text:
    Stafford vs. Bryan.
    It seems the court of chancery cannot entertain a bill in the nature of a bill of review upon the ground of newly discovered facts, to review a decree which had been affirmed in the court for the correction of errors, unless such a right has been expressly reserved by the final decree of the appellate court.
    To revive a debt barred by the, statute of limitations, there must be an admission of a subsisting indebtedness, unaccompanied by, any thing which shows the intention of the party to avail himself of the statutes' as a bar, or which is sufficient to rebut the implication of a promise to pay.
    Where a witness on his cross-examination is interrogated as, to matters which are irrelevant and improper, and -which cannot benefit either party in the Buit, the party at whose request such cross-examination was had is charge, able with the examiner’s fees for drawing, engrossing and copying such part of the testimony as was useless or irrelevant.
    If the depositions of witnesses are unnecessarily prolix or irrelevant, although the solicitor at whose request they were taken down may be answerable to the examiner for his fees, he cannot be allowed therefor on the taxation of the costs, even as against his own client.
    Where there is a general decree for costs against the complainant, he is not chargeable with the extra expense which has been produced by the neglect of the defendant to put in a perfect answer at first.
    But the draft and copies of so many folios of the further answer as would have been necessary to malte the first answer perfect, ór as have been made necessary by subsequent amendments of the bill, are properly taxable.
    Only two copies of the bill or answer in addition to the engrossed copy to file are to be allowed on a taxation.
    The jurat should be drawn up by the solicitor in the form prescribed by the 18th rule, and charged as part of the folio contained in the bill or answer, and not as a separate affidavit.
    Where a party obtains a general decree for costs in the cause, he is entitled to have taxed the costs of a successful interlocutory motion if no direction as to costs was given at the'time, unless such application was granted as a mere, matter of favor, or to relieve the party from the consequences of his own default. ,
    The party opposing a motion ■unsuccessfully is not entitled to the costs of opposing, as costs in the cause.
    The party making an unsuccessful motion is not entitled to the costs of such motion; but the party opposing the same is entitled to his costs, as costs in the cause, unless a different direction is given at the time.
    Under the fee bill in the revised statutes, the solicitor is not entitled to charge by the folio for the draft or copies of his bill of costs.
    Bills of costs which are to be annexed to the decree or enrolment must be fairly engrossed, without unnecessary erasures or interlineations, before they are certified by the taxing officer; and if they are not in that situation, he should direct them to be re-engrossed.
    FebruarylGth.
    After the decision of this cause as reported in 1 Paige’s Rep. 239, the complainant appealed to the court for the correction of errors, and the decree of dismissal was affirmed with costs. Pending that appeal the complainant called the defendant as a witness before an examiner, in another cause pending in this court, in which the same note in controversy in this suit was in question between the complainant and third persons. The complainant after such examination applied to the court of errors to stay the hearing in that court until he could apply to this court for leave to file a supplemental bill in the nature of a bill of review; for the purpose of showing that upon such examination the defendant admitted he had not paid the note. That motion having been denied, and the remittitur, containing the affirmance of the decree of dismissal with costs, being now brought into this court.

      J. Lansing, for the complainant,
    presented a petition for leave to file a supplemental bill in the nature of a bill of review, and that all the proceedings in the mean time be stayed. The complainant also applied for a retaxation of the costs in this court.

      S. Butcher, junior, for the defendant,
    objected that this court could not review a decree which had been affirmed on appeal, even upon newly discovered facts. He also insisted that there was no admission of indebtedness in the deposition of the defendant inconsistent with his answer in this cause, or which could authorize a recovery for the note in question. Other objections were also made, which it is not necessary to state.
   The Chancellor.

Without examining the question at length, whether this court can in any case entertain a bill of review after the final decree of the court for the correction of errors in the cause, it may be sufficient to say that the case of Barbon v. Stearle, (1 Vern. 416,) relied on by the complainant’s counsel, seems to be an authority against such right. The allegations in the bill in that case where, that pending the appeal, as the complainants had since discovered, the defendant had suppressed certain evidences and burnt the deed on which the complainant’s title depended. And a discovery of these matters was prayed merely in aid of an application which was intended to be made to the house of lords, when it should be in session, for relief there. The complainant in his bill, as well as the counsel on the argument of the demurrer, expressly disavowed any authority in the court of chancery to reverse or alter the order or decree of the house of lords. And the lord chancellor himself appears to have thought he had no such right; for he directed that after the defendant had answered the bill, the complainant should not be permitted to proceed any further without the special leave of the court. If this court can review, orí new evidence#^ decree affirmed in the court of dernier resort, it can also review a decree which has been reversed there ; but I doubt the authority of the chancellor to do it in either" case, Unless that court has expressly reserved to him that right. If the facts in this case had been sufficient to authorize such a‘proceeding, a provision to that effect might have been inserted in the decree of affirmance. ; 1 ,

But if that decree" was not in the way of this application, I think the facts in this case are not sufficient to authorize the filing of,a bill of review. . If the decisiop of this court, or that' of the,Court of errors, had turned upon the question whether the note had or had not been paid, I presume the result would have been different, even on' the facts as originally presented in the cause. The case turned wholly on the. statute of limitations, which was considered by both, courts as a legal bar to the suit, whether the note had been ever paid or not: My own opinion certainly was that the note never had been paid; but I did not believe the defendant had acknowledged it as a valid and subsisting debt; or had ever offered or promised to pay it, within six years previous to the commencement of this suit. • And the .same opinion was expressed by several members of the court .which affirmed my decree. • . * ' '

I think the counsel has misunderstood the deposition of the defendant which was. made before the examiner# when takén in connection with his original answer. In the answer he stated his belief that the note had been actually paid. If: in the further progress of "this suit his opinion had been altered on that point, or he had serious doubts on the subject, he could not reiterate the expression of that belief on his examination as a witness, without doing great injustice to one of the parties in that suit. He does .not- however admit that the note never had been paid'; he at most evades giving any direct answer to that inquiry. The language of his deposition, in answer to ' successive, interrogatories which were undoubtedly put to him by the complainant’s counsel, is, that he does not know when, 'where, or to whom the note Was paid; but that at all events'it is not now a subsisting demand, being barred by the lapse of time. He refuses to swear that the note has been paid in money. In a subsequent part of the deposition he says he did not know that he was indebted to the firm previous to the death of John Stafford. But this could not be true if he admitted that he at that time knew that the whole amount of this note was an equitable and subsisting demand against him. To take a case out of the statute of limitations, there must not only be an admission of a present subsisting indebtedness, but it must be unaccompanied with any thing which shows the party intends to avail himself of the statute as a bar, or which is sufficient to rebut the implication of a promise to pay. The opinions of Justice Sutherland in this case, before the court of errors, and of Justice Marcy in the case of Purdy v. Austin, in the supreme court, (3 Wendell’s Rep. 187,) are sound and correct expositions of the law upon this subject. The evils of resorting to uncertain and vague declarations of parties to revive debts barred by the statute have been so great and have led to so much perjury that it has recently been found necessary in England to prohibit the introduction of any parol evidence to prove an admission of indebtedness or a promise to pay a debt which is barred by the lapse of time. ( Statutes at large, 8 Geo. 4, May 9, 1828.)

I am satisfied the new matters now sought to be brought before this court by the bill of reveiw could not have altered the result if they bad been given in evidence on the former hearing. The petition must therefore be dismissed with costs to be taxed against the complainant, and to be included in the same bill with the general costs in the cause ; and there must be a decree, in the usual form, to carry into effect the decision of the court of errors as contained in the remittitur. The costs of the proceedings in that court on the appeal, must be taxed separately, but all the costs in this court must be included in one bill and the taxed costs in both courts must be filed with t-he register and annexed to the enrolment of the final decree.

On the question of re-taxation which has been made and argued in this cause, I have looked into the bill of costs and the petition and affidavits and find that the counsel fees were properly allowed, except some which were incurred in relation to proceedings for which the complainant was not answerable, as hereafter mentioned. The charge for the examiner’s fees, so far as relates to dra wing and copying the direct examination of S. Butcher, junior, ought not to have been allowed ; but the fees for drawing and engrossing the cross-examination are properly chargeable against the complainant. The whole of that was useless and improper, but as it was the act of the complainant’s counsel, it is proper that he should pay the examiner’s fees of this extraordinary and vexatious cross-examination. • There is another objection to this item which ought to have been noticed by the taxing officer. The examiner’s bill has been taxed in gross at $158,25, without specifying for what services the charge is made. The 130th rule requires that the several items of the fees of each officer of the court be particularly detailed and not charged in gross. The object of this provision is that it may appear upon the face of every taxed bill that no officer has been allowed for any improper or illegal' charge. Bach item of the examiner’s, register’s and master’s bills should be set out at length, with the same particularity as those of the solicitor and counsel. Although the party at whose request each witness was sworn and examined, or each particular exhibit was certified and marked, may be' answerable to the examiner for his fees, it does not follow of course that it is taxable against the adverse party, unless it was necessary and .relevant. If the deposition of any witness is unnecessarily prolix or is irrelevant, the taxing officer is directed to disallow any charge therefor, even as between the solicior and •his own client.' ( R. S. 183, § 101.)

