text:
    Sanford vs. McLean.
    February 21.
    Where a wife who is an infant unites with her husband in a deed of conveyance of his real estate to trustees for the payment of his debts, under an ignorance of her legal rights, being informed at the time she signed and acknowledged the deed that the same would not prejudice her rights, such deed cannot afterwards be set up against her as a bar to her right of dower in the land so conveyed.
    A conveyance by an infant feme covert, although executed and acknowledged in the manner prescribed by the statute, is void.
    After marriage, an infant feme covert cannot bind herself by any deed or contract, either in law or equity, except under the sanction of the court of chancery, or in the cases specially provided for by statute.
    It is only in those cases where the person advancing money to pay the debt of a third party stands in the situation of a surety, or is compelled to pay it to protect his own rights, that a court of equity, as a matter of course and without any agreement to that effect, substitutes him in place of the creditor.
    In other cases the debt of a creditor, which is paid with the money of a third person, without any agreement that the security shall be assigned or kept on foot for the benefit of such third person, is absolutely extinguished.
    A sale under a judgment against the husband, obtained before marriage, will divest the right of dower of his wife in the land sold."
    In equity, the. purchaser under a judgment takes the Land subject to all equitable claims, prior in point of timo to the judgment, of which he had notice at or prior to the sheriff’s sale.
    Where, upon a bill filed to restrain a widow from proceeding at law to recover her dower, the complainant fails in defeating her claim to dower, it is not the practice for the court to proceed to the assignment of the dower; but to dismiss the bill upon the merits, and to allow the defendant to proceed at law.
    The bill in this cause was filed to restrain the defendant, who is the widow of James M’Lean deceased, from proceeding at law to recover her dower in a house and lot in the city of New.York, and to compel her to execute a release of dower to the complainant. The cause was brought to hearing on bill and answer. And the principal facts as admitted by the defendant in her answer, are stated in the opinion of the court.

      R. Lockwood,

    for the complainant. We ask for a perpetual injunction against the defendant, to restrain her from proceeding at law for her dower in the premises in question. She cannot in equity claim her dower, having united with her husband in a conveyance of the premises to trustees for the payment of his debts. Her infancy at the time of the execution of this conveyance cannot relieve her from its effect. The premises in question were sold by the trustees, under the power of sale contained in the conveyance, and purchased by one Knapp, who sold the same to the complainant. The consideration paid by Knapp was applied in payment of the judgments against the husband of the defendant. A deed executed by an infant is not absolutely void. (McCoy v. Huffman, 8 Cowen, 86.) It was held in that case, that although an infant may avoid his contract, he cannot recover back money paid by him on the contract. The deed of the wife was not therefore per se void. The payment of a consideration to her was not necessary to bar her right of dower. In Lynde v. Budd and others, (2 Paige's Ch. R. 191,) the chancellor held that the infant confirmed the mortgage given by him for the purchase money, by retaining possession of the premises after he came of age ; and that the mortgage was not per se void. Where property has been sold to an infant in good faith, and a legal security obtained for the purchase money, the court of chancery will not deprive the vendor of his security without restoring to him as much as the estate of the infant has been actually benefit-ted by the sale. (Loomis & Hayden v. Spencer & Rolph, 2 Paige's Ch. R. 153.) This question was discussed in Hadsden v. Lloyd, (2 Brown's Ch. Cas. 545,) and in Harvey v. Ashley, (3 Atk. 607.) In the latter case it was held that an infant was bound by a settlement made on her marriage, where it was made with the approbation of her parents or guardian. Either a legal or an equitable jointure settled upon an infant before marriage, is binding upon her, and will bar her right of dower. (Williams v. Chitty, 3 Ves. jun. 545. Drury v. Drury, 2 Eden's R. 60. Prec. in Chancery, 65, 123, 137.) We bring ourselves in this case within the equity of the decisions as to equitable jointures. The husband was insolvent. His creditors had obtained judgments against him previous to his marriage with the defendant. The premises in question, therefore, might have been sold under those judgments, and the defendant would then have had no pretence of claim for dower. She had in fact no interest in the premises, and was not entitled to any consideration for her assignment. The defendant’s delay in commencing her action of dower until we purchased, ought to bar her recovery. She should immediately, upon her husband’s death, have commenced her suit. But having remained quiescent under this deed of assignment, until innocent purchasers have purchased, she cannot now set up her claim of dower. The complainant is within the equity of the case of Jackson v. Dewitt, (6 Cowen, 316,) where the husband, having given a mortgage before marriage, after marriage executed and delivered to the mortgagee a release of the equity of redemption ; it was held to be equivalent to a foreclosure of the mortgage, and that the wife had no right of dower. Where the land of which the wife is endowable is subject to a mortgage, the wife must keep down one third of the interest, or only claim her dower in the equity of redemption. Here the defendant could only have recovered her dower, subject to the judgments. She is bound by her execution of the assignment of the premises in question, because the premises could have been sold under these judgments free from her dower. Where there is a mortgage executed by husband and wife, the wife can only be endowed out of the equity of redemption. (Russell v. Austin, 1 Paige, 192. Hale v. James, 6 John. Ch. R. 258.) As at law the wife can only be endowed according to the value at the time of the alienation by the husband, so in equity, the wife can only be endowed of the premises according to their intrinsic value at the time of the assignment. The judgments at the marriage of the defendant were in amount double the value of the premises in question ; consequently her right of dower was of no value. The defendant, by suppressing the fact of her infancy, committed a fraud upon the purchasers. She is therefore estopped from now-taking advantage of it. If there had been any personal property, it should have been set forth in the answer.

      W. C. Hasbrouck & G. F. Tollman,

    for the defendant. It does not appear from the pleadings that McLean, the husband of the defendant, was insolvent at the time of the execution of the conveyance of the premises in question. The defendant was persuaded to sign this conveyance by the as-assurance from the trustees that her rights would not be prejudiced. In the cases cited, where the infant has been held bound by his contract, he had received the consideration. Here the defendant received nothing. In Lynd v. Budd, the infant continued in possession after arriving of age; not so. here. The cases of equitable jointure do not apply. (Stamper v. Barker and others, 5 Mad. 157.) It is an established rule that a feme covert, who is an infant, is not bound by any agreement made by her. An equitable jointure, to be binding upon the wife, must be settled upon her before marriage. A feme covert to be bound by a deed must acknowledge it as required by the statute. The claim of dower is founded in law. After the right attaches, the wife cannot be deprived of it, except by a strict legal proceeding. There is no proof that the judgments have been paid out of the proceeds of the assigned property.
    Knapp bought the property in for one of the trustees. A trustee cannot purchase any part of the trust property. A debtor after judgment continues seised until a sale under the execution. The conveyance in this case is also void for the fraudulent misrepresentations of the trustees. The complainant cannot complain of the loches of the defendant, as her husband did not die seised, and she is not therefore entitled to damages. A sale, under a judgment recovered prior to the marriage, to bar the wife’s dower must be made prior to the marriage. The lien of a judgment may or may not become a specific lien. Will a judgment creditor be permitted to sleep upon his judgment until all the personal property of his debtor is exhausted, and then to enforce it upon the land, and deprive the wife of her dower 1 But independently of these judgments, the defendant has a right to her dower. These judgments may be void ; they may have been paid. If the court comes to" the conclusion that the defendant is entitled to dower, it can be set off to her here without remitting the proceedings to the court of law. This course will prevent unnecessary litigation. (Swain v. Perine, 5 John. Ch. R. 492.)
   The Chancellor.

