the early age of 24 or 25, as stated in the bill, was a loss for which the father could not be answerable. If the question as to the receipt of the amount due on the bond, and the services of the black girl, was the only one in this case, it might be necessary to inquire whether the loose declarations of the father, which are testified to by the children of the complainants, were sufficient to revive the cause of action for these stale claims which had lain dormant for more than twenty-five years after the husband’s legal right to recover such claims had accrued. In relation to the equity of these claims, it may be sufficient to remark that the complainants undoubtedly received an ample equivalent therefor in the free use which they had of the Greenbush farm without rent, for more than ten years after the discharge of E. Van Epps under the insolvent act, in 1816, and before the death of his fathcr-in-law. If that farm actually belonged to the mother of Mrs. Van Epps, the father, as tenant by the curtesy, was entitled to the use of it during his life; and he therefore had a legal right to charge the complainants for the use thereof. And it is hardly to be presumed that he would have suffered them to occupy the farm withoiit rent for so many years, if he had supposed this dormant claim would have been revived after his death, for the purpose of defeating the disposition of his property, which had been made by his will. There are other objections to the recovery in this suit, however, which renders it unnecessary for me to decide upon the merits of that part of the cóntroversy, at this time.

There can be no doubt of the intention of the testator to charge each of his children, who were legatees or devisees under his will, with the payment of one fourth of all debts which were justly due and owing by him at the time of his death. ' After directing the payment of his debts by his executors, in the usual form, and disposing of all his real and personal estate among his children and others, the testator proceeds as follows: “ Notwithstanding the directions herein contained for the payment of my debts, I hereby order and direct my son Harpert and my daughters Nancy, Margaret and Getty, each to bear and pay one fourth of all past claims and debts that shall be claimed or obtained from my executors, or paid by my executors; and that each shall bear and pay one fourth of my funeral expenses, and the putting of a good and decent fence around the burying ground on the farm on which I reside, and of procuring a good tomb stone for my grave.” Although an ordinary creditor of the testator might not, even in this court, be deprived of Iris usual remedy against the executor for an account and satisfaction of his debt out of the personal estate, without bringing these other legatees and devisees before the court, (upon which point I do not intend to express any opinion at this time,) neither of those legatees or devisees can bring a suit to recover a debt against the estate, without first relinquishing all benefit which he or she is entitled to under the will, ór bringing the other parties, who are bound to contribute towards the payment of that debt before the court as parties. If the whole property devised and bequeathed to Mrs. Van Epps actually belonged to her,- in equity, as the heir at law of her mother, it is probable that, upon a bill properly framed, she might have a decree against the three other devisees and legatees under the will, for the payment of a debt justly due from the testator, without relinr quishing the mere legal title to her own property, which was transferred to her by the will. But even in that case, she would be compelled to relinquish the specific legacy of certain personal property given to her by the will, or to abandon her claim as to one fourth of the debt. And to such a bill the two half sisters who are bound to contribute towards the payment of the debts, should be parties. In the bill filed in this case, there is no allegation whatever as to the equitable right of the complainants to the Greenbush farms, independent of the devise thereof by the will of the testator. That question, therefore, was not in issue in this cause, and no decree could properly be founded upon the admissions or- proofs in relation to this subject.

Another serious and substantial objection to the complainants’ right to a decree in this cause, arises out of the assignment of the husband, under the insolvent act, in 1816. That assignment is no bar to the wife’s equity to a support for herself and her infant children out of the property which belonged to her husband in her right merely, provided her other property is insufficient for that purpose. But as between the husband and this defendant, as the representative of his father, neither can be admitted to allege or prove that the testator committed perjury in the insolvent proceedings. It appears from those proceedings that the testator became a petitioning creditor of Van Epps for the sum of §1529,87, which was nearly two thirds of all the debts then owing by the insolvent. Both must therefore have sworn, on that occasion, that such sum was justly due from Van Epps to the testator. And all the husband’s interest in the claim for which this suit is brought is specifically pledged, in the hands of the assignees, for the payment of this and other debts due to the creditors of the insolvent at that time.