As the costs in this cause must be referred back to the master for a re-taxation, it is proper to suggest that he has allowed numerous items in this bill which ought not to have been taxed against the complainant, whether objected to or not. By one of the ■> provisions of that title of the revised statutes which relates to the taxation of costs, (2 R. S; 653, § 5,) it is made the duty of the taxing officer to examine the bills presented to him, whether the taxation be opposed or not, and to be satisfied that the items charged are correct and legal, and to strike out all charges for services which were .unnecessary, &c. Although this court will not as a matter of course allow an appeal from the decision of the taxing officer, where a party has neglected to appear or to make the objection before him, yet where a relaxation is ordered, if it appears on the face of the taxed bill that other improper items were allowed, the taxing officer may be directed to review his taxation as to those items, although not objected to ou the previous taxation.

If the defendant puts in an insufficient answer, which is excepted to on that ground, if the exceptions are submitted to, or allowed, he has no right to charge the complainant with the additional expense which has been produced by his neglect to put in a sufficient answer in the first instance. The draft and copies of so many additional folios as would have been necessary to render the first answer full and perfect, or as have been produced by subsequent amendments to the bill, are properly taxable. But the charges for perusing and amending, filing, swearing to the further answer and serving the same, and others of a similar description, which would not have been necessary if the first answer had been complete, cannot be taxed against the complainant. The petition for further time to consider the exceptions in this case, and the stipulation or submission to answer further, and several other charges of a similar nature, fall within the same rule. The master has allowed for a draft and three copies of the answers, &c. in addition to the engrossed copy to file; this is one copy more than is taxable by the settled practice of the court, and two more than is usually made. He has also allowed for two folios for the draft and copies of the affidavits of the truth of the answers, petitions, &c.; this is also improper. The jurat to the answer or petition, if properly drawn, cannot contain one folio, and ought not to be drawn in the shape of a separate affidavit. It is the mere certificate of the officer that the defendant or petitioner was sworn to the truth of the answer or petition. It should always be drawn up by the solicitor, in the form prescribed by the 18th rule, and estimated as part of the folio contained in the answer or petition. The charge for attendance before the master on the exceptions, which were finally décided against the defendant, and all other proceedings in relation thereto which were the necessary result of his imperfect answers, must be disallowed.

The rule as to costs of interlocutory proceedings, in relation to which no directions were given at the time, and which are to be allowed as costs, in the cause in favor of the party who obtains a decree for costs, is this: The party mating a successful motion, and which is not granted as a mere matter of favor or to relieve him from the consequences of his own default, is entitled to the costs of the motion; as costs in the cause; but the party opposing such a motion unsuccessfully is not entitled to the costs of opposing, as costs in the cause; and if a party makes a motion which fails, he is not entiled to his costs, but the party opposing , may have his costs as costs in the cause, unless a different direction is given at the time. (1 Sim. & Stu. Rep. 357:)

The master has allowed the defendant’s solicitor by the folio for drawing his bill of costs, amounting to $6,50. The whole of this charge is improper, as no such allowance is made by the fee bill. The solicitor’s fees in the Revised Statutes are taken from the act of April 21st, 1818, and the . provisions of that act were not intended to be altered by the revisors or the legislature. (Rev. notes to report of eh. 10, pt. 3, p. 31, 32.) It is well known that the fee bill of 1818 was prepared by the late Chancellor Kent, under a resolution of the assembly, with remarks explanatory of each item. The second clause of the present fee bill, which authorizes a charge by the "folio for drawing pleadings “and other proceedings in a cause,” was not intended to cover the draft of a bill of costs. The fee bill of 1813 had a special provision allowing for such draft by the folio, but it was intended to. be excluded by Chancellor Kent’s bill, although the second clause was retained as in the bill of 1813 and in that which is now in force. In his report to the assembly, (Journal of February 25, 1818, p. 335,) the late chancellor has appendéd this remark to the item for copies of the bill of costs: “ The allowance in this case is much diminished from the act of 1813, by totally omitting the following charge: ‘Drawing costs for taxation, for every ninety words, twenty cents.’ ” But it would have been increased instead of diminished if it could have been taxed under the second clause; because the allowance for drawing pleadings and other proceedings was raised to 25 cents in the bill as reported by him. The uniform construction of that fee bill by my predecessors has been against the right here claimed, and in accordance with the intention of the chancellor as expressed in his report. The same construction must therefore continue to be given by this court to like provisions in the Revised Statutes-The charge for drawing and filing a precipe is excluded by the Revised Statutes; (2 R. S. 651, § II;) and the allowance for interest on the examiner’s fees was illegal and improper.

Under the present law the taxed bills of costs are to be annexed and to constitute a part of the enrolment of the decree. They must therefore be carefully engrossed without erasures or interlineations, like other papers filed in the cause; and if they are not in that situation, or if any considerable deductions are allowed on taxation, they must be redrawn at the expense of the solicitors offering them for taxation, before the taxing officer certifies thereon the amount at which they are taxed.

The bill of costs in this case must be referred back to the master to be taxed on the principles above stated; rejecting the costs of the two special motions -where the late chancellor denied costs to either party. The bill must be re-drawn, so as to include the several items of fees due to the examiner in detail, together with the costs of opposing the application to file a bill of review, and the costs of the enrolment of ’ the decree of this court founded on the remittitur, and of the execution to carry the decree into effect; and excluding the items of the present bill which are declared to be improper. A copy of the bill as re-drawn, with the usual notice of taxation is to be served, and neither party is to have any costs on this application for a re-taxation.


source: Caselaw Access Project

author: The Chancellor.

license: Public Domain

text:
    The Mowhawk Bank vs. R. & P. Atwater.
    A creditor may file his bill to set aside a fraudulent conveyance of the real estate of his debtor as soon as he has obtained- a judgment, which is a lien on the land. • '
    A judgment continues to be a lien on real estate, after the expiration of the ten years, as against the defendant in the judgment or his grantee without valuable consideration, but not as against bona fide purchasers or incumbrancers. ,
    Where a debtor with an intention of defrauding his creditors executes a conveyance of his property without any valuable consideration being paid by - the grantee, the conveyance is void as against such creditors, although the voluntary grantee was not privy to the fraud.
    Where a party is examined as a witness between other parties in the suit, he is always examined subject to all just exceptions, and if he is interested, the objection may be taken at the hearing, although it has not been previously made.
    But in ordinary cases the objection to a witness must be made at the time of his examination, or before the closing of the proofs in the cause.
    It is the duty of the sheriff to sell lands in parcels where the property is so situated that it will probably produce more by that mode, of selling; or where a part onlyis required to satisfy the execution.
    But a sale of several parcels together does not render the sale void, but only voidable; and after a great lapse of time the sale will not be disturbed.
    February 16th.
    In May, 1816, Russell Atwater was the owner of the premises in question in this cause, together with a large tract of land in the county of St. Lawrence. By a deed of that date, in consideration of one dollar and the love and good will which he bore to his son Phineas, he conveyed to him the mill lot now in controversy with the buildings thereon. At the date of this conveyance R. Atwater was extensively indebted to the complainants and others, and as the event proved, was then insolvent, although he had at the time considerable property in his hands. On the 1st of July, 1816, the complainants obtained a judgment for their debt against R. Atwater, and in 1817 they issued an execution upon such judgment, by virtue of which, in March, 1818, the lands of R. Atwater in the county of St. Lawrence, including the mills and mill lot in controversy, were sold by the sheriff of that county and were purchased" in for the complainants by their cashier, to whom they were conveyed by such sheriff. A large balance still remains due upon the complainants’ execution, and the complainants have offered to both defendants to reconvey to them the whole property purchased at the sale upon receiving the amount of their debt and advances. The bill in this suit was filed in 1825 to set aside the conveyance of May, 1816, upon the ground of its being fraudulent and void, and in order to obtain possession of the mills and mill lot in question and for an account of the rents and profits thereof. Numerous witnesses were examined, and the cause was finally heard up.on the pleadings and proofs, at the last March term.