The defendant executed and acknowledged a conveyance of the premises in question to G. W. McLean and others as trustees, to sell the same and the other real estate mentioned therein, for the payment of the debts of her husband. At the time this conveyance was executed the defendant was an infant. And she alleges that she executed it in the absence of her husband, who was confined on the jail limits; that she had at the time no knowledge of her legal rights; and that she was told by one of the grantees, at the time of signing and acknowledging the deed, that it would not prejudice her rights. As the cause is heard on bill and answer, this averment is to be taken as true, in every respect; and it shows there is not the least shadow of equity for setting up this deed against her as a bar. Independent of this fact, however, the conveyance by this infant feme covert was clearly void, notwithstanding it was acknowledged by her apart from her husband, in the form prescribed by the statute. There are some cases in which an infant may be equitably bound by a marriage contract and settlement, entered into with the consent of her parents or friends. But she will not be bound in such cases, unless she could in some way be benefitted by the contract. It is at least questionable whether she can in that case make any binding contract as to her real estate. After the marriage, however, it is clearly settled that an infant feme covert cannot bind herself by any deed or contract, either at law or in equity, except under the sanction of the court of chancery, or in the cases provided for by the statute. In Hearle v. Greenbank, (1 Ves. sen. 299,) Lord Hardwicke decided that an infant feme covert could not execute a power as to her separate estate, although she would have had the right, notwithstanding the coverture, had she been an adult. And in a recent case, Sir John Leach decided that a contract made by an infant feme covert and her husband, although her father entered into the contract also and it was apparently for her benefit, was a mere nullity as against the wife. (Stamper v. Barker, 5 Mad. R. 157.) The statute, which makes valid the deed of a feme covert when executed with her husband and acknowledged by her on a private examination, was never intended to sanction or validate a conveyance by an infant wife. There is a plain and obvious distinction between the disability of coverture and that of infancy. The first arises from a supposed want of will on account of the legal power and coercion which the husband may exercise over the volition of the wife. This disability is removed by the private examination of the wife in the absence of her husband, by which it is legally ascertained that such power and coercion has not been exercised in that partiular case. But the disability of infancy arises from the supposed want of capacity and judgment in the infant to contract understandingly. And the only way in which that disability can be obviated is by the legal substitution of some third person in the place of the infant, to exercise a judgment in her behalf. And this can only be done under the authority of the court of chancery, and in a few other cases specially provided for by law,

I do not see from this answer that the defendant has done any thing since the death of her husband to sanction this conveyance, or to mislead the complainant. The mere delay, for a year or two, to institute a suit for her dower cannot bar her right, either at law or in equity. Neither has the complainant showed any thing to entitle him to be subrogated in the place of those judgment creditors whose liens on the property overreached the marriage. If the complainant had actually advanced the money to pay off those judgments, it is doubtful whether he would have been equitably entitled to be substituted in their place without some conventional arrangement, to that effect, with those creditors. It is only in cases where the person advancing money, to pay the debt of a third party, stands in the situation of a surety, or is compelled to pay it to protect his own rights, that a court of equity substitutes him in the place of the creditor, as a matter of course, without any agreement to that effect. In other cases the demand of a creditor which is paid with the money of a third person, and without any agreement that the security shall be assigned or kept on foot for the benefit of such third person, is absolutely extinguished. Such also is the rule of the civil law; although by that law a surety paying the debt is subrogated to the rights of the creditor ipso facto. (Curtis v. Kitchen, 8 Martin's R. 706. Nolle & Co. v. Their Creditors, 19 id. 602.) There is no allegation in the complainant’s bill that any part of the purchase money of this lot has been applied to the satisfaction of the judgments, or that the amount due thereon may not hereafter be levied upon the property conveyed by James McLean to the trustees. On the other hand it is expressly shown by the answer that the complainant applied the purchase money of the lot to the payment of the individual debt of one of the trustees, who had caused the trust property to be bid in for his own benefit. If the court should give the complainant the benefit of those judgments to protect his title to this lot, the creditors might, notwithstanding, proceed and sell all the other property bound thereby, and in which the defendant is also entitled to dower, to satisfy the same claim. One of the counsel for the defendant supposed that a sale, under a j udgment obtained before the marriage, could not overreach the marriage so as to divest the right of dower of the wife. But as to this he was under a mistake. At law a judgment is a lien on and attaches itself to the whole legal estate which the debtor has in the land at the time of the docketing of the judgment. And this lien cannot, without the assent of the creditor, be detached or displaced by any species of alienation, or by any subsequent event whatever. The effect of the judgment is the same in equity, except that a purchaser under the judgment will take the land subject to any equitable claim thereon, which was prior in point of time to the judgment, and of which the purchaser had notice at or before the sheriff’s sale of the property. (1 Atk. on Conv. 508, 512. Ex parte Howe, 1 Paige's R. 125.) In the present case, however, if the widow should be compelled to pay off the pri- or judgments to save her dower, she might have an equitable claim to be substituted in the place of the judgment creditors, with the right to collect the amount back again out of the estate which her husband had at the time of the marriage, exclusive of her dower therein. And if the creditors have released the interest of the husband from the operation of the judgments, so that she cannot protect herself by a substitution, perhaps a court of equity would not allow them to sell her dower right in the land to satisfy their debts. However that may be, I am satisfied this complainant has not shown himself to be entitled to any legal or equitable bar against her claim of dower in this particular lot.

The defendant’s counsel supposed that this court, having the whole case before it, might proceed to the assignment of the dower. But I do not understand that to be the usual practice of the court in such cases. Dismissing the bill upon the merits, in this stage of the suit, will undoubtedly settle the rights of the parties conclusively as to all the questions which this court has now been called on to decide. But the injunction must be dissolved; and the defendant may then proceed and enforce her rights in the suit at law. The decree will declare, that as it appears, from the pleadings in this cause, that the defendant was an infant at the time she executed and acknowledged the conveyance of the 12th of June, 1823, to the trustees, and as she has never since ratified the same, it was void as against her. That she is neither legally or equitably barred of her dower in the house and lot in the city of New-York in the biH mentioned, but is entitled to the same ; and therefore that the injunction be dissolved, and the complainant’s bill be dismissed, with costs.


source: Caselaw Access Project

author: The Chancellor.

license: Public Domain

text:
    Campbell & Carpenter vs. Western and others.
    February 21.
    A mistake of judgment in arbitrators is not sufficient evidence of improper conduct on their part to justify the setting aside of their award, in a court of chancery.
    An arbitrator cannot contradict an award which he has signed.
    It is not necessary that all the arbitrators should concur in the decision of every question which arises, during the hearing, as to the admissibility of evidence ; it is sufficient if all actually hear the cause and join in the award which is finally made.
    Where the subject matter of a suit is in relation to a bond or contract in which there are joint obligors, all the obligors ought to be made parties.
    This was an appeal from the decision of the late vice chancellor of the first circuit, dismissing the complainants’ bill against the defendants, respectively, with costs. The facts appearing upon the pleadings and proofs, so far as they are material to the decision of the questions arising on this appeal, were as follows: The defendant Depew had recovered a judgment against Emerald Wheeler, in the marine court of New-York; upon which an execution was delivered to the marshal, who levied the same upon a quantity of apples lying upon the side walk, in front of the complainants’ store. 'The apples were claimed by the complainants, as their property, but the marshal refused to give them up ; whereupon they brought an action of replevin. They neglected to proceed in that suit, and were either nonsuited or nonprossed therein. An action was thereupon brought in the superior court, on the replevin bond, in the name of Lowndes, the sheriff, to whom it was given, but for the benefit of Depew, who was a defendant in the replevin suit. The complainants then brought an action of trespass against Depew in the supreme court. In this state of the business, the complainants in the present suit proposed to Depew to submit the question to referees. The parties thereupon entered into a written agreement in the suit pending on the replevin bond, to submit the question to S. T. Williams, A. M. Valentine and G. Ostrander, whether the apples belonged to the complainants or to Wheeler, at the time the execution was levied on them. And it was agreed that if the referees decided that the apples belonged to the complainants, then both suits were to be discontinued, without costs on either side, and the parties were to execute mutual releases. But if the referees found the title to have been in Wheeler, then they were to make a report, for the sum of $119,07, in the suit on the replevin bond; for which sum a judgment was to be entered in that suit, against the complainants and their bail, together with the costs of the suit, and the costs of the reference. The complainants and their bail also signed a relicta and cognovit for that sum, and released all errors in the proceedings and in the judgment which was to be entered thereon, and placed it in the hands of the attorney for the plaintiff in that suit, to be used if the decision of the referees should be against the title of the complainants. The attornies for the parties, by direction of their clients, signed a stipulation that the agreement or submission should be made a rule of court. This stipulation was thereupon filed, and a rule was entered in the superior court as a common rule, in the usual form of rules on reference by consent. The matter was thereupon heard before the referees, who made a report in writing, signed by them all, by which they found and decided that the title of the apples at the time of the levy was in E. Wheeler ; and they reported the amount due in the replevin suit according to the agreement. Whereupon the plaintiffs’ attorney filed the report and cognovit, and entered up judgment thereon according to the stipulation. The complainants applied to set aside the report, on the ground that the referees had improperly excluded the testimony of Wheeler as an interested witness. But the superior court decided that the reference was in the nature of an arbitration, and denied the application. The bill in this cause was thereupon filed to restrain the proceedings under the decision of the referees, and under the judgment.