An assignment by the husband, under the insolvent act, vests in the assignee the personal estate in action of the wife, unless the same is secured to her as her separate property. But the assignee takes the legal interest in the same subject to the wife’s right by survivorship, if the husband dies before the assignee has reduced such property to possession. (Harper v. Ravenhill, 1 Tamlyn's Rep. 144. Pierce v. Thornely, 2 Sim. Rep. 167. Honner v. Morton, 3 Russ. Rep. 65, 90.) The assignee also takes the assignment of the wife’s estate in action, subject to- her equitable claim thereon for the support of herself- and. her infant children, if she has no other sufficient means for that purpose; provided such claim is asserted by the wife,'or there is a'suit instituted, in this court for the recovery of such property, before the assignee has reduced it to possession. (Smith v. Kane, 2 Paige's Rep. 303. Steinmetz v. Halthin, 1 Glyn & Jam. Rep. 64. 2 Kent's Com. 139.) It has indeed been doubted whether this court could interfere to restrain the husband, or his assignee, from proceeding at law to possess himself of the wife’s property in action, and to compel him to allow her a suitable provision out of the same for her support. But if the wife is entitled to such an equity upon a bill filed by the husband or his assignee, or by a third person, as all the cases upon this subject admit, I can see no valid objection in principle against granting her similar relief where the husband, or the general assignee in bankruptcy, is endeavoring to deprive her of that equity by an unconscientious proceeding in a court of law. The case referred to-by Lord Hardwicke, (1 West's Rep. 581,) in which an injunction was granted to restrain the husband of an infant feme covert from proceeding in the ecclesiastical court to recover a legacy due to his wife, is analogous in principle to the case of an injunction to restrain the husband or his assignee from proceeding at law for the same purpose. It is settled indeed in the case of Kenney v. Udall, (5 John. Chan. Rep. 464, 3 Cowen's Rep. 590, S. C.,) that if the wife’s property in action is of equitable cognizance, she may file her bill in this court against her husband, or his assignee, to restrain them from obtaining possession of the fund without providing for her support. The- same principle has been recognized by the court of appeals in Kentucky. (See Elliott v. Waring, 5 Monroe's R. 341.) The claim in this case comes within the principle, of. those decisions ; as this court treats a party who has received the property of an infant as the guardian, and compels him to account as such. I am therefore satisfied that upon a proper bill the right of the wife would be protected as against the creditors of the husband, and against his assignee under the insolvent act. The equity of the wife, however, does not extend to the assigned properly, where she has a reasonable fund for the support of herself and her infant children independent thereof. In this case it appears by the pleadings and proofs that she has a valuable farm of three hundred acres of land; and there is nothing to show that it is not amply sufficient for her support If such is the fact, she has no equitable claim whatever to this demand, against the estate of her deceased father, the legal title to which passed to the assignee of her husband, for the benefit of the creditors, thirteen years before the filing of the bill in this cause. But the proper parties are not before the court for the decision of this question. A decree in this case would not protect the defendant against the claim of the assignee. And as this objection was distinctly made in the answer of the defendant, the complainants should have amended their bill and brought the assignee before the court, if they wished to enforce the wife’s equity to a provision out of the assigned property.

There seems to be some little doubt as to the practice of this court in dismissing the bill for want of proper parties, or in permitting the complainant to amend, or to file a supplemental bill, for the purpose of bringing the proper parties before the court. I apprehend the whole difficulty on this subject has arisen from a want of attention to the distinction between those cases where the objection is taken by the defendant at the proper time and in the proper form, by plea, answer or demurrer, and those where he neglects to make the objection until the hearing of the cause. If the objection is taken by plea or demurrer, it is a matter of course to dismiss the complainant’s bill upon the allowance of the plea or demurrer, unless the complainant takes issue on the plea, or obtains leave to amend upon the usual terms. But the defendant is not bound to plead or demur. He may make the objection in his answer, and may have the same benefit of the objection at the hearing as if it had been taken by plea or demurrer. Where the objection is made in the answer, the proper course for the complainant is to amend his bill, so as to bring the proper parties before the court before any further expense has been made in the cause. If he neglects to do this, it will rest in the discretion of the court, at the hearing, to permit the cause to stand over, upon the payments of all such costs as he may have unnecessarily subjected the adverse party to by his neglect, for the purpose of enabling him to bring the proper parties before the court, or to dismiss the bill with costs. (See Baldwin v. Lawrence, 2 Sim. & Stu. Rep. 18. Greenleaf v. Queen, 1 Peters’ Rep. 149.) ,And if the bill is dismissed at the hearing for want of proper parties, it should not be dismissed absolutely; as that might bar a future suit against the same defendants, in which all other necessary parties were brought before the court. (See Craig v. Barbour, 2 J. J. Marsh. Rep. 220. Thompson v. Clay, 3 Monroe’s Rep. 361.) The proper course in such a case, if the cause is not permitted to stand over, is to dismiss the bill without prejudice to the claim or right of the complainant in any future litigation. If the defendant makes no objection for want of proper parties, either by plea, answer or demurrer, and raises that objection for the first time at the hearing, the bill should not be dismissed, where the defect can be remedied by an amendment or a supplemental bill; provided the complainant elects to bring the proper parties before the court within a reasonable time. (3 Monroe’s Rep. 125. 7 Id. 57, 217, 477. Guen v. Poole, 5 Bro. P. C. 504, Toml. ed. Court v. Jeffrey, 1 Sim. & Stu. Rep. 105.) I am aware of but one exception to this rule; and that is where it is evident that the necessary parties were left out of the bill, by the fraudulent or wilful omission of the complainant, or in bad faith. (See Stafford v. The City of London, 1 Peer Wms. Rep. 428. Rowland v. Garman, 1 J. J. Marsh. Rep. 76.)