      A. Van Vechten fy A. C. Page, for complainants.
    The deed from the defendant Russell Atwater to the defendant? Phineas Atwater, was a voluntary conveyance and without consideration, and was therefore fraudulent and void as against the creditors of Russell Atwater, he being deeply involved in debt at the time of the execution of the deed. Being indebted beyond an ability to pay is conclusive evidence of fraud. A man in embarrassed circumstances cannot provide for his family at the expense of his creditors. A voluntary deed is void equally against subsequent as against prior creditors. (Jackson ex dem. Van Wyck, v. Seward, 5, Cowen’s R. 67, 72. Reade v. Livingston, 3 John. Ch. R. 481. 3 Cruise’s Dig. 374, tit. 32, ch. 22, § 26, 28. id. 377, tit. 32, ch. 22, § 32, 33. id. 385, tit. 32, ch. 22, § 51. Jackson v. Brush, 20 John. R. 5. Hildreth v. Sands, 2 John. Ch. R. 48. Verplank v. Sterry, 12 Johns. R. 552. Murray v Riggs, 15 Johns. R. 587. Anderson v. Roberts, 18 Johns. R. 526, per Spencer Ch. J.) Deeds executed with intent to defraud creditors, although made for a good and valuable consideration, are void. Actual fraud in giving a conveyance of real property may be inferred from circumstances. (3 Cruise, 372, tit. 32, ch. 22, § 19. 3 id. 394, tit. 32, ch. 22, § 63. Sands v. Hildreth, 14 John. R. 493. Wickham v. Miller, 12 John. R. 320. Jackson v. Myers, 18 John. R. 425. 3 Bac. Ab. 312, 314, title Fraud c. Jackson v. Terry, 13 John. R. 471. Hildreth v. Sands, 2 John. Ch. R. 35, 41.) The circumstances of this case shew, that the deed in question was given with intent to defraud creditors. To make a bona fide purchase, payment of the consideration money must be made out; it must be actually paid, and not merely secured to be Pa^ ’ f°r otherwise the purchaser could not be hurt. (Jackson v. Cadwell, 1 Cowen’s R. 641, 2. Jewett v. Palmer, 7 John. Ch. R. 65, 68. Hendricks v. Robinson, 2 John. Ch. R. 283.) The consideration expressed in the deed is one dollar and paternal love and affection. The defendants cannot now set up a different consideration; for the rule is well settled that parties are concluded from setting up a different consideration from the one expressed in the deed, except in the cases of fraud, mistake or surprise. (Botsford v. Burr, 2 John. Ch. R. 415.) Upon no other ground can a deed be contradicted by parol proof. The rule of evidence that parol proof is inadmissible to contradict or substantially vary the legal import of a written agreement, is the same in equity as at law. (Stevens v. Cooper, 1 John. Ch. R. 429.) Where the consideration is expressly stated in a deed, and it is not said, “ and also for other considerations, proof of any other consideration is inadmissible. (Maigley v. Haiver, 7 John. R. 341.) This doctrine was recognized by'Chancellor Kent, in Benedict v. Lynch, (1 John. Ch. R. 381.) In that case he cites the case of Peacock v. Monk, (1 Ves. sen. 127,) where Lord Hardwick held the same doctrine. It would seem then, .that if Phineas Atwater had paid a valuable consideration for the deed in question, it could not have availed him, as he is bound by the consideration expressed in the deed. The evidence produced to shew that the mill lot was excepted from the sale is altogether insufficient. The whole transaction between Russell and Phineas Atwater is stamped with fraud. In May, Russell Atwater was pressed to pay his debt to the complainants. In June thereafter, he gives this deed. He gives it too without consideration ; for it is evident that the mill was erected with his money; and the services of Phineas not only appear to have been rendered during his minority, but they also have been proved to have been of no value. Judgment creditors may always come into chancery to have a fraudulent incumbrance or conveyance removed. It is too late now to suppress D. Boyd’s testimony upon the ground of interest. The objection should have been made before the proofs were closm. Agents having an interest, are good witnesses in relation to matters connected with the agency. No objection or complaint was made at the time as to the mode, of sale. It is now too late to make such objection. It is not put in issue by the pleadings ; and the defendants having so long acquiesced in the sale, cannot now disturb it.

      D. Seldcn, for defendants.
    The witness D. Boyd was interested, being a stockholder in the Mohawk Bank. The complainants were bound to shew that his interest had ceased to exist or had been discharged. The deed to Phineas Atwater is valid and was given for a sufficient consideration. The consideration expressed was not intended to deceive any person. The transaction was not kept concealed, but was made as public as it well could be. Mills are so important to large tracts of land that it would advance the interest of a large land holder to grant a mill seat for no other consideration than that of having a mill erected upon his land. The services of Phineas Atwater were valuable to his father, and fully equal to the decreased value of the land at the time the deed was given. Where the contract is binding between the parties, and is sought to be impeached by proof aliunde, it may be supported by like proof. In all the cases cited on the other side, one of the parties to the deed sought himself to enforce it. (Botsford v. Burr, 2 John. Ch. R. 415. Green v. Weston, Sayre’s R. 209.) In a controversy between one of the parties and a stranger, either of them may enquire into the whole character of the instrument. (3 Starkie on Ev. 1051. King v. Inhabitants of Scammonden, 3 T. R. 474. King v. Inhabitants of Laindon, 8 id. 379. King v. Inhabitants of Shenfield, 14 East’s R. 544.) Grantees may always enquire into the true consideration of conveyances, when there is in fact some other consideration than the one expressed. A deed fraudulent in its inception may become valid by matter ex post facto. ( Verplanch v. Sterry, 12 John. R. 552.) Thus the services of Phineas Atwater and wife subsequent to the date of the deed may render it valid as the consideration thereof. (Murray v. Riggs, 15 John. R. 587, opinion of Thompson, Ch. J. The complainants. cannot,-enquire into the validity, of the deed to. Phineas Atwater, for they have , not’shewn, in their bill that their demand.is únsatisfied.. They cannot'succeed as purchasers, for they, never purchased the mill.. As judgment creditors, they have no title from which to remove a cloud. The sale' was void, the whole tract of land haying been sold . together and not in parcels. ( Woods v. Monell, 1 John. Ch. R. 502.) -If;there ,be doubts ■ whether any particular parcel' was sold, the court will'intend it was not sold. . ■.
   The Chancellor.

The main question in this cause is • whether the" deed of R, Atwater to his son is to be considered fraudulent1 and void-as against these complainants as judgment creditors. If it was void as against them, they had a right to file their bill to set",'it as.ide as''soon as they obtained a judgment, which wás á lien upon the - property, (Beck v. Burdett, 1 Paige’s R. 308.) The judgment, is still a lien ,up- ... -on the property' ap against'these defendants, although it would not' have beén against -a. bona fide purchaser, after the -expiration of the ten yéars. ," If the property was riot legally sold, the conveyance may still be set aside to enable" thé com-, plainants to go on and self it for the satisfaction of the residue "' qf their debt, but if it was legally sold, they will.be entitled ' - to a decree for the - immediate possession óf the premises ■' -and .for an account of the rents and profits, -as well as to a decree- setting aside the fraudulent conveyance. I shall therefore first consider whether the .deed was void as against ■ the complainants.. , ,

Previous to the" decision of the.court of errors, in Seward . v. Jackson, ( 8 Cowen’s R. 406,)-this court had decided that a ' voluntary conveyance was void as against- creditors who,had pre-existing débts. ( Read v. Livingston, 3 John. Ch. R. 481. Bayard v. Hoffman, 4 id. 450.) The -principle of these cases was- adopted" by the supreme court- in the case of Jackson v. Seward, (5 Cowen’s R. 67,) and by the supreme, court of the United States in Sexton v. Wheaton and wife, (8 Wheaton, 229.) But since the decision of Seward v. Jackson, the correctness of the former decisions is left in great dqubt, if they have not peen wholly overturned. From the conflicting opinions of va-. -rious members of. the court, it is impossible,to say upon what principle the majority of those voted who were in favor of the reversal of the judgment of the supreme court; but if they adopted the opinion of Spencer and Allen, senators, a voluntary conveyance is not void even as against antecedent creditors. It is only prima facie fraudulent as against them ; and it is doubtful whether the revised statutes have not gone still farther, and thrown the onus probandi, in all cases, upon the creditor who attempts to impeach a voluntary conveyance as fraudulent. (2 R. S. 137, § 4, and revisors’ note.) This statute however cannot affect the decision of this court upon a case which had previously arisen.