      T. C. Pinckney <$• W. Sillimcm,

    for complainants. There has been no reference in this cause pursuant to the statute, and therefore no valid report under the statute. Where a cause is referred by consent, without a rule of court, or where the parties, by rule entered by consent, refer a cause not within the statute, the court will not interfere in setting aside the proceedings. But the parties are left to the same remedy as in the case of a mere submission to arbitrators, (1 Dunlap’s Pr. 540 ; 1 John. Rep. 315, 492 ; 17 John. Rep. 129 :) that is, in a court of equity. Neither of the causes between the parties were referrible under the statute. The case in the supreme court was an action of trespass, and the one in the superior court was an action of debt upon a replevin bond. The reference by the mere act of the parties, and without the intervention of the court, was a discontinuance of the suits, and the judgment entered on the report of the referees in the superior court, was therefore erroneous and void. (18 John. R. 22.) The cases referred not being within the statute, the consent of parties would not confer jurisdiction. (18 John. R. 22.) The superior court having no power to review the proceedings, or grant any relief in the premises, fully justified the interference of this court by injunction, staying all proceedings on the judgment in that court. (7 Cranch, 332, 336.) Courts of equity will always restrain the enforcement of judgments at law, obtained against conscience. (7 Crunch, 332, 336.) There has been no arbitration, and therefore no valid award ; but the whole proceedings are founded in mistake, and are void.
    Chancery always looks to the intention of the parties. If) then, they intended a reference under the statute, and under the power and control of the court, they did not intend an arbitration. The term arbitrator, or arbitration, is no where used. It is called a reference in every paper, and the persons appointed, referees. The intention of the parties is important in tins respect; if a reference under the statute was intended, the parties and referees no doubt supposed the court could, and would rectify any error they might commit; whereas if a mere arbitration was intended, or understood, they could have had no such supposition, but considered the arbitrators the judges of the law and the fact, and their decision binding and conclusive in the premises, whether right or wrong. No court has ever yet said that the reference of a cause, intended to be pursuant to the statute, failing to be so, becomes an arbitration. All they have ever said is, that the parties are left to the same remedy as in the case of a mere submission to arbitrators. (1 Dunlap’s Practice, and cases there cited.) If it was a mere arbitration, the defendants had no right to enter judgment and take out execution in the superior court; their only course was by action upon the report, treating it as an award. “ An award of arbitrators, appointed under a mutual mistake of both parties, in supposing themselves bound by law to submit the matter in dispute to arbitration, is not obligatory.” (Peisch v. Ware, 4 Crunch, 347, 366.) Equity relieves against mistakes, either of fact or of law merely. (Hunt v. Rousmanure’s Admr. 8 Wheat. 211.)
    The parties have been mistaken in regard to the tribunal ; they having agreed to the ordinary reference under the statute, and tried their cause before persons whom the defendants now, for the first time, call arbitrators. It is presumed this court will go as far in this case as a court of law would in respect to an award of arbitrators, where the submission is made a rule of court. There are numerous authorities in Peake’s Evidence, by Norris, 118, note, speaking as strong language as this. The same cause which will induce a court to set aside a verdict will govern in the case of awards ; and therefore, if it appear that there has been manifest injustice, or a plain and clear mistake, either in law or in fact, the report will be set aside.
    The referees have been-mistaken in regard to the effect of their report, for it was intended that the question as to the admissibility of Wheeler should be submitted to the court. This is fully proved by the testimony. Williams swears he dissented from the other referees in rejecting Wheeler, and did not yield or change his opinion. Could a less number than the whole make a decision 1 There was no provision that the decision of a less number than the whole should be binding in any respect. The rule of reference was mistaken; it was not warranted by the consent. There was no agreement that the decision of a less number than the whole should be binding ; whereas Mr. Western entered the ordinary rule of reference under the statute, “ that they, or any two of them,” &c. This tended to mislead the referees, and induced them to believe the decision of a less number than the whole was binding, in the rejection of Wheeler, and in signing the report. The referees decided against the weight of evidence before them, which proved the property to be in the complainants, and contrary to law, in excluding the testimony of Wheeler, and in admitting mcompetent witnesses. And they have misbehaved in regard to the matters referred, and their report is therefore void.
    Wheeler was not a party to the suit, nor in any way interested in the event. He was the complainants’ agent, and was competent to testify. An agent may even prove his own agency, and any facts within the scope of his agency. (1 Phil .Ev. 79.) Every agent is a competent witness, ex necessitate. (1 John. Cas. 270, 408. 2 id. 60. 3 id. 39. 5 John. Rep. 256.) A factor who was to. have poundage, according to the amount of the sale, was held a good witness to prove the contract, in an action by his principal. (Dixon v. Cooper, 3 Wilson, 40.) And in like manner, a factor who was to have all above a certain sum, was admitted to prove a contract above that sum. (2 H. Black. 590.) The refusal of the referees to hear the testimony of Wheeler, was such misconduct as vitiated their report, and for which it ought to be set aside in equity. (Van Cortlandt and others v. A. J. & J. Underhill, 17 John. Rep. 405, in error, id. 419, per Spencer, J.) If the arbitrators refuse to hear evidence pertinent and material to the matter in controversy, it is unquestionably such misconduct as will vitiate an award in a court of equity. (Idem. 411.) Arbitrators proceeding contrary to the principles of natural justice, though there be no corruption, as if without reason they will not hear a witness, are good causes for setting aside an award. Partiality is also a ground for setting aside an award. (17 John. R. 405. 2 John. Ch. Rep. 339.)
    It has been said on the part of the defendants, that Williams being one of the referees, was an incompetent witness in this suit. This is not so; for the case of Van Cortlandt v. Underhill, (17 John. 405, ) turned wholly upon the testimony of Anderson, one of the arbitrators. In the first instance he was made a party to the suit, but afterwards struck out, for the purpose of being made a witness. Allen, senator, says, in that case, (17 John. 421,) “ The competency of this witness has been admitted; but his credibility is sought to be impeached, principally on the ground of his having signed the award, and declared it be according to his best judgment and belief.” The complainants have suffered by the rejection of Wheeler as a witness, on whose testimony the whole merits of the cause rested. Wheeler being the agent, was doubtless cognizant of the whole transaction, and able to give the most positive and conclusive testimony upon the subject. And if the referees had any doubt, he probably would have removed it. His total rejection is a strong circumstance to prove bias upon their minds. The testimony adduced before he was offered did not establish his interest. The verdict could not be evidence in any suit against him, not being a party to the record; nor could it fix any liability upon him. We offered him to prove that the property was not his ; which would leave him still exposed to the execution. A witness is always competent to swear against his own interest; or when his interest is neutralized. It is absurd to say a release from us would have bettered his situation; for he either stood neutralized as to interest, or he was offered to prove facts against his own interest. A release from us could not have prevented Depew’s execution still existing against him. If we had released him, the opposing counsel would doubtless have taken that ground.
    The defendant Western professes to have acted as attorney merely; but he used the report and relicta deposited with him, improperly. As to the latter, he was manifestly a trustee in some manner for the complainants, and without their further authority could not rightfully use it. There was much move reason for making Western a party than the arbitrators in the case of Underhill v. Van Cortlandt, (17 John. Rep. 405.) Western was the prime mover of all, from the beginning to the end. His client Depew was a nonresident. He drew all the papers. The relicta was left in his hands. The report of the referees was handed to him. He filed it, entered judgment upon it, issued execution thereon, and levied upon the complainant’s property. He also deluded the referees, and objected to the superior court’s passing ■upon the question as to the admissibility of Wheeler. And he was proceeding to dispossess the complainants of more property, when he was arrested by the injunction of this honorable court. His interest, as to costs, far exceeded the interest- of bis client from the amount in controversy. In a word, he is an accessory to all the errors and mistakes in the whole proceedings. He was the active instrument or agent of a person who, in all probability, was ignorant of the course, nature and effect of all the proceedings. He had the management and control of the whole matter. Western should not, if improperly made a party, be allowed costs of his answer, because he ought to have demurred. (See Executors of Gallager v. Roberts, 1 Wash. C. C. Rep. 380.)
    Lowndes was properly made a party. He was the plaintiff in the suit on the replevin bond in the superior court, and his name was used in all the proceedings on the reference. The judgment on the report of the referees was entered in his name, by Western. Hoyt ought not to have been permitted to testify before the referees; because, by securing a verdict against the complainants he would screen himself from being prosecuted for the trespass. It was improper for Ostrander to hold ex parte communications with Depew on the subject and nature of the controversy. This is decided in the case of Underhill v. Van Cortlandt, (17 John. Rep. 405.)