In this case, the discharge of E. Van Epps under the insolvent act, in 1816, and the assignment of his property, were distinctly stated in the answer. The complainants were also apprized by such answer that the objection for the want of parties would be made at the hearing, and that the defendant claimed the same benefit as if the objection had been made by a plea. As it was perfectly evident that no decree could be made against the defendant in favor of the wife’s equity without having the assignee before the court, and as the facts stated in the answer must have been within the personal knowledge of both the complainants, there is no excuse for their neglect to bring the assignee before the court, by an amendment of the bill, in proper season. There are also many reasons for believing that further litigation in this matter would only subject the complainants to a useless and unnecessary expense, from which they could not ultimately derive any benefit. I shall therefore direct this bill to be dismissed, with costs; but without prejudice to the equitable rights of the wife, if she thinks proper to institute a new suit, and to bring all the necessary parties before the court.


text:
    Le Roy vs. Platt and others.
    Where there is a mistake in a deed to a trustee, who afterwards conveys the premises to the cestui que trust without any new consideration, the latter is not entitled to defend himself as a bona fide purchaser without notice of the mistake.
    By the grant of a mill, or the grant of land with the mill thereon, the waters, flood gates, &c. which are necessary for the use of the mill, pass as incident to the principal subjects of the grant.
    Where lands belonging to the owner of a mill are overflowed by the water of the mill pond, a conveyance of the mill with the waters and water courses, &c. gives a right to the grantee to continue to overflow lands of the grantor which are not conveyed, to the same extent that they were overflowed by the waters of the mill pond at the time of the conveyance.
    If a defendant puts in his answer and goes to hearing, without objecting to the jurisdiction of the court on the ground that the complainant has a perfect remedy at law, it is too late to make that objection at the hearing.
    The bill in this cause was filed to restrain the defendants from prosecuting a suit at law in the supreme court. The complainant was the owner of mills at the village of Le Roy; and, as the defendants alleged, he had without authority overflowed their lands by the waters of his mill pond. In August, 1801, the complainant and three other persons were the owners of a large tract of land, usually denominated the triangular tract. On the 4th of August, 1801, the proprietors of the triangle entered into a contract with R. M. Stoddard and D. Saltonstall to sell to them lot No. 3, in section No. 1, of township No. 1 in that tract; which lot contained about 500 acres of land, and included the mill seat and the other premises in controversy in this cause. By this contrac^ gtoddard and Saltonstall agreed to erect a grist mill and a saw mill on the premises within two years, and were to pay to the proprietors of the triangle $2500, in four annual instalments, with interest. And upon the payment of such-., purchase money, and the performance of the other conditions of the contract on the part of the purchasers, the proprietors were to execute to them a conveyance in fee. In April, 1802, E. Platt, the ancestor of the defendants, entered into a contract with Saltonstall to purchase his right to the undivided half of a ten acre mill lot mentioned in the contract of August, 1801. And Platt covenanted to perform the agreement made by Saltonstall jointly with Stoddard, as to the erection of the grist mill, and the keeping in repair the saw mill which had then been erected upon the mill lot. A division was subsequéntly made of the other lands, in lot No. 3, except the ten acre mill lot. And E. Platt afterwards purchased of Saltonstall his right to certain other lands held under the contract with the proprietors of the triangle; which purchase included the lands now alleged to be overflowed by the complainant’s dam. Soon after E. Platt’s contract for the purchase of half of the mill lot, he and Stoddard erected a grist mill thereon, in addition to the saw mill which had been previously built; and E. Platt continued in the possession and occupation of the mills until his death, in 1811. By his will, he authorized L. Ward, junior, his executor, to sell his real estate, for cash or on credit. In pursuance of such authority, the executor, in April, 1814, contracted to sell to G. New-ell the interest of E. Platt in the undivided half of the ten acre mill lot, and the mills, mill seat, ways, waters, and water courses, with the privileges and appurtenances, for the price or consideration of §3000. And Newell was authorized to apply any part of the purchase money in paying what was due to the proprietors of the triangle on account of any of the lands bélonging to the heirs and devisees of E. Platt. In January, 1818, Newell obtained a conveyance from the proprietors of the triangle for the undivided half of the ten acre mill lot> and also for that part of the other lands which had been set off to Saltonstall in the division between him and Stoddard. That conveyance included the lands now in controversy, or alleged to be overflowed; which E. Platt in his lifetime had purchased from Saltonstall. On the 23d of February, 1818, Newell conveyed the last mentioned land toWard, the executor, with covenants of warranty. And Ward after-wards divided the same among the heirs and devisees of E. Platt. Lots No. 1 and 2, of that division, fell to the share of Ira Platt, who afterwards died without issue leaving the defendants, except the defendant Margaret Platt his mother, his heirs at law.