From the testimony, I am satisfied that this conveyance was fraudulent in fact as against the creditors of the father. At the time of the conveyance, the grantor was indebted to various individuals in a sum exceeding fifty thousand dollars, most of which was then due. His property, to a great extent, was in wild lands, which could not be converted into money in time to meet the demands of his creditors, even if it should ultimately prove sufficient. In this situation, and a few weeks before he confessed the judgment to the complainants, and when they were undoubtedly pressing him for payment, he conveyed this mill scite, on which he had already contracted to build an extensive establishment. Independent of the deed’s purporting on its face to be a voluntary gift to the son, the weight of evidence is that no real consideration passed between him and the father. The defendants do not allege in their answer that the son had performed services, after he became of age, which constituted any part of the consideration of the conveyance. It is also evident from the testimony that a great portion if not all of the funds which were afterwards expended in making the erections on the premises were the proceeds of the father’s property, which ought to have been devoted to the payment of his honest creditors. It is of no consequence in this suit whether the son knew the extent of his father’s indebtedness or not. If the father committed a fraud upon his creditors by giving away property which should have been reserved for them, the grantee without valuable consideration cannot be protected, although he was not privy to the fraud. The deed of 1810 must therefore be declared fraudulent and void as against the complainants, and all persons claiming as purchasers of thé premised under their judgment against Russell Atwater; and the defendant Phineas Atwater must release to the complainants all jnteregt jn premises derived by him under that deed. The next question is whether there was a Valid sale of this property under the judgment, so. as to entitle the complainants to the ^possession of the premises without the expense'. ■ and delay .of a new sale by the sheriff. On this question, the evidence of David Boyd is material; and it maybe necessary to • consider an objection made to his testimony on the hearing. v .

It is alleged that he was a stockholder in .the bank at the time he gave his testimony, and was therefore an incompetent witness for the complainants. If this were true in point of fact, and the objection had been made in time, his testimony must have beeti excluded.' A stockholder in a monied corporation Cannot be a witness in its favor, where the result of the suit will be to increase or diminish, the funds of , the institution. The witnesses. were examined on written 'interrogatories. No objection was made to the competency . of David Boyd as a witness during his examination, or at any , timé- before the prbofs in the cause1 were finally closed. He was-examined as a witness in July, 18281. Several weeks ¡ ' after his testimony was clo.sed, Jo.hn-Boyd, the, father in law. . . of one of the defendants, in. answer to the last and general interrogatory, stated - among other things.that about the time of the salé he understood from D. Boyd that he was a stock-, holder in the bank. . Under the circumstances-, the objection should have been, made before the proofs in the cause were closed, so that the Complainants might have introduced witnesses .to disprove the. ■ allegation of interest, or have released and re-examined the witness. If Boyd was-a stockholder in 1818, it does not follow that he was in 1828. The presumption of a, continuance of his interest to that time would be very slight. - . _ ■

Where a party is examined as a witness as between other parties in the suit, he is always examined subject, to, all just 'exceptions; and only as to those matters in -which he ■ has no interest In such a ca'se it. is not, too late to make .the ób-. jection to his testimony at the hearing. In other cases the objection must be made at the time of his examination, or at least before the proofs in the cause are closed.

There is certainly much contradiction in the testimony, as to what was actually sold by the sheriff; but I think the weight of evidence is, that the- lot which included the mills? &c. was sold, without any reservation of this part thereof. If this matter is left doubtful by the parol proof, the sheriff’s deed is very strong evidence in favor of the complainants on that point, and must settle the question in their favor. It would be going too far to say the sheriffs deed must be conclusive ; but after such a lapse of time, the deed of the sheriff given immediately after the sale, and when he was acting under his oath of office, ought not to be set aside except on the most conclusive evidence of fraud or mistake in the description of the property.

The defendant’s fifth point is, that the property of Russel Atwater was sold together, and not in separate parcels. It is undoubtedly the duty of the sheriff to sell in parcels when, ever the property is so situated that it will probably produce more by that mode of selling, or where a part only of the property is required to satisfy the execution. In this case a large tract was sold together; but it was encumbered by heavy mortgages, and the whole tract would not have been sufficient to satisfy the execution by any mode of selling. In the peculiar situation of this property it is impossible to say whether the sheriff adopted the proper mode to make it produce the best price. A sale thus made is not void; it is at most voidable; and after such a lapse of time, great injustice might be done by vacating the same.

But in this case another objection exists to this defence. There is nothing said in the bill as to the manner of selling the property, and no objection is made in the answer that it was sold together and not in parcels. The whole of the defendant’s testimony on that subject is therefore on a point not in issue by the pleadings, and no decree can be founded thereon. If this defence had been set up in the answer, the complainants would have been apprised of the necessity of showing by the testimony of witnesses acquainted with the property and the incumbrances thereon, that the mode of selling adopted by the sheriff was that which was most beneficial for all concerned.

The defendants must therefore deliver up the possession of the premises to the complainants, on production of a copy of the decree in this case ; and there must be a reference to a master residing in the county of St. Lawrence to take an account of the rents and profits of the premises received by P. Atwater, or which he might have received by reaso nable diligence while he has been in possession thereof. And on the coming in and, confirmation of the master’s report, the complainants are to have execution against the defendant P. At-water for the amount reported due, and against both defendants for the costs of this suit to be taxed.


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    Graves vs. Graves.
    In a suit against the husband for a divorce, if he suffers the bill to be taken as confessed and a divorce is granted, costs follow of course.
    ■ The wife is also entitled to alimony if her circumstances render such an allowance either necessary or proper.
    The reference to the master , to ascertain the truth of the facts charged in the bill is to satisfy the court, and to prevent collusion between the parties ; and the husband cannot set up any matter, in opposition to the wife’s claim for costs or alimony, which if set up by an answer would have been a sufficient , ground for refusing a divorce. ■ .
    Where the wife obtains a divorce upon the ground of adultery, a reasonable counsel fee may be allowed and taxed against the husband.
    -March 2d.
    The complainant filed a bill in this case to obtain a divorce upon the ground of the adultery of her husband. He suffered the bill to be taken as confessed. On a reference to a master the facts charged in the bill were fully established. Upon the coming in of the master’s report.

      J. L. Mason, for the complainant,
    moved for a divorce and for costs. He also claimed alimony for the complainant, and applied for an allowance, to discharge her reasonable counsel fees and for the support and maintenance of the children of the marriage.

      W. Talmage, for the defendant,
    admitted that the complainant was entitled to a decree for a divorce1; but he contended that there was not sufficient evidence in the case to entitle her to costs, or to an allowance for alimony.
   The Chancellor.

By suffering the bill to be taken as confessed, the defendant admits he has been guilty of the adultery charged, and under such circumstances as to entititle the complainant to a divorce. He cannot afterwards set up any matter in opposition to her claim for costs, or for alimony, which if true would have been a sufficient ground for refusing the divorce. If any such matter existed, the defendant should have put in an answer, insisting thereon as a bar to the suit. The reference to a master is to satisfy the court that a divorce ought to be granted, and to prevent collusion between the parties. If the complainant is entitled to a divorce on the ground of the adultery, costs follow of course. If the wife is complainant, the husband who has been guilty of adultery cannot be excused from contributing to the support of the children of the marriage, or from an allowance by way of alimony to the wife, if her circumstances render such an allowance necessary or proper. There must be a decree in this case dissolving the marriage contract, and the usual clause must be inserted in every case of this kind, prohibiting the defendant from marrying during the life time of the complainant. Although the defendant would be punishable for felony if he married again, yet this clause is necessary in order to prevent him from imposing upon others, who might suppose he was capable of contracting matrimony if the decree was general.

The defendant must pay to the complainant or to her solicitor the costs of this suit to be taxed, including reasonable counsel fees to be settled and included in the same bill by the taxing officer.

It must be referred to the master who made the report as to the matters stated in the complainant’s bill, to ascertain and report which of the parties ought to have the care and custody of the children of the marriage; and if he shall award the custody of them or either of them to the wife, that he also report what sums the defendant should pay to the complainant for their maintenance, and when and in what manner. And the master must also ascertain and report whether any and what allowance should be made to the complainant for her own support, and when and how the same ought to be payable; and what security should be given by the defendant for the payment of such sums as shall be fixed by the master for the maintenance of the children, or for the support of the complainant. And all further questions and directions are to be reserved until the coming in of that report.


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    In the matter of Thomas Browning.
    A purchaser at a master’s saléis bound to complete the purchase, where the vendor shews a prima facie title, against which there are no reasonable grounds of suspicion.
    If it appears that any person is making a claim adverse to the title of the vendor, or that there are probable grounds for supposing such a claim Will he made, the court will direct the testimony of the witnesses to be per petuated.
    March, 2d.
    Catharine Kohler, the special guardian of the infant children of Charles Kohler deceased, under an order of this court, sold to Browning a piece of land at Bushwick, containing about .two acres; and the sale having been reported to the Chancellor, he confirmed the report, and directed a conveyance to be made to the purchaser. Browning then presented his petition, setting forth the proceedings and sale ; that the property was sold at auction, and that a good title was to be given. He further set forth in his petition that he had paid the purchase money to the auctioneers, to be held by him until the title should be made satisfactory ; that the deed had been executed in pursuance of the order of the court and placed in the hands of the petitioner’s counsel for the purpose of an examination of the title ; that the money had been paid over to the guardian upon an agreement to be refunded in case the title should prove to be defective. The petitioner further stated that his counsel had advised him the title was de- ' ■ fectiv'e, and he therefore prayed, that tibié purchase money might be refunded to him, together with the interest thereon and the costs. A reference was made to a master to ascertain and report whether the title of the infants was good, and such as the petitioner ought to take under the sale. The toaster, reported that the title was not valid, nor such as the petitioner ought to accept. From this decision of the master the guardian appealed to the court.