      J. Radcliff,

    for the defendant." The reference or submission to the referees having been made by the written consent of both parties, which authorized judgment to be entered against either party according to the determination of the referees, accompanied with a formal relicta and cognovit, signed by all the defendants, and also by their attorney in the action of replevin, was binding and conclusive upon them ; and no court will interfere therewith, unless mal or corrupt conduct, in the referees, is shewn. There is no pretence or foundation for any charge of' this kind against the referees. The authorities upon the subject are conclusive to show their decision is final. The cases cited by the opposite party go fully to support this point. The case of Miller v. Vaughan, (1 John. R. 314,) had been referred by consent of parties without any rule of court. The court there say that they will interpose only where the cause has' been referred by a rule of court pursuant to the statute. That, in other cases of reference of causes by consent, the parties must be left to their remedy as in case of an arbitration. This decision is not against us, for here the reference was not only made by consent of parties, but by a rule of court founded on an agreement in writing, by which judgment was to be entered according to the report of the referees. And a relicta, for that purpose, containing a release of errors, was also given. In Stevenson v Becker, cited also on the other side, a motion was made for judgment as in case of nonsuit on a report of referees. That was not a case within the act. And the parties submitted the cause, by consent, to referees and agreed that their report should be con-elusive; and that if the referees decided in favor of the defendant, he should be entitled to a judgment of nonsuit. The court there held that the case came within the reason of the decision of Miller v. Vaughan, and that the parties having agreed that the report should be conclusive, they must abide by it, and the court therefore granted a judgment of nonsuit. This case is decisive of the present. We ask no more than that the parties shall abide by their agreement, and the confession of judgment they have given. The next case cited by the complainants is that of Johnson v. Parmely, (17 John. R. 129.) That was a case not referable under the statute; but by consent a rule of reference had been entered, in the clerk’s office, referring the cause to referees. A motion was made to set aside the report of the referees. The court refused to exercise any control over the proceedings, regarding the submission as a mere arbitration ; and they denied the motion with costs. There was in that case no consent or agreement that judgment should be entered according to the report, nor any relicta given as in the present case; and therefore it has no application. The next case cited by the complainants is that of Camp v. Root, (18 John. R. 22.) That was an action of replevin, referred by consent generally. The court say it is plainly a case of submission to arbitration, and in no respect within the statute, &c. But they refer to the case of Yates v. Russel, in the court of errors, (17 John. R. 461,) in which it was stipulated by the defendant’s attorney that if the referees reported against him, judgment should be entered according to the report, and that was considered equivalent to a plea of confession for the amount reported due. But the court said that in the case before them there was no such stipulation, and therefore the}? considered it as the case of an arbitration and award merely. In the case now to be decided there was not only an agreement that judgment should be entered, but also a plea of confession with a release of errors was given, signed by all the defendants, and also by their attorney, making a case much stronger than the one in the court of errors. In the case of Dodge v. Waterbury, (8 Cowen, 136,) the reference was to two referees, with power to choose an umpire, The court considered it not within the statute, and an arbitration only.
    The plain distinction established by these cases is, that when the parties agree, in a case not referable under the statute, to refer the same to referees generally, without providing that judgment shall be entered according to the report, it will be regarded as a mere arbitration ; but if there be a stipulation that judgment be entered up according to the report, the court will allow it to be done. The cases on this subject, (to show the conclusive effect of such award,) both ancient and modern, at law and in equity, in England as well as in this country, are collected by Chancellor Kent in the case of Underhill v. Van Cortlandt, (2 John. Ch. R. 361 to 369.) Although the decision of Chancellor Kent in that case was afterwards reversed by the court of errors, it was so reversed on a ground inapplicable to the present case. For nothing short of corruption or partiality on the part of arbitrators or referees, or some fraud practiced by a party, can the report or award be set aside. No such thing was pretended in the court below to have existed, although it is now insisted upon. To show with what caution the court will receive imputations of this kind against referees, or arbitrators, the case of Davy’s Executors v. Earn, in the supreme court of the United States, all the judges being present, is referred to. (7 Cranchis R. 174.) It belonged to the superior court in New-York to set aside the report if it ought to have been done, it being a suit in that court and properly under its cognizance. An application to set aside the report having in fact been made to the superior court and refused by them, it is res adjudicate; and no application can therefore be received here unless new matter is shown. No such new matter" has been shown to warrant the interference of this court.
    Wheeler, the witness offered by the complainants before the referees, was properly rejected, he being a party in interest, and combined in the fraud attempted to be practiced on the defendants ; of which interest the referees were the sole judges. If it were true that Wheeler was improperly rejected, still it being a question of evidence only, and decided in good faith by the arbitrators, it cannot be a sufficient ground for setting aside their report or award. It being a matter of opinion only, it cannot be any evidence of misconduct on the part of the arbitrators. The case of Van Cortlandt v. Underhill, (17 John. R. 405,) in error, is not like the present. There the arbitrators refused to hear any evidence on the subject. It was not a question as to the competency of a witness or as to any particular piece of testimony, but a rejection of all evidence on the subject. This, by a majority of the court of errors, was considered to be misconduct on the part of the arbitrators. But there was a difference of opinion in the court even in that case. The expression of Spencer, justice, “ If the arbitrators refuse to hear evidence, pertinent and material to the matter in controvsy, it is unquestionably such misconduct as will vitiate an award in a court of equity,” does not apply to the present case. There was no refusal to hear evidence on the subject, it being a question as to the competency of a witness only. The farther expression of “ arbitrators proceeding contrary to the principles of natural justice, though there be no corruption, as if without reason they will not hear a witness, are good causes for setting aside an award,” is equally inapplicable. These arbitrators did not without reason refuse to hear any witness, and they fairly exercised then-judgment with regard to the competency of Wheeler.
    But Wheeler was in fact, according to the evidence in the cause, an incompetent witness. A case similar in principle to the present occurred in the superior court of New-York, in which a witness was produced and examined in the character of an agent, though objected to. He was an agent for his mother, and was authorized to sign her name to promissory notes and other papers. It appeared from his testimony that he had signed his mother’s name as such agent to a promissory note for money, which was the subject of controversy in that cause. The note was made for the purpose of raising money; and a part of the money so raised was for the use of the witness, and the remainder was applied to the use of the mother. The question as to the competency of the witness was reserved at the trial; and after-wards the superior court decided that he was an incompetent witness, he having an interest in the subject matter in controversy.
    It was improper to make Western a party, he being merely attorney and counsel in the matter in controversy. As to him the bill ought to be dismissed with costs on the complainants’ own shewing. It is idle to pretend that he used the report and relicta improperly. They were used for the very purpose intended, and in no other way.
    Simon T. Williams, one of the referees, was an incompetent witness to impeach his own report, on the same ground that jurors are not allowed to impeach their verdict. But referees, like jurors, may give evidence to support their report. This is laid down in the case of Van Cortlandt v. Underhill, (2 John. Ch. R. 349,) in which case Chancellor Kent says, “ that it falls within the reason and policy of the rule of law that the affidavit of a juror is not to be received to impeach his verdict, because it would expose jurors to dangerous practices, and to be tampered with by the losing party.” The reason of the rule in both cases is equally strong. The bill ought to be dismissed with costs, and the decision of the vice chancellor affirmed.
   The Chancellor.

Before I proceed to examine the merits of the bill as between the real parties in interest, it may be proper to notice one or two objections which apply to the defendants Western and Lowndes, exclusively. It is said neither of them were necessary or proper parties, and that the bill as to them was properly dismissed, with costs, whatever might have been the opinion of the court as to the rights of the complainants as against Depew. This objection as to Western is unquestionably well taken. There is nothing in this case to show that he has ever done any thing except as the attorney in the cause, or that he has done any thing more than it was his duty to do as such attorney. If he, in behalf of his client, made use of arguments before the referees or the court which will not bear the test of legal scrutiny, it can form no ground whatever for making him a party here, and subjecting him to the expense of defending a chancery suit. The complainants have proved that they acted under the advice of counsel, throughout. And it is not pretended that such counsel was not as competent to understand and protect their rights as Western was to defend the claims of their adversary. I can conceive no motive for making the attorney a defendant in this case, unless it was to deprive his client of the benefit of his testimony, if it should be needed. The decision of the vice chancellor was therefore correct in dismissing the bill as against him, with costs.