      January 28.

      In January, 1818, Webb and Dummer recovered a judgment in the supreme court against Newell, which was docketed the 20th of the same month; upon which judgment an execution was issued to the sheriff of Genesee. Under this execution, the undivided half part of the mill lot, with the mills thereon, were sold and conveyed by the sheriff to the proprietors of the triangle, in September, 1819. In a subsequent partition between those proprietors this undivided half of the mills and mill lot was assigned to the complainant; and he afterwards acquired the title to the other half, under Stoddard’s heirs. It was alleged, in the bill, that in the conveyance from Newell to Ward of the lands adjoining the mill lot, and which were overflowed by the complainant’s dam through inadvertence or accident, a mistake had ■ occurred in not inserting an exception or reservation of the mills, mill seat, ways, waters and water courses, in conformity with the provisions of the agreement of April, 1814. This allegation was denied by the defendants, upon their information and belief only. Much testimony was taken in the cause ; but it ■ was principally in reference to the relative height of the several dams which had been built in 1801, 1815 and 1824, and as to the quantity of land overflowed by means of such dams respectively. The cause was heard on pleadings and proofs.

      H. J. Redfield, for the complainant,
    cited 1 Mad. Ch. 24, 47 to 84; Rob. on Frauds, 82; Joynes v. Statham, 3 Atk. Rep. 387; Ex parte Mills, 2 Ves. jun. 299 ; Gillespie v. Moon, 2 John. Ch. Rep. 596 ; Kidney v. Coussmaker, 1 Ves. jun. 445;
      Higinbotham v. Burnett, 5 John. Ch. Rep. 187; De Riemer v. De Cantillon, 4 id. 85; 1 Shep. Touch. 89; Jackson v. Dunsbagh, 1 John. Cas. 91; Stow v. Tifft, 15 John. Rep. 463; Phoenix Ins. Co. v. Gurnee, 1 Paige’s Rep. 278; Jackson v. Wilkinson, 17 John. Rep. 146 ; Jackson v. Defendorf, 1 Caines’ R. 493 ; Mann and Toles v. Pearson, 2 John. Rep. 37; 3 Dane’s Abr. ch. 76, art. 8, sec. 12 ; 4 Id. ch. 114, art. 29, sec. 2 ; Leonard v. White, 7 Mass. Rep. 6; 1 Jac. Law Dic. 119, tit. Appurtenances ; Howton v. Frearson, 8 T. R. 50 ; Rob. on Frauds, 153; Rosevelt v. Fulton, 2 Cowen’s R. 129; Dale v. Rosevelt, 5 John. Ch. Rep. 174; Higinbotham v. Burnett, 5 id. 184; 3 Kent’s Com. 355 ; Sweet v. Green, 1 Paige, 473.
    fP". /Cení, contra,
    cited Hart v. Ten Eyck, 2 John. Ch. Rep. 63 ; Executors of Getman v. Beardsley, 2 id. 274; Nicoll v. Trustees of Huntington, 1 Id. 183 ; Att’y Gen. to the Prince of Wales v. St. Auban and others, 1 Wightwick’s Excheq. Rep. 185 to 187, 196 to 198, 214 to 216, 220 to 238; 1 Mad. Ch. 25, 26, 135; Speer v. Crawter, 2 Merivale, 410; Eden on Inj. 31, 37; Robinson v. Lord Byron, 1 Brown’s Chan. Cas. 588; 2 Cox’s Ch. Cas. 4, S. C.; Crowden v. Tinckler, 19 Ves. R. 625.
   The Chancellor.