      D. B. Tallmadge, for the infants.

      Elijah Paine, for the petitioner.
   The Chancellor.

No person makes any claim to this ’ property in opposition to the infants ; and the only question is , what evidence qf title a purchaser under an order of sale has a right to require." The abstract of title furnished by the guardian extends back nearly forty years, and no one has , .claimed the land in opposition to this chain of title during the whole of that time. Even without the admission of the petitioner’s counsel, I think at this time it must be considered that a valid title passed to J. Williams under the deed of March, .1791, which is on record. In 1797, Williams conveyed the premises to F. Vandervoort, and this conveyance.is also recorded. Vandervoort conveyed, to W. Dougherty about the year 1804. Dougherty is dead, and his deed is not produ- , ced. ’ But Vandervoort, the grantor, was examined before ' the master, and swore that he sold and conveyed the land to Dougherty, for the consideration of £28, with warranty; that Dougherty went into possession and built a house thereon. Dougherty lived on the premises until 1807, when hé sold to . N. Williamson, who is also dead, The1 deed from Dougherty to Williamson is not, produced; but Vanderveer swears that Dougherty told him he had sold the land to Williamson. He also swears that afterwards, when he drew the deed from Williamson to Gosline, he had á deed before him from which he copied the boundaries, and which hé believes was the deed from. Dougherty to Williamson. In 1811, Williamson and wife conveyed to W. Gosline, which deed is duly acknowledged. Gosline conveyed to W. Smith in 1816, and the latter conveyed to the father of the infants in 1818; and upon death the title came to them by descent.' Both of these deeds are also duly acknowledged. The master has decided that the infants had nót á valid title to the lands in question, but upon what ground the decision is founded is not stated in the report. I presume it is because the deeds from Vandervoort to Dougherty, and from the latter to Williamson, were not produced before him. When those deeds were given, there was no lawrequiring them to be recorded ; and it was not, the practice at that time to put deeds on record, except in recording counties. The removal and death of the grantees sufficiently accounts for their non:production; and it does not appear that any objection was .made oh the ground that the proper places had not been .searched. • As ■ Williamson conveyed with warranty, it would be natural that, he should keep the deeds on which his title depended, instead of handing them over to the grantee; In deciding upon the question of the validity of title, it is always proper to take into consideration the custom of the country at the time the conveyances were made. Since the recording acts ¡were passed, it would be a circumstance of suspicion that no conveyance was found on record ; and to protect the purchaser, the vendor would be bound to have all the deeds- recorded which were necessary to the validity of the title. But where it is not necessary to have the deeds recorded, it is sufficient, for the vendor to shew a prima facie title, against which there are no reasonable grounds of suspicion; leaving the purchaser to establish such title by the ordinary proof, if it ever should be contested. If it appeared that any person was making an adverse claim, or there was any reason to suppose that such a claim would be made,, the court might direct the testimony of the witnesses to be perpetuated. But it would be a useless expense, and it is unreasonable „ to ask it. in a case like the present. Such a thing could never have been thought of by either party at the sale. The title to the property is not only valid but unsuspected. If no deed was ever given to Williamson, it, is now nearly twenty five years since he went into possession .of the land claiming it as his own. The master’s report must be overruled; but as there was originally some color for objecting to the title, before the explanatory evidence was inirodüced, I shall not charge the petitioner with costs.


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    Whitmarsh vs. Campbell and others.
    A bill Cannot be amended by inserting therein facts, known to the complainant at the time of filing the bill, unless some excuse is given for the omission. 1 1
    Marchad,
    The bill in this cause was filed in July, 1829, by a judgment creditor of Vanden. Heuvel against the latter and against Campbell and Morris, to reach certain property which it was alleged the two last named defendants held in trust for Vanden Heuvel. Campbell and Morris put in their answer setting forth, among other things, that previous to the commencement of this suit Vanden Heuvel had been proceeded against as an absent debtor; that the complainant’s solicitor together with two other persons were appointed trustees of his estate under the act, in April, 1829, and took upon themselves the trust; and that the proceedings and appointment of trustees remained in full force. The complainant now moved, for leave to amend his bill by stating therein these facts, and making the trustees parties defendants.

      Ira Clizbe, for complainant.

      J. Hoyt, for Campbell and Morris.
   The Chancellor.

The application to amend must be refused. The complainant does not pretend that he was ignorant of the matters now sought to be inserted in the bill when he commenced this suit, and no excuse is given for not inserting them at that time. His solicitor was one of the trustees appointed under the act, and took the oath of office as such trustee. The same facts were stated in the answer, and urged as an. objection to the suit six months since; and no excuse is made for not applying to amend the bill at that time. The'rule as to amendments of injunction bills was laid down .by the court in Rogers v. Rogers, (I Paige’s R. 424,) and .must be adhered to- • -

But these amendments must also be refused on the merits-If they had been stated 'in the . bill originally,1 it would have appeared that the complainant was not the proper party to, bring' the'suit,'.arid the injunction would.hot have been grant* ed. And if they are now introduced, the bill must be. dismissed as against Campbell and Morris.on the hearing. After their, appointment, and trustees, under the act became .entitled to all the legal and equitable, estate of Vanden Heuvel; and if Campbell and Morris have any property of his , which either at law or in' equity ought to be applied to the'' payment of his debts', the trustees áre the; proper persons, to bring the suit, for the. benefit of the creditors generally. 'If •there was "any collusion between the defendants and the trustees, the creditors might file a bill against both ; or one creditor might sue in behalf of himself and all others .who should elect, to come in under the decree. ¡But" as the trusteés act Under oath, collusion between them and the defendants, ,or a wilful neglect of their duty, will not be presumed, when no intimation of the kind is contained in the affidavit on which this amendment is asked. The motion must therefore be denied ■„ with costs. ' ,.. i■1