As the judgment was in the name of the sheriff, he was properly made a party to a bill to set it aside, although he might have no personal interest. And if he is subjected to costs in consequence of an improper proceeding being carried on in Ms name, he must look to the party whom he has permitted thus to use his name for his indemnity. As the judgment on the cognovit is against the bail in the replevin bond, as well as against the complainants, they should also have been parties to the suit; otherwise the defendant Depew may be compelled hereafter to litigate with them the same questions which he is now contesting with their co-obligors in the bond. (Bailey v. Inglee, 2 Paige’s Rep, 278.)

The first ground taken by the complainants in this case is, that they acted under a mistake by supposing this was a reference under the statute, and that it was not in the nature of an arbitration. This ground, however, is not sustained by the proof in the cause. The solicitor who drew the bill in this case was their counsel throughout, and swears he advised with them at the time the agreement was made to refer the question of title. And the papers signed by him and his clients at that time, show that he could not have been so ignorant as to suppose this was a simple reference of accounts under the statute. He must have known that the judgment for the defendants in' the replevin suit would preclude all inquiry as to the right of property in the suit on the replevin bond, unless the parties prosecuting the last mentioned suit made a special agreement to submit a question to the referees which could not be legally raised on the trial of that cause. The cause stood for argument on a demurrer, at the time of the reference. And no lawyer could be so'ignorant as to suppose that was a proper case for a reference under the statute, although it might be a proper case for an arbitrator to decide upon. I cannot find a particle of testimony in this case to induce me to suppose that the complainants and their solicitor did not understand what the legal effect of this agreement was, at the time it was entered into, as well as they do now. And in the absence of all proof to the contrary, I must presume neither party was acting under any mistake on that subject. As to the referees, I also presume they decided the question, as to the admissibility of the witness, according to their honest convictions as to what was right and proper. If such was the case, they probably would have made the same decision if they had known that, their decision of the question would be final.

If tlie rule of reference was not in conformity to the agreement, the complainants should not have proceeded under if, but should have applied to set it aside. 1 cannot see, however, that the variance from the stipulation was at all material, as all the referees actually signed the award. An arbitrator who has signed an award with his co-arbitrators cannot be al-' lowed to contradict this solemn act, and to say that he did not concur in it. The signing of the report was an actual concurrence therein. And arbitrators are not permitted to make mental reservations, in opposition to the written evidence of their decisions, any more than a juror who has concurred in a general verdict would be permitted to swear he was not convinced it was right. I do not understand the rule to go so far as to require that all the arbitrators should concur in the decision of every question which arises, as to the admission or rejection of every piece of evidence, on the hearing of the cause. It is sufficient, if all actually hear the cause and join in the award which is finally made. There was nothing objectionable in relation to the conduct of either of the referees, unless it be an objection that they made a mistake in their judgment upon the law, or the facts, of the case. One of the parties applied to Mr. Ostrander, whom he had seen once or twice only, but with •whom he had no particular acquaintance, and asked him if he would consent to be an arbitrator in the cause. It was perfectly natural, under such circumstances, that he should enquire as to the general nature of the controversy in relation to which his services were wanted. It is what usually occurs in such cases. And I presume the same explanation took place between the complainants and the arbitrator selected by them, unless he had previously been informed as to the nature of the litigation.

The simple question, therefore, which is presented in this case, as to the validity of the award, must be, whether a mere mistake in judgment of the arbitrators upon a legal question, as to the admissibility of a particular witness, in a case admitting of some doubt, at least, is sufficient evidence of improper conduct in the arbitrators to set aside their award in a court of chancery. If such is the law of this court, then indeed is the right of parties to submit their differences to arbitrators a curse, rather than a blessing. If every party who arbitrates, in relation to a contested claim, to save trouble and expense, is to be subjected to a chancery suit, and to several hundred dollars cost, if the arbitrators happen to err upon a doubtful question as to the admissibility of a witness, the sooner these domestic tribunals of the parties’ own selection are abolished the better. Such a principle is wholly inconsistent with common sense, and cannot be the law of a court of equity. There is, therefore, nothing in the proceedings before the arbitrators which could justify any court in setting aside those proceedings for fraud, or improper conduct, or any other irregularity.

If the testimony of Wheeler had been admitted, and he had testified as he has done in this cause, the result probably must have been the same ; as his testimony.is wholly inconsistent with that of several other witnesses, and parts of it are inconsistent with the admissions of one of the complainants, as proved by the defendants. I think the balance of the testimony is in favor of the belief that these complainants had indiscreetly permitted Wheeler to use their names to carry on business in such a manner as to keep his property out of the reach of Depew’s execution; and the result to them has been, what generally occurs in such cases, that they have been drawn into this ruinous litigation without any personal benefit; and which litigation they have persisted in as indiscreetly as it was originally commenced.

I am satisfied the decree of the vice chancellor in this cause was perfectly correct, and it must be affirmed, with costs.


text:
    Cross vs. Cross.
    February 21.
    In a suit commenced in chancery by the husband for a divorce upon the ground of adultery, the court has power to decide upon the legitimacy of the children begotten and born after the commission of the adultery charged in the bill.
    The legitimacy of a child begotten before the commencement of the suit for a divorce, must be presumed until the contrary is shown ; and such presumption can only be rebutted by the most conclusive evidence that the husband was not the father of tire child.
    Sexual intercourse will be presumed where personal access is not disproved, unless such presumption is rebutted by satisfactory evidence to the contrary.
    Where sexual intercourse is either proved or presumed, the husband must be deemed the father of the child, unless it was either physically or naturally impossible that such intercourse should have produced such child.
    Although actual adultery with other persons is established at or about the commencement of the usual period of gestation, yet if access by the husband has taken place, so that by the laws of nature he may be the father of the child, it must be presumed to be his, and not the child of the adulterer.
    The admissions of the rvife of the non-access of her husband will not be received as evidence to bastardize her issue.
    The complainant filed his bill in this case to obtain a divorce, on the ground of adultery, and to .obtain a decree declaring a child of the defendant illegitimate, bom after the commission of the offence charged in the bill. The bill was taken as confessed against the defendant, and was set down for hearing on the master’s report of the testimony, as to the facts and circumstances charged in the bill.
    ./. Powers, for the complainant.
   The Chancellor.

The fact of the adultery, as charged in the bill, is sufficiently proved, and the complainant is entitled to the usual decree dissolving the marriage contract, so far as it is binding on him. The only question is as to the legitimacy of the child born in the fall of 1831. The revised statutes have authorized the court in cases of this kind to decide upon the legitimacy of the children born and begotten after the commission of the offence charged in the bill. (2 R. S. 145.) But as these questions are to be decided upon the proofs taken in the suit between the husband and wife, it becomes the duty of the court to examine those proofs with the most rigid scrutiny, in order to prevent the rights of innocent children from being sacrificed by the misconduct or negligence of their parents. The statute has very properly declared that the legitimacy of all children begotten before the commencement of the suit for a divorce, shall be presumed until the contrary is shown. And such presumption can only be rebutted by the most satisfactory and convincing proof that the husband was not the father of the child. The ancient ride, that the husband must be presumed to be the father, if he was within the four seas during any part of the usual period of gestation, has been long since exploded ; and, as Justice Gross says, “on account of its absolute nonsense.” But the modem rule, which is marked out by its good sense is, that to bastardize the issue of a married woman, it must be shown beyond all reasonable doubt that there was no such access as could have enabled the husband to be the father of the child. The rules of law, as laid down by the judges on the questions propounded to them by the house of lords, in the Banbury Peerage ease, "(1 Sim. Stu. Rep. 153,) are substantially these : Sexual intercourse is to be presumed where personal access is not disproved, unless such presumption is rebutted by satisfactory evidence to the contrary ; and where sexual intercourse is presumed or proved, the husband must be taken to be the father of the child, unless there was a physical or natural impossibility that such intercourse should have produced such child. (See The King v. Luffe, 8 East's Rep. 193; Head v. Head, 1 Sim. & Stu. Rep. 150; Turner & Russ. Rep. 138, S. C. on appeal.) Although actual adultery with other persons is established, at or about the commencement of the usual period of gestation ; yet, if access by the husband has taken place, so that by the laws of nature he may be the father of the child, it must be presumed to be his, and not the child of the adulterer. But even that presumption may be repelled, where, according to the course of nature, the husband could not be the father of such a child ; as in Will Whisterlo’s case, where it was attempted to charge a black man as the father of a white child born of a mulatto woman. These rigid roles in relation to questions of legitimacy, are necessary to be adhered to for the protection of the rights of those who are attempted to be bastardized, without any fault on their part, and to preserve the peace of families. And it is particularly important that they should be strictly enforced under this statute, where, in almost every case, the child whose legitimacy is brought in question is of a very tender age, and wholly incapable of defending its rights.