Margaret Platt, the mother of I. Platt, deceased, joined in the suit at law as one of the plaintiffs. Although she could not be the heir to her son, as the law then stood, yet the complainant was justified in making her a party in this suit, as she might have acquired an interest in the premises in question in some other way. She alleges in her answer that she had no interest or claim in this controversy, and that her name was used as a plaintiff in the suit at law by mistake. As there is an improper joinder of plaintiffs, it is a matter of course that the suit at law must be discontinued, and the complainant will recover his costs of the defence by the judgment of the court in which the suit is pending. There can therefore be no necessity for a decree against Mrs. Platt, whatever may be the result of this suit as to the other defendants. The bill as against her must therefore be dismissed, but without costs.

One objection made upon the argument, on the part of the defendants, was, that even if the allegations in the bill Were true, the complainant had a perfect defence at law; and, therefore, that this court could not take jurisdiction of the case. The short answer to this objection is that the defendants have not raised any such objection by their answer, and they are too late in making it for the first time at the hearing. (Grandin v. Le Roy, 2 Paige’s Rep. 509.)

From the pleadings and proofs in this cause, it is very evident that the conveyance from the proprietors of the triangular tract to Newell in January, 1818, and the subsequent conveyance from him to Ward the executor in February thereafter, were merely the means adopted by Newell and Ward for carrying into effect the contract of April, 1814, for the sale of the undivided half of the mill lot to Newell. E. Platt in his lifetime or his executor afterwards, and it does not distinctly appear which, had become entitled to Saltonstall’s interest in the whole premises set off to him in the partition or division between him and Stoddard in 1807. But the legal title to the whole was still in the proprietors of the triangle, to whom Newell was authorized to pay the balance of the purchase money then due to them from the estate of E. Platt. Newell, therefore, being entitled to a conveyance for the half of the mill lot, and the mills, mill seat, ways, water and water courses, with the privileges and appurtenances, under the contract of 1814, and the executor, as trustee for the heirs, being entitled to the residue of the property, Newell undoubtedly took the conveyance for the whole with the intention of after-wards conveying to the executor only that portion of the premises which he was not authorized to retain under his contract. In equity, therefore, he was entitled to" the same rights as if the conveyance of the wliole premises had been given by the proprietors directly to Ward and the latter had conveyed to Newell the undivided half of the mill lot, mills, &c. according to the terms of the contract of April, 1814. The covenant of warranty from Newell is easily accounted for; as it appears he had given back to the proprietors a mortgage upon the whole premises to secure a portion of the purchase money, and there was also an outstanding judgment against him which was a lien upon the legal interest in the whole premises conveyed to him by the proprietors. Ward, the trustee, has no distinct recollection of the manner in which the parties intended to carry into effect the contract of 1814. He therefore leaves us, by his deposition, to draw such inference as may be properly drawn from the whole transaction. That inference is, that if a different interest was left in Newell, by his deed to Ward, from what it was intended he should have under the contract of April, 1814, there was a mistake in the deed, and it must be corrected so as to carry into effect the intention of the parties thereto. As the conveyances from Ward to the heirs were not founded on any new consideration, being merely transfers of the legal estate from a trustee to his cestui que trusts, the heirs are not entitled to protection as bona fide purchasers. And they must take the legal title subject to the correction of the mistake which has been made in the conveyance to Ward. Considering Newell as the owner of the mills and mill lot, and also as the owner of the servient tenement which was overflowed for the use of the mills, a sale and conveyance of the servient tenement to a third person without reserving the servitude, or the right of continuing to overflow the land for the necessary purposes of the mills, would probably extinguish that right. But if Ward is to be considered as owning the whole, and as selling the mill lot with the mills thereon, and the water and water courses, &c. then a conveyance from him to Newell in conformity to the contract of April, 1814, would have given the latter a perfect right to overflow the land to the same extent that it was overflowed, for the purposes of the mills, at the time of that conveyance. By the grant of a mill, or the grant of land with the mill thereon, the waters, flood-gates and the like, which are of necessary use to the mill, pass as incident to the principal subjects of the grant. (Touchstone, 89. 4 Kent's Com. 2d ed. 467.)