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    Astor vs. Miller and others.
    Where either "real or personal estate upon which there is an outstanding mortgage, is turned into money, the rights of' the mortgagee continue unaltered, and the court will direct -the application of the money according to the rights of the parties as they existed previous to the alteration of the estate,
    A mortgagee of leasehold premises who has never been in possession, or in the1 receipt, of the profits of the estate, is not liable to an action upon the ‘ 'Covenants contained in the-lease, as the assignee thereof.
    A mortgagee out' of possession has both at law and equity only a chattel in- 1 terest in the, mortgaged premises; and the mortgagor, for every- substantial purpose, is the real owner. ,
    Where a covenant" was contained in a lease, on the part of the lessee, to pay all taxes and assessments which.might be imposed on the premises by authdiity derived from the United States, the state of New-York, or from the corporation of the city of New-York, and an•. improvement was made by the corporation of New-York in the opening of. La' Fayette Place, which took a part of the leasehold premises, it was held that the lessee was chargeable With the amount of the assessment upon the interest of the lessor in the premises.
    "Where a covenant running with the land is devisable in its nature, if the entire interest in different parcels ,of the land passes by assignment to separate individuals, the covenant will attach, upon each parcel pro tanto.
    .And the assignee of each part will be answerable for his proportion of any charge upon the land which was a common burden upon the Whole, and will be exclusively liable for the breach of any covenant which related to that part alone.
    The complainant, in 1821, leased Yauxhall Garden in the city of New-York, to Timothy Madden for the term of fourteen yearsYrom the .first of May 1825, át a yearly rent of $750. The lease contained the usual covenant for the payment of the rent; and also a covenant that the lessee and his assigns would pay and discharge all such taxes and assessments as might be imposed or rated on the premises or any part thereof, by authority derived from the people of the state of New-York, or of the United States, or from the corporation of the city" of New-York. The lease also contained a clause of re-entry in case of the non-payment of the rent, or of the non-performance of the other covenants in the lease. In October, 1825, commissioners of estimate and assessment were appointed by the supreme; court, on the application of . the corporation of New-York, for the opening of La Fayette Place. In April, 1826, the commissioners reported, among other things, that part of ■ Vauxhall Garden was required for the opening of La Fayette Place; that Astor was the owner in fee of the part required for that purpose, as well as of the rest of the premises; and that Madden was the owner of a leasehold interest therein. And the commissioners assessed the benefit of Astor as owner óf the residue of the premises, over and above his damages from the loss of the part taken, at $4447. They also assessed the damage to the leasehold interest of Madden in the part taken at $5700, over and above the benefit to the premises which were left; . This report of the commissioners were duly confirmed by the supreme court.. In June, 1826, Astor filed his bill in this cause against Madden and the corporation, claiming payment of .the amount assessed on his .interest in the property out of ,the amount allowed to Madden for his damages for the part taken. An injunction was granted; and afterwards, under an order of the .chancellor, the amount assessed on the property of Astor was paid into court by the corporation. The residue of • the damages awarded-to Madden, after deducting the costs of, , the corporation, was paid to him.' Madden died before - an-' - swer, and the suit was revived against his administrator. The corporation and the administrator.of Madden put in their-answer tó the bill, submitting the claim of Astor .to the decision^ the court. The cause was-heard bn bill and answer, ; and upon" the, petition" of certain creditors 'of Madden. In April, 1828, the-late -Chancellor Jones made a decree, by which it was declared that the assessment of $4447 upon Astor’s interest in the premises was chargeable on the lessee, by virtue of the covenants in the lease, and that the estate, of-.Madden was liable for the payment thereof; but that there was nothing in the pleadings which showed that Astor had any 'specific lien, upon the amount awarded to gladden, to the' exclusion .'of other creditors-of the latter. The chancellor . therefore directed a reference to a master to take an account of the sums due to the complainant and to the other credit- ' ors of Madden, and also of the estate of the intestate. He also- directed that the amount due to Astor for the assess- . inent be .paid in a due course of administration; that he be at liberty, to. insist before., the master, upon a right of priority in payment.; and if he should establish such right by legal proof, on such reference, that the. master report the facts to the court, with the reasons and grounds of his decision. Upon the reference before master Hoffman it appeared that in August, 1824, Madden mortgaged his interest in the lease of Yauxhall Garden to the Mechanics’ Insurance Company and • Moses, Hoyt, for $3469 19 and interest; that by virtue of. this mortgage they claimed a specific lien upon the fund in court, and a preference in payment oyer other creditors. It also appeared before the m.aster that in October, 1826, the sheriff of New-York sold to Mrs. Ehrick, under a judgment recovered subsequent to the mortgage, all the interest of Madden in the' leasehold premises; that in February, 1828, Mrs. Ehrick conveyed her interest in the premises which remained after the opening of La Fayette Place to Alexander Diver, for the consideration of $523,55; and that on the same day the mortgagees, in consideration of one dollar, also released to him all their interest in that part of the premises. It also appeared that in September, 1828, Diver . conveyed the said. premises to Joseph Hunt; and that in October of the same year Hunt conveyed the same to the complainant. The master, upon these facts, reported that -the complaidant had a right of preference or priority of payment for the amount of his assessment, out of the fund now ’ in court arising from the damages awarded to Madden by the commissioners of estimate and assessment. The master also accompanied his report by a statement of the grounds and reasons of his opinion, as directed in the order of reference. To this decision and report of the master the mort- ‘ gagees excepted.

      D. B. Ogden, for complainant.
    The complainant is entitled to have the monies in court awarded to Madden for his damages applied to the payment of the sum assessed upon his (the complainant’s) interest in the premise's, for the opening of Lá Fayette Place. The complainant possesses a right of priority of payment out of this fund over every other creditor. His claim is paramount to that of the Mechanics’ Fire Insurance Company and Moses Hoyt under the mortgage given by Madden upon the demised premises. The decretal order of Chancellor Jones decides that Madden, by virtue of the covenants in the lease from the complainant, was bound to pay the assessment against the complainant; but the chancellor did not decide as to the priority of the complainant’s claim upon this fund. If it had been so decided, the reference up- , on this point to the master would have been unnecessary. The original lease contains a clause of re-entry for the nonperformance of any of the covenants therein. The moment therefore Madden neglected or refused to pay the amount of the assessment, his term ceased and the complainant became entitled to the whole benefit of the lease and to the sum awarded by, the commissioners to Madden, to which Madden was only entitled by virtue „of his leasehold interest in the premises. The present claimants of this fund had notice that it had been awarded, to Madden, and they took no steps to secure-their claitas during his life. , The Mechanics’ Fire Insurance Company, as assignees of the lease, are liable to , the covenants óf the lessee. The authorities in support of this doctrine are citéd in the report of the master. Any person taking "an assignment of a lease, takes it with full notice of the covenants contained in it, and,-Voluntarily submits to be bound by them. He takes it cumonere. An assignment by way of mortgage has the same operation.as an absolute assignment.-- It is an assignment of the legal estate and must be accompanied by ail the consequences' of the ownership of such estate. Until the money is paid, the assignment" is absolute. And the claim made under it at this time is. upon "the ground of the possession of the legal estate, which, is equivalent to a possession of the premises, And the "mortgagees, have shown an act of possession of the premises on their part, by selling the same during the whole óf the unexpired term of the lease. The monies awarded to Madden arise E "out of his interest in this estate under the léase from the complainant. Equity requires that he should not acquire a ben'efit under such lease to -the injury of-his landlord, by a breach, of his covenants contained in thq lqase. - , ' ; -

      P. A. Gowdry I). T. Blake, for Moses Hoyt and The, Mechanics’ Fire Insurance- Company.
    The mortgagees of Madden had a specific lien upon the estate of the lessee, and they are now entitled, to a priority of payment out of. the • fund in consequence of such lien. The complainant, - by not paying the assessment, but suffering his estate in the leasehold premises" to be sold for" eleven years, has lost his claim upon his covenant. - The liability of thedesseé to the-complainant rested in action merely, - and the demand can only be on a par with" other debts by specialty, while the mortgagee held a specific lien upon the estate of the lessee. If Madden had been alive at the time of,-the decree of the , late chancellor'^ it is evident that the fund now in court would have been ordered to be paid to him. If the mortgagee had applied to intercept this money, it is clear that as it was the proceeds of the estate mortgaged, it would, under the authority of the case of Belcher v. Butler, (1 Eden’s Rep. 523,) have been directed to be paid to the mortgagee. A mortgagee of a leasehold estate not in possession is not liable upon the covenants in the lease. At common law it was formerly held that a mortgagee was seised of the legal estate, and after the estate became absolute by the non-performance of the condition, was liable to all the charges upon the mortgagor. (1 Powell on Mort. 6, 108. Plaintiff’s counsel arguendo in Eaton v. Jaques, Doug. 442.) It is upon this obsolete doctrine that the decisions have been based, which made the mortgagee of a lease liable to the covenants contained therein. In the case of Eaton v. Jaques, (Doug. 438,) it was held that the mortgagee of a lease, if not in posses sion, should not be held liable upon the covenants contained in the lease. This doctrine is confirmed in the case of Walker v. Reeves, (cited in a note to Douglas, 444,) and in the case of Chinnery v. Blackburne, (cited in a note to 1 H. Black. 117,) and in Jackson v. Vernon, (1 H. Black. R. 114.) The doctrine laid down in the case of Eaton v. Jaques is recognized in 2 Cruis. Dig. 114, tit. 15, ch. 2, sect. 14, and in 3 Comyn’s Dig. tit. Cov. ch. 3, p. 273. All the cases which seem to hold a different doctrine, proceeded upon the ground that the mortgagee held the legal estate. (Stone v. Evans, Woodfall’s tenant Law, 113. Lucas v. Comerford, 1 Ves. jun. 235, Williams v. Bosanquet, 1 Brod. & Bing. 238. 3 J. B. Moore, 100.) But our courts hold that a mortgage is a mere security for money; that it does not pass the legal estate; and that the mortgagor is seised of the same. (Green v. Hart, 1 John. R. 591. Jackson v. Willard, 4 id. 42. Hitchcock v. Harrington, 6 id. 294. Sedgwick v. Hollenback, 7 id. 376. Bunyan v. Mersereau, 11 id. 538. Wilson v. Troup, 2 Cowen’s Rep. 231.) And the doctrine in the case of Eaton v. Jaques has been expressly recognized in McIntyre v. Scott, (8 John. 162.) The mortgagee in this case cannot be considered, in possession so as to become liable to the covenants in the lease. And the possession of the money would not impose the same obligations as would the possession of the leasehold premises themselves. But if the mortgagee had taken possession of that part of the demised premises taken for La Fayette Place, he would not have been liable to the full amount of the covenants in the lease, but only to such portion of liability as attached upon his possession. (Comyn’s Dig. tit. Covenant, ch. 3, p. 272. Stevenson v. Lambard, 2 East, 576. Congham v. King, Cro. Car. 221.) Nor would the mortgagee, although he should be considered in possession of the leasehold estate, be liable upon the covenant to pay the assessment in question, as this assessment was imposed, and the covenant broken long before the assignment of the lease. If covenants are broken before the assignment, the assignee is not liable. (Bul. N. P. 159, Boulton v. Carron, I Freem. 336. Grescot v. Green, 1 Salk. 199. Church-wardens of St. Saviour's Southwork v. Smith, 3 Burr. 1271, S. C. 1 W. Black. 351. Taylor v. Shum and others, 1 B. & P. 23. 1 Fonbl. ch. 5, sec. 6, note (g), p. 359.) The complainant having accepted an assignment of the lease, the same has become merged in the fee and the covenants have thereby become extinguished. (Webb v. Russell, 3 D. & E. 393. Shep. Touch, ch. 7, p. 160.)
   The Chancellor.