These considerations have induced me to look into the proofs in this case with the utmost care. And in deciding thereon, I lay entirely out of question the declarations of the mother that the complainant was not the father of this child. Her admissions as to her own guilt and misconduct may be admitted, in-connection with other satisfactory proof, to establish the fact ofadultery. But they cannot be received to establish the fact of non-access by the husband at or about the period of concepl ion, and thus to bastardize her issue. Independent of that testimony, however, I think there is satisfactory evidence here that the complainant coidd not have been the father of this child. The wife had become perfectly abandoned and worthless, and had separated from her husband more than three years before the birth of the child. It appears from the testimony of the complainant’s mother, who lived in the house with him during all that time, that the defendant never called at the house more than two or three times after the separation, and then only for a few minutes in the day time, when the witness was present; that for 18 months before the birth of the child, the defendant had lived in another town, and had not even been to the complainant’s house to visit her children during that time; and that the husband had entirely broken off all intercourse with her from the time of their first separation. It also satisfactorily appears that the defendant had sexual intercourse with several persons after her separation from her husband, and with two of them about nine months previous to the birth of the child ; and with the one who is supposed to be the father, repeatedly.

The decree must therefore declare that the complainant is not the father of the child, of which the defendant was delivered in the fall of 1831, in the bill in this cause mentioned ; but that the said child is illegitimate and a bastard.


author: The Chancellor

text:
    Satterlee vs. Bargy.
    February 23.
    A defendant may give notice of an application to dissolve an injunction, immediately upon the service of his answer, without waiting the ten days allowed to the complainant to except; but if exceptions are duly served within the time prescribed by the rule, it will be an answer to the application.
    But a party is not at liberty to give notice of an application to dissolve the injunction for a time which is within the ten days allowed by the 38th rule, for excepting to the answer.
    This was an application to dissolve an injunction and to discharge a ne exeat, upon the bill and answer.

      L. H. Palmer,

    for the complainant, objected that the application was irregular, as the ten days allowed for excepting, according to the 38th rule, had not expired.

      J. Rhoades,

    for the defendant, cited the case of Pell v. Gasman, decided in November, 1830, in which the chancellor said the defendant might, at the time of serving his answer, give notice of a motion to dissolve the injunction; but that if exceptions were duly served, it would be an answer to the application.
   The Chancellor

said, that decision was not intended to authorize the defendant to give notice of the motion for a time which would not allow the complainant the full period of ten days, prescribed by the 38th rule, to file and serve his exceptions, before the motion could be heard. That it was irregular to give the notice for a day which was within the time, limited by that rule, for excepting; as, by the next rule, the motion could not be heard within that time.


text:
    Rankin vs. Atherton.
    March 6.

      f Where the agent of the owner of a lot of land contracted to sell the same, and also an additional piece which his principal did not own, but which both the agent and purchaser supposed to be his, and the deed included such additional piece, and was executed by the owner of the land without his discovering that the deed included this additional piece ♦, held, .that a bill filed by the principal to restrain the purchaser from proceeding at law upon the covenants of seisin, and to correct the mistake in the deed, could not ■ be sustained.
    The bill in this cause was filed to correct an alleged mistake in a deed from the complainant to the defendant; and to restrain the latter from proceeding at law on the covenants of seisin. The bill stated, in substance, that the complainant’s agent contracted with the defendant to sell him the undivided . half of a certain tavern stand at Ticonderoga, being part of lot ' number one; that the land contracted for and intended to be , sold was the whole lot, except three several pieces reserved out of the same in the deed by which the complainant acquired his title; but that the scrivener, jwho filled up the deed to the defendant, which was executed by the complainant in New-York, ,_by mistake, excepted only one of those pieces. The bill also alr leged that the defendant had not only refused to release or re-. ; convey to the complainant the two pieces of land included in ■k the deed by mistake; but on the contrary, that he had brought an action at law, to recover damages against the complainant, ' on the ground of the want of seisin in him as to those two pieces. On the coming in of the answer the defendant moved to dissolve the injunction.

      Isaac Hamilton, for the complainant.

      James King, for the defendant.
   The Chancellor.

The answer of the defendant contains a full denial of all the equity contained in the bill, except as to the mistake in not excepting the Justus Bailey lot from the lands conveyed by the deed. Although the complainant has sworn positively as to the bargain which was made between liis agent and the defendant, and as to several other matters stated in the bill, yet it is evident from the very nature of those allegations that he could not have intended to swear they were true of his own knowledge, as he has in fact done. This is only another instance of the carelessness, .with which parties ! sometimes allow themselves to swear to bills, answers, &c. in i this court. Taking the charges in the bill to be, what the complainant only meant to allege, that he had been informed and believed his agent made a verbal agreement to sell only the particular piece which the complainant owned, there is no material conflict between the oaths of these parties, to the bill and to the answer. In that view of the facts, the case as presented by the bill, and by those parts of the answer which are directly responsive to the allegations contained therein, would be this : The complainant and the representatives of Heyer owned lot number one, except three pieces thereof, marked on the diagram annexed to the answer, as A C and D. The agent of the complainant supposing him to be the owner of C as well as of B, which he actually owned, contracted to sell the same to the defendant, as parts of the tavern stand ; the defendant understanding it in the same way, and intending to contract for the whole. Owing to the mistake of the person who drew the deed, the bargain was consummated without this error being discovered. AncTit was not discovered until it had probably become impossible to rescind the sale and restore the parties to the situation in which they formerly stood. As no blame whatever can attach to the defendant in this suit, and as he has paid what he agreed and intended to pay for two pieces of land, and has only gotten a valid title to one, he is entitled, on the covenants in his deed, to recover back a proportional part of the consideration money. And if the complainant has parted with his property for less than he intended to ask for it, in consequence of such deduction, the loss has arisen either from his neglect to inform his agent of the precise extent of his land, or from his own neglect in not reading the deed before he executed the same and sent it to the agent to be delivered. Situated as these two pieces of land were, lying in common, it was perfectly natural that both the agent and the defendant should suppose they belonged to the complainant, and were tobe sold as one piece.

For the decision of this motion it is not material to enquire whether any blame can attach to the defendant in relation to the Justus Bailey lot. But if the allegations in the answer are true, the complainant will subject himself to useless expense by proceeding any further in this suit. The account which the defendant gives of that part of the transaction is, that he discovered, when the deed was delivered to him, that it included lot A which he had neither bought, nor intended to buy. That he then informed the agent of the mistake; but the agent told him it would make no difference, as it could be understood that his line was to run 30 feet east of the bam. That the agent then called witnesses, and pointed out to them where that line of the purchase was intended to be, and that it embraced all of lot number one west of that line except lot D, and extending to the outlet of the lake. And the defendant, on the hearing of this application, also offered to read an affidavit of a witness, who was called by the agent at that time, to sustain this part of his answer. The defendant also swears in his answer, that he has always been ready and willing, and has repeatedly offered to reconvey, or to release the covenants in the deed, so far as relates to the Justus Bailey lot. And the same offer is repeated in the answer.