I apprehend, however, that the rights of the parties in this case do not depend upon the mere equitable claim to correct the mistake in the deed from Newell to Ward. But that the complainant has a legal right, under the sheriff’s deed, which is paramount to the conveyance of the 23d of February, 1818. The judgment under which the land was sold by the sheriff was docketed in January, 1818; and Newell was at that time the owner of the legal estate, both in the mill lot and in the land overflowed by the waters of the dam. The sheriff’s deed relates back to the docketing of the judgment, so as to pass the same title to the purchaser as if the sale had taken place at that time, or at any time afterwards, before the conveyance to Ward. Although the lands conveyed to Ward were not sold under that judgment, and no interest therein was in terms conveyed, yet the purchasers of the mill lot and the mills on the sale under the execution, by virtue of the sheriff’s deed, acquired the same right to overflow those lands for the use of the mills as they would have acquired by a conveyance from Newell, in the same terms, previous to the conveyance to Ward. And if Newell, who was the owner of both lots on the 20th of January, 1818, had conveyed the mill lot, with the mills thereon, to the proprietors of the triangle on that day, can there be any doubt that they would have had the right to continue to overflow the land subsequently conveyed io Ward, to the same extent that it was then overflowed for the use of these mills ? The complainant has therefore a legal as well as an equitable claim to protection in the enjoyment of the right, to that extent. Although this might have constituted a good defence at law, yet, as the defendants have put in their answer and gone to proofs in the cause without any objection to the jurisdiction of the court, it is now correct and proper that I should declare and establish that right, and thus save to both parlies the expense and trouble of reinvestigating the same question in a court of law. The defendants, and all persons claiming under them, must therefore be perpetually enjoined from commencing or prosecuting any suit or suits against the complainant or his heirs or assigns, for any damages which may have accrued or been sustained, or which may hereafter accrue or be sustained in consequence of the exercise of the right to raise the waters. of the mill pond, for the use of the present mills or any others which may be erected in their place, to the extent to which such waters might have been raised by the dam which was in existence in January, 1818. And the decree must declare and establish the right of the complainant to raise the waters of the pond to that extent for the use of the mills.

There has been much testimony introduced in this cause, for the purpose of ascertaining whether the present dam does in fact raise the waters of the pond to a still, greater extent; and so as materially to affect the rights of the defendants in the enjoyment of their property. If it does not, the complainant is entitled to protection against any further litigation at law on that question. And if he is in fact infringing upon the rights of the defendants, they have an equal claim to a decree of this court, declaring and establishing their rights in reference to the present dam. The decretal order, which is now to be entered, must therefore further direct that if either party shall, within sixty days after the entry of such decree, elect to have a feigned issue awarded under the direction of this court to try this question, and to assess the damages of the defendants if the issue shall be determined in their favor, and shall file a notice of such election with the register, such an issue is to be made up and tried in the county of Genesee. And either party may have a struck jury for the trial of such issue, by giving notice to the adverse party of his or their wish to have such a jury, previous to the settling of the issue. If either party elects to have a feigned issue, then the question of costs in this cause, and all other questions and directions, except as above specified, are to be reserved until after the trial of the issue. But if neither party shall file a notice of such election within the time prescribed, then so much of the bill as seeks to restrain the defendants from prosecuting a suit or suits at law for any damages sustained by them, from raising the water above the prescribed limits, so as materially to affect the rights of the defendants, must be dismissed; and without prejudice to the rights of either party as to that part of the controversy between them. If a feigned issue is not awarded, neither party is to have costs, as against the other, in this suit.