The decree of the late chancellor decides two questions which were not ¡intended to be subject to the re-examination of the master on the reference; and that decision cannot be reviewed here on the exception to the master’s report. In the first place it is declared and decreed that Madden the intestate, by the covenants in the lease, was bound to pay the amount assessed upon Astor’s interest in that part of the premises which had not been taken for opening La Fayette Place ; and that the estate of the intestate was chargeable with the amount of that assessment, to be paid in a due couse of administration. Secondly, it was declared and adjudged that the facts set forth in the bill and answers did not give the complainant any specific lien on the fund in the hands of the corporation, and which had been awarded to the lessee for his damages. If either party was dissatisfied with the decree as to one or the other of these two particulars, the proper remedy was by an appeal from the decision of the court, or an application for a rehearing. The master is under a misapprehension in supposing the chancellor intended to refer it to him to review his decision on the last question, or to re-examine it himself on the coming in of the report. The claims of the different creditors of Madden, and their respective rights of priority of payment out of this fund, did not appear in the bill and answer. The chancellor anticipated that a different case might be presented as to the claims to priority between the complainant and other creditors of Madden, when their respective rights were proved before the master. The complainant was therefore permitted, notwithstanding this decision upon the facts stated in the pleadings, to insist upon and endeavor to establish by proof other facts which might entitle him to a priority in payment. The question now is, whether the new facts proved before the master give the complainant a right of preference which he was not entitled to on the facts stated in the pleadings-

Before proceeding to the examination of this question I will briefly notice an objection made by the counsel for the mortgagees of the premises. This objection is founded upon a fact which occurred since the making of the decree by the late chancellor. It appears that Astor has neglected to pay the $4447 assessed on his interest in the premises which remain, and has suffered that part of the property to be sold, for eleven years, to pay the amount. If the sum assessed on Astor’s property had been raised by a sale of property belonging to Madden or to his estate, the claim of the complainant would have been extinguished. But I cannot see how a sale of the complainant’s own property for that purpose could change the rights of the parties. He had his election to pay the money, or to permit his property to be sold to satisfy the assessment; and it can make no difference to the other creditors whether he paid it in the one way or the other.

The mortgage to The Mechanic’s Insurance Company and Moses Hoyt did not appear in the pleadings, and is one of the new matters produced.in evidence before the master This mortgage was given by Madden upon the whole of the leasehold premises before any part was taken for the opening of La Fayette Place. It was therefore a specific lien upon Madden’s interest in the part taken for that purpose. The damages awarded. to Madden in lieu of that interest became a substitute therefor; and .upon the principles of equity, the mortgage then became a specific lien upon the fund, instead of his interest in that part of the land. The rights of mortgagees are not altered by turning the estate into money ; for the court directs the money to be applied according to the rights of redemption. (Belcher v. Butler, 1 Eden’s R. 530.) The fund in court therefore belongs to the mortgagees, unless the plaintiff is entitled to it through them, by virtue of the covenants in the' lease, they being considered as the assignees of the leasehold premises.

Whether a mortgagee of leasehold premises who has never been in possession, or in the receipt of the profits of the estate, can be sued on the covenants contained in the lease as the assignee of the lessee, has for a long time been a disputed question. In Sparkes v. Smith, (2 Vern. 275,) a bill was filed by the lessor to compel the mortgagee of a term to discover whether the lease was not assigned to him. The defendant insisted that he was never in possession of the premises, or in the receipt of the rents. The court said it was the mortgagee’s own folly to take an assignment of the whole term by way of mortgage, and thereby subject himself to the covenants as assignee of the lease. But as he was only a mortgagee and had never been in possession, they would not assist the complainant to charge the defendant; but left the former to his remedy at law. In the subsequent case of Pilkington v. Shaller & Jefferies, (2 Vern. 374,) where a recovery at law had been obtained against a mortgagee under similar circumstances, the court of chancery refused to interfere for her relief. In the case of Eaton v. Jaques, (Doug. 438,) which came before the king’s bench eighty years afterwards, the judges of that court unanimously decided that the mortgagee, under such circumstances, was not answerable upon the covenants in the lease. Powell supposes the case of Lucas v. Comerford, (1 Ves. Jun. 235,) decided by Lord Thurlow in 1790, to be directly in opposition to the decision of the king’s bench in Eaton v. Jaques which had been made ten years previous to that time. (Powell on Mortgages, 241.) But upon examination of that case I see nothing inconsistent with the decision of the court of king’s bench in the casé reported by Douglas. It appears to be settled in England that a mortgagee, in possession, is liable on the covenants in the lease to the mortgagor. • (Traherne v. Sadlier, 5 Brown’s Parl. Cases, 179.) And Lord Thurlow only extended this principle to an equitable mortgagee in possession of a leasehold estate. It does not appear from the report of the case in Tesey, that the mortgagee was in possession, but it is more fully reported by Brown, where that fact distincly appears. (3 Brown’s Ch. R. 166.) A case is mentioned by Woodfall of Stone v. Evans, decided by Lord Kenyon in 1799, in which he is said to have overruled the decision in Eaton v. Jaques. (Woodf. L. & T. ch. 3, § 18.) I should infer from the language attributed to him in Wood-fall’s note of that case, that the mortgagee had once been in the actual possession of the premises under the mortgage. But in a still later case, (Williams v. Rosanquet, East, term, 1819,1 Brod. & Bing. 72,) which was argued before ten of the English judges, although the decision in Eaton v. Jaques was considered law by some, a great majority of them were of opinion that it had not been rightly decided. It may therefore be considered as now settled in England, that a mortgagee of leasehold premises is liable to an action on the covenants in the lease, although he has never been in possesssion of the estate, or received any benefit therefrom.

But I apprehend such a principle cannot be sustained here. In the English courts of common law, the mortgagee is still considered as the owner of the estate, and the mortgagor only as his tenant. (Patridge v. Bere, 1 Dow. & Ry. 272.) In this state, the mortgagee out of possession is considered at law, as well as in equity, as having nothing but a chattel interest in the estate; and the mortgagor, for every substantial purpose, is the real owner. (2 John. Dig. tit. Mortgage 111.) 'The master seems to' have come to the same conclusion; but he supposes that by taking the money awarded to the mortgagor for damages,, the mortgagees are to be considered in equity as having taken possession.of the estate, and thus subjected themselves to the burthen of performing the covenants in the léase. As the court considers a fund arising from a sale of the estate as a substitute for the estate itself, and suffers the mortgage to attach on ..it as such, the conclusion of the master may be correct in principle ; but it is erroneous in its application to the peculiar circumstances of this case. In the view of the case which the master took, the mortgagees could only be considered as assignees of that part of the leasehold premises which was taken for La Fayette Place. The residue was sold under the judgment against Madden, and bid in by Mrs. Ehrick. She conveyed the same to Diver, and the mortgagees released to him all their claim thereon, for á nominal consideration. It was therefore discharged from the operation of the mortgage, and has since been .transferred to the complainant Where a covenant which runs with the land is divisible in its nature, if the entire interest in different parts or parcels of the land passes "by assignment to separate and distinct individuals, the covenant will attach upon each parcel pro tanto. (Touchstone, 199. Co. Litt. 385 a. Van Horne v. Crain, 1 Paige’s R. 455.) In. such a case, the assignee of each part would be answerable for his proportion of any charge upon the' land which was a common burden, and would be exclusively liable for the breach of any covenant which related to that part alone. Under such a lease as was given by the complainant in this case, if one half of the lease-. hold premises had been assigned by the lessee to A, and the - residue to B, each would have been answerable for the taxes and assessments imposed upon their separate parcels of the estate; but neither would' be answerable for the amount assessed upon the share of the other. By the act under which a part of the premises was taken for the use of the public, (2 R. L. 417, § 181,) it is provided that if part of a lot is taken which is under a lease or contract, all contracts and engage; ments between the landord and "tenant as to the part thus taken shall determine and be absolutely discharged, from the time of the confirmation of the report of the commissioners ; but shall remain valid and obligatory as to the residue of the premises. There is also a provision that the dissolution of the relation of landlord and tenant as to that part shall not affeet any agreement between the parties as to the payment of any assessment under the act. The assessment in this case was not imposed on that portion of the premises of which the mortgagees now claim the proceeds, but upon the part which remained. This part, I have already shewn, never came into the possession of the mortgagees, but passed to Mrs. Eh-rick under the sheriff’s sale. The covenant for the payment of the taxes and assessments thereon continued to run with that part of the leasehold premises, in her hands and in the hands of the assignees, until it was finally merged by the complainant’s purchase of the outstanding term in October, 1828. Notwithstanding the sheriff’s sale, the estate of Madden continued liable for the payment of the assessment in consequence of his personal covenant to that effect. Mrs. Ehrick' and her assignees were also liable on the covenant as running with their interest in the land while they continued the owners thereof. But no assessment ever was imposed upon that part which was taken for the use of the public ; as to which the mortgagees may now be considered quasi assignees.