The defendant does not ask to have the injunction dissolved so far as it restrains him from claiming any damages on account of lot A. But as the amount of the recovery must be regulated by the relative value between the lots intended to be purchased when compared with the whole purchase money mentioned in the deed, the defendant may be embarrassed, on the trial at law, from the circumstance that lot A is included in the deed, and is apparently a part of the land for which the purchase money was paid. The injunction must be absolutely dissolved, to enable him to show that the title to that lot also failed, otherwise an undue advantage may be taken of him on the trial; but he must be restrained from claiming any more damages on the trial than he would have been entitled to recover if lot A had been actually excepted out of the conveyance.


text:
    In the matter of Carter, an habitual drunkard.
    March 6.
    Where the court designates the master to take an account between a committee of an habitual drunkard and the estate, it is irregular and improper for the parties to change the master, for the discharge of this duty, without the sanction of the court.
    If the committee of an habitual drunkard neglects to file an inventory of the estate, or to render his accounts regularly under oath, as required by the 154tli rule, in the settlement of his accounts every presumption will be taken most strongly against him.'
    The committee of an habitual drunkard, who holds a mortgage against the estate, cannot, without the sanction of the court, enforce it by proceedings of foreclosure under the statute.
    Where the committee has been guilty of gross negligence, he will be decreed to pay the costs of the proceedings against him to obtain his removal and the settlement of his accounts.
    The petition in this case stated among other things, that in 1822, R. Carter was found to be an habitual drunkard, and incapable of conducting his own affairs, and that B. Eldridge was appointed his committee. That Carter at that time owned a house and lot, on which the committee held a mortgage, executed a few months before, and that he was also possessed of a large personal estate. That the committee had neglected to keep any account, or to file any inventory of Carter’s estate ; that he had kept the monies and proceeds of the estate mingled with his own, and had wasted the estate; and that he had advertised, and was about to sell the real estate under his mortgage by a foreclosure under the statute. Upon the presentation of the petition to the chancellor, and upon the hearing of the parties, it was referred to D. Andrus, one of the masters of this court, to ascertain and report upon the truth of the principal matters and facts alleged in the petition, and to take an account between the committee and the estate of Carter; with liberty to the petitioners to examine the committee on oath, before the master, as to the matters of the reference. In the mean time the committee was prohibited from interfering with the estate, and from all further proceedings to foreclose the mortgage by advertisement under the statute. The solicitors for the petitioners and for the committee, by a stipulution between themselves, and without any authority from the court, agreed to change the master, who had been designated by the court to examine as to the matters of the petition, and to take the account. A report was accordingly made by such substituted master,' to which both parties took exceptions ; and the case was brought on to be heard upon the exceptions, and for a final order on the petition.

      Jl. Stewart, for the petitioners.

      J. Seelye, for the committee.
   The Chancellor.

There has been very great irregularity in conducting the pro-eedings in this case, which it is'impossible now to correct. The formal answer filed to the petition was wholly irregular and unauthorized; and the statements therein cannot be received as evidence in favor of the committee, although they may be considered as directly responsive to the allegations in the petition. The order of the court authorized the petitioners to examine the committee, on oath, before the master. And so far as he has responded to the interrogatories put to him by the counsel of the petitioners on the reference, the answer to such questions are evidence in his favor. But even such answers are not evidence as to any matters not directly or properly responsive to the inquiries thus made. In a case of this kind, where the rights of Car-' ter were under the special care and protection of this court, it was also irregular and improper for the parties to change the master, who had been designated by the chancellor for the performance of this duty, without the express sanction of the court. It is doubtful, at least, whether those parties who were competent to judge of, and to protect their own rights, have not deprived themselves of the power to except to the decision of the person whom they have authorized to arbitrate these matters between them, and who was not legally authorized to execute this order. But as both parties have undoubtedly acted under a mistake in this matter, and there is ¡fib doubt as to the ability and integrity with which the substituted master has executed the order, under their stipulation, I shall proceed to dispose of this matter upon the merits.

There has been gross neglect, if not misconduct, on the part of this committee in the manner in which his accounts of this estate have been kept, and in not filing an inventory, as required by law. The act of the 20th of March, 1801, (1 R. L. of 1813, 147, § 2,) made it the duty of the committee of a lunatic to file an inventory of the whole real and personal estate on oath, with the register of this court, within six months after his appointment. A similar jurisdiction to that exercised by this court in the cases of lunatics was, by the act of March, 1821, conferred upon the court in relation to the estates of habitual drunkards. It was the duty of this committee, before he undertook to execute such a trust, to ascertain what he was to do in the faithful execution thereof. And it would be dangerous to sanction the principle that an officer of this court is to be excused for a palpable neglect of duty, on the ground that he was so ignorant as to be wholly incompetent to the discharge of the trust conferred upon him. By the 45th rule of the court, which was in existence at the time this appointment was made, and which must have been furnished to this committee or to his solicitor at that time, he was required to render periodical accounts of his trust; which he has wholly neglected to do. But even admitting that he was ignorant of his duties, under the statute and the rules of the court, I cannot believe he did not know it was necessary for him to make some memorandum or statement of the property, effects, notes, &c. of Carter, so that he might be able to render an account thereof, according to the conditions of his bond. In consequence of this gross neglect on the part of the committee, every thing in relation to this estate must be construed most strongly against him. Whereas, if he had filed air inventory and had rendered his accounts regularly, every presumption in reference to the fairness and justness of those accounts would have been permitted to operate most strongly in his favor. Under the circumstances of this case, if the counsel for. the petitioners had produced the inquisition finding the value of the personal properly to amount to a specific sum, or if there were’any other data by which the court could be governed in-fixing the amount, I should consider it my duty to charge this committee with the utmost farthing which this estate might have been made to produce by proper care and management. I have some doubts whether I ought not to charge him with the balance of every account which stood open upon the books of Carter, at the time he assumed the trust, and with every note identified as having come to his hands, which he has not shown affirmatively was not due and collectable. But I fear that in doing so, I should do greater injustice to him than I can do to the estate, by leaving the report as it now stands ; from which it is evident that the master has, in most cases, thrown the burthen of proof on the petitioners.

A few of the exceptions on each side I shall briefly consider. The first relates to the money which Carter had on hand at the finding of the inquisition. It appears this money, amounting to $250, was in the hands of the wife, who, with the consent of Eldridge who was present, consented to give to Carter $100 of this money, provided he would deliver up his notes and accounts then in his possession. This was nearly a month before Eldridge was appointed the committee; and he had therefore no control over this money, and had no legal right to take the notes and accounts from the possession of Carter. The paying over the money was the act of the wife, and the interference of Eldridge was only as a neighbor and a friend. He cannot therefore be charged, as the committee, for the loss of this money; although this court would probably have protected him, or any other friend of the family, who in good faith had taken these notes and accounts by force from the possession of the drunkard, to save them from destruction. The residue of the money, which remained in the hands of the wife at the time of Eldridge’s appointment, he had a right to claim; and it was his duty to receive it from her and to apply it to the payment of the debts. Upon a proper application, this court could have compelled her, or any other-person who was holding the property of the drunkard without any pretence of claim, to deliver the same over to the committee. I think, however, from the evidence in the case, it may fairly be presumed that this money has been all expended for the benefit of the family, when the wife and children were driven from home by the violence of the drunkard, and at other times. And as the rights of creditors are not concerned, I see no reason for charging the committee with any part of the money left with the wife, although he evidently neglected his duty in not receiving it, and seeing to the proper disposition thereof himself.

I do not see any sufficient evidence in the case to charge the committee with the notes sold by Carter after the finding •of the inquisition, or to satisfy me that the committee received any more notes than the master has held him accountable for. Beekman’s testimony is too loose and indefinite to authorize the court to charge the committee with any specific amount, in notes, as having been received by him. If it had distinctly appeared that the committee had been seasonably informed of the sale and giving up of notes by Carter, after the finding of the inquisition, as all those acts were absolutely void, he would have been chargeable with neglect in not pursuing the securities into the hands of those who had thus improperly obtained them. The committee was probably negligent in not making the proper inquiries as to these matters immediately after his appointment; but, from the testimony, I cannot say that if inquiries had been made, he would then have elicited sufficient information to have enabled him to save any thing for the estate. According to Beekman’s own account he was concerned in the fraud, in buying from this drunkard his notes, after the finding of the jury; and it is therefore hardly probable that he gave the committee any information as to that fraud, in time to enable him to charge the witness with the amount in a court of justice.

The committee was properly charged with the value of the one horse waggon, as he has suffered it to be applied in payment of a drunkard’s bill, of Carter, which never could have been collected. The bill for Carter’s work also belonged to the committee; and he had no right to permit either to be set off against the grog bill. Carter was not legally competent to contract any debt, so as to make it a legal subject of set off; and the tavern bill of a drunkard cannot form the foundation of an equitable claim. I think, however, the claim for interest should be disallowed, on the ground that the master has in fact allowed about the fair cash value of the waggon, including interest. In this case, I do not think the nominal value of the waggon was its actual value; but the committee was chargeable with interest, which makes the amount allowed by the-master about the proper charge.