It is impossible therefore tó give the complainant any pri- or claim upon the fund in court, without overturning the decision of the late chancellor, which I am inclined to think was correct; and the result is that the master’s report in this respect must be overruled. As the amount due on the mortgage exceeds the whole fund in court, the mortgagees are entitled to the whole in satisfaction of their mortgage debt.


text:
    Waring and others vs. Crane and Canfield, Executors of, &c.
    Where a bill is filed on behalf of an infant by his next friend, the infant cannot be personally charged with the costs, unless, when he arrives at 21, he adopts the proceeding and elects to prosecute the suit.
    Where the suit is terminated before the infant becomes of age, the next friend will be chargeable with the costs unless t.iere be a fund belonging to the infant under the control of the court, and it appears that the suit was brought in good faith and with a bona fide intent to benefit the infant; in which ease the court may direct the costs to be paid out of the fund.
    If the suit was improperly brought, and the infant, when he arrives at 21, elects to abandon it, he may apply for a reference to ascertain the fact, and the bill will then be dismissed with costs to be paid by the next friend.
    But if the suit was properly instituted for the benefit of the infant, and at 21 he elects to abandon it, he must, upon the dismissal of the bill, pay the costs of his next friend as well as those of the adverse party.
    March 16th
    The bill in this cause was filed in July, 1824, in the name of the complainants, who were infants, by A. Brunson, as the next freind of W. Waring, and by W. Baker, as the next friend of the other three complainants ; charging the defendants, who were executors, with mismanagement of the estate of the fattier of the complainants; and also alleging that one of the defendants was irresponsible. An injunction was granted restraining the executors from selling or disposing of the estate. In October, 1825, upon the application of the defendants, and with the consent of the counsel for the complainants, a receiver of the estate was appointed. On the fourth of March, 1827, W. Waring became of age ; but without adverting to that fact the cause was brought to a hearing without giving any notice to him or calling upon him to appoint a solicitor. On the 16th of April, 1827, a decree for an account was made by the consent of the counsel for the defendants and of the guardians of the complainants. The cause was afterwards brought to a hearing on the master’s report, but- it being ascertained that one of the complainants was of age and had no notice of the hearing, the chancellor ordered the cause to stand over, that such complainant might have notice to appear and defend his rights. An order was subsequently made referring it to a master to enquire and report whether there were any just grounds for the commencement and prosecution of this suit; and whether the same had been prosecuted by the advice of -counsel in good faith, and with the sole object of subserving the interest of the infant complainants ; and to enquire and report whether the complainant W. Waring, since he became of age, had adopted the proceedings in the suit and assumed the agency and management thereof. The master reported that although there were appatently, yet in fact there were no just grounds for the commencement of the suit; that the suit was commenced for the infants by the advice of counsel, and with the sole object of subserving their interests; that after W. Waring became of age, he took possession of the papers in the suit, and procured a master to proceed on the order of reference; and that since May or June, 1827, he had had the direction and management of the suit. After this report was made, the cause was brought to a final hearing, upon the pleadings, proofs, reports and the objections of the complainants’ counsel to the last report.

      J. Edwards, for the complainants.

      B. F. Butler, for A. Brunson.

      P. S. Parker, for the defendants.
   The Chancellor.

If a bill is filed on behalf of an infant by his next friend, and the bill is dismissed or a decree is made in the cause before the infant is of age, he cannot be personally charged with the costs. They are to be charged against the next friend, unless there is a fund under the control of the court belonging to the infant, in which case the court may direct the costs to be paid out of that fund. (Taner v. Ivie, 2 Ves. sen. 466.) But the costs will not be charged on the infant’s estate, unless the court is satisfied the suit was brought in good faith, and with a bona fide intent to benefit the infant. (Pearce v. Pearce, 9 Ves. 547. Whitaker v. Marlar, 1 Cox’s Cas. 285.) In Turner v. Turner, (2 Peere Wms. 297,) the next friend died before a decree in the cause. After the infant became of age, he refused to proceed in the suit; and the bill was dismissed against him with costs. But on a re-hearing in that case, Lord King reversed his former decree as to the costs, and decreed that the infant was not liable therefor. (1 Strange, 708. 2 Eq. Ca. Abr. 238, S. C.) If the suit was improperly-brought, and the infant elects to abandon it when he becomes of age, he may apply to the court for a reference to ascertain the fact, and the bill will then be dismissed, with costs to be paid by the next friend. But although the complainant elects to abandon the suit when he is of age, he cannot, as a matter of course, compel the next friend to pay the costs. If the suit was properly brought for the infant’s benefit, he must , pay the costs of the next friend, and also those of the adverse party, when he applies to dismiss-the bill. (Anon. 4 Madd. R. 461.) If he elects to proceed in the cause after he is of age, the next friend is discharged from his liability, and the infant will be liable in the same manner as if the suit had been commenced by an adult. (1 Harrison, 474. Mitford, 26.) The only exception to this rule must be, the case that sometimes occurs, where a decree has been made' during his infancy, by which the infant’s rights are bound. There the suit cannot be abandoned, although it was not brought in good faith, and was against the interest of the infant. In such a case, if the infant applied in time, the court might compel the next friend to remunerate him for the costs and expenses to which his estate had been improperly subjected, although he was compelled to proceed under the decree. In this case, W. Waring became of age before the decree was made against the executors for an account. He afterwards elected to proceed under the decree, and took the management of the reference into his own hands. He has therefore affirmed the act • of his next friend in bringing the suit, and it is too late for him now to insist that it was improperly brought. . His proportion of the defendants’ costs must be charged on him personally, or be paid out of his share of the estate.

The situation of the next friend of the two complainants who have not arrived of age is different. If the suit was now in a situation to have the bill dismissed without prejudice to the rights of the infants when they come of age, I should be disposed to charge the costs upon their next friend, on the ground that the suit was improperly instituted by him, and without taking ordinary care to inform himself as to the facts. But some embarrassment now arises from the decree of April, 1827, under which the accounts of the defendants have been taken. By the will of the testator the defendants were trustees, both of the real and personal estate, until the youngest child became of age; and it was their duty to take care of it until that time, and then sell or divide it among the complainants. Instead of consenting to a decree for an account, and asking for the appointment of a receiver, they should have asked for a dismissal of the bill; to enable them to go on and execute the trust, and account to the heirs when they became of age. The report of the master upon that reference having been confirmed, that accounting, so far as it goes» must be considered final between the parties. But the defendants cannot take the legacies, which were evidently intended as a remuneration in part to them for the execution of their trust under the will, and abandon the trust* As they have been guilty of no misconduct or breach of trust they are entitled to the costs of defending this suit and of taking the account, to be paid out of the fund. The injunction must be dissolved and the receiver discharged; and he must account with and pay over to the defendants the balance, if any in his hands, and deliver to them all property which has come to his possession. In case of disagreement, his accounts must be passed before a master residing in the county of Jefferson. The decree must direct the defendants to proceed and execute the trust according to the directions of the will, and to distribute the property among the complainants when they become of age, respectively, retaining out of the share of each one third of the costs of this suit. It must reserve to the complainants the right to apply to the court for further directions as they shall be advised, if they cannot settle the estate amicably with the executors ; but the account, as far as it has been taken is to be conclusive upon both parties. The defendants are also to be at liberty to apply to the court from time to time as they shall be advised, for directions in relation to the execution of their trust; giving the usual notice of such application to the complainant who is of age or to his solicitor, and to the guardian of the infants. The right is also to be reserved to each of the complainants who are infants, at any time within six months after they come of age, and notwithstanding any acts done by them under the decree in this cause, to ap< ply to the court for such order and direction in relation to the costs, as between them and their next friend, as.may be just "