The exception of the committee that the master has not allowed the whole $40, paid by him to J. Seelye, cannot be-sustained. The statute, under which the proceedings were had, expressly limited the expenses, chargeable oil the estate of the drunkard, to $25 when there was a traverse of the inquisition, and to $15 where there was none.

The charge for money paid Huff on Carter’s note was wholly unauthorized. Even if that note was taken into consideration hi thejumping settlement made between the attorney of Huff and Eldridge, as to their own private accounts, no data are furnished by which any thing can be allowed to the committee in relation to that settlement. It is pretty evident, however, that Eldridge obtained at that time' all that he had any equitable right to claim as between him and Huff’s assignees, without reference to the Carter note. If any thing-was actually due on the Carter note, the assignees of Huff had as much claim therefor, upon the estate of Carter, after as before they allowed the claim of Eldridge. No receipt was given by the assignees, and this claim was not even mentioned to them, having been deducted from any balance due to Eldridge in his own right.

The charge of $250 for boarding the wife and family of Carter was also properly disallowed. Some part of the charge must run back even beyond the time when the accounts of Carter and Eldridge were settled, previous to the finding of the inquisition. That part which has taken place since the appointment of the committee stands on no better footing. It was a gross neglect of duty on the part of the committee to permit this brutal husband to occupy the property committed to his care and management, and to destroy and waste the same, or to use it for the purpose of supplying himself with liquor, and to permit him to drive his wife and family from-their house in his fits of intoxication. The whole object of the appointment of a committee, in this case, was to preserve the property, and to protect the family from the effects of the drunken fits of Carter. But from the manner in which this estate has been managed, it certainly would have been safer in the hands of Carter, with his occasional drunken fits, than under the management of this committee. By the neglect of the committee, there is reason to believe a considerable part of the property has been wasted. The committee and his family have, out of the proceeds of a part of the property, furnished Carter with the means of intoxication; and in his fits of intoxication, he has been allowed to destroy and waste the rest. It is evident that this account, and also that referred to in the ninth exception, were not entered on the books of the committee at the time the services purport to have been rendered ; and that they have been trumped up for the purpose of sustaining the unjustifiable proceeding of sacrificing the real estate under the mortgage.

Perhaps some few of the exceptions on each side are technically well taken; but as both parties have requested the court to dispose of this case without sending it back to a master, I shall not attempt to go through all of the exceptions, or to make any special order as to the allowance or disallowance of each. The result of such a proceeding would be to charge the committee with something more than has been allowed by the master, after allowing all exceptions properly taken on his side. But I think it would not be of sufficient benefit to the family of this unfortunate man, to justify the extra trouble and expense of re-stating the accounts. I shall therefore direct the master’s report as to the facts in the case, and as to the balance of $15,19, by him reported due to the estate, to be confirmed ; but without deciding as to the correctness of each item in the account, from which he has ascertained that balance to be due. By any other course it would be impossible to do justice between these parties, without sending the accounts to a new master to be re-stated on different principles ; the master who took the accounts being no longer in office.

The proceedings by the committee to foreclose the mortgage, when there was nothing due thereon, are wholly unjustifiable. Even if the whole amount had been due, this was not a case in which the committee, so long as he retained that trust, could foreclose the mortgage, except under the express sanction and direction of this court. His interest as mortgagee conflicted with his duty as committee, and the statute foreclosure, under such circumstances, could not be resorted to. As he has gone on since he had notice of the intention to present this petition, and has sold the property, and caused it to be bid in for his own benefit, he must, at his own expense, execute a re-conveyance to the drunkard, and cause the same to be recorded in the proper office, with proper covenants to be inserted in the deed, that he has neither done or suffered any act by which the title to the property has been or may be encumbered or impaired. And he must cause the bond and mortgage to be cancelled, and the mortgage to be discharged from the record. He must also be immediately removed from his trust as committee, and within thirty days after notice of the order, he must pay to the register of this court the sum of ,$15,19, so found due from him by the master, with interest thereon from the date of the master’s report; and also deliver to the register the bond and mortgage duly cancelled, and the deed of re-conveyance duly recorded as aforesaid.

Under the circumstances of this case, as all the costs and expenses to which this estate has been subjected have been owing to the gross negligence if not the wilful misconduct of this committee, I should be doing injustice to the petitioners, and an injury to the community, if I did not charge him with the taxable costs of these proceedings. The counsel for the petitioners also asks that the committee may be charged with a reasonable counsel fee to remunerate him for his services on this protracted investigation. That, however, would be going farther than I feel disposed to go in this case. It is obvious that even the taxable costs will be very heavy ; and I think neither party should be allowed costs on the exceptions to the master’s report. But the solicitor for the petitioners will be entitled to the usual costs, as upon a special motion, on his application for this final order on the coming in of that report.

It must also be referred to one of the masters of this court residing in the county of Otsego, to enquire and report who would be a suitable and proper person to be appointed committee of the person and estate of Reuben Carter, and to approve of two sufficient sureties for such committee in the sum of $1000 each. The wife of Carter must have notice to appear before the master, and be permitted to name a suitable person as committee, and any of the adult children of the drunkard are to have the like permission. And upon the appointment of the new committee, Bamarbas Eldridge is to deliver over to him, on oath, all the books, papers and property belonging to the estate, together with all monies which have come to his hands, as such committee, since the date of the master’s report which has been made in this matter.


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    Bolt vs. Rogers and wife.
    March 6.
    Where two or more persons engage in a fraudulent transaction to injure another, neither law or equity will relieve them, as against each other, from the consequences of such misconduct.
    An agreement by an administrator to convey the real estate of the intestate, previous to obtaining the surrogate’s order of sale, and in anticipation thereof, is illegal and void.
    This was an appeal from a decree of the vice chancellor of the fourth circuit, allowing a demurrer to the bill, for want of sufficient equity therein to sustain the suit. The defendant H. Rogers was the executrix of Eber Weed, her late husband; and by his will she was entitled to the use of his whole farm until his youngest child arrived at the age of 21, and to the use of one third thereof for life. She also had a lien upon the farm -of the complainant, her brother, under the will of their father. An agreement was entered into between the complainant and his sister to exchange farms, and she, as the executrix of her late husband, undertook to procure the sale of the Weed farm under a surrogate’s order, so as to give Bolt a valid title to the same; and he was to allow her $1000 for the farm, in the exchange. A false and fraudulent account, against the estate of Weed, was accordingly made up by the executrix, and an order was obtained to sell the farm for the payment of debts. The farm was bid off by the complainant for $600, and was conveyed to him under the surrogate’s order; and he conveyed his own farm to her in exchange, allowing her the $1000 for the Weed farm. The heirs at law of Weed filed their bill in the late equity court of the fourth circuit, to set aside the sale made under the order of the surrogate; in which both of the parties in this cause were made defendants. Bolt suffered that bill to be taken as confessed against him ; and the cause was heard on pleadings and proofs, as against Rogers and wife. The court decreed that the proceedings and orders of the surrogate, and the conveyance by the executrix to Bolt, so far as it affected the rights of the heirs of Weed, should be set aside, and held for naught; but without affecting the conveyances between Mrs. Rogers and Bolt, so far as respected their own interests in the premises; and reserving all rights as between the defendants in that suit. The complainant in this suit alleged that he was imposed upon by the executrix, and that he supposed she had expended all the personal estate of Weed in payment of his debts, which she falsely represented to be the case. He therefore prayed that the exchange between Mm and the executrix might be rescinded, and that the defendants might be decreed to reconvey to him his farm, &c.

      W. L. F. Warren,

    for the complainant. The surrogate’s sale having been decreed fraudulent and void, the consideration for the complainant’s farm failed, and he has a just claim upon the defendants for a reconveyance of the same. The cases referred to by the vice chancellor as the basis of his opinion, are all decisions at law. (3 Cowen, 339. Norman v. Cole, 3 Esp. N. P. Rep. 253. Langdon v. Hughes, 1 Maule & Selw. 594.) We contend the rule is different in equity. Not one of these cases is like the present. The agreement set forth in the bill was not illegal. It does not violate the rules of public policy. No case can be found where it has been held that an agreement with a trustee to bid off the trust property at its full value, was illegal. Such is the agreement here. In the cases in Jones v. Caswell, (3 John. Cas. 32,) and in Doolin v. Ward, (6 John. R. 194,) the agreement of the parties was to not bid, against each other. Here there was no such agreement; but an agreement which had the tendency to increase the amount of the sale. No person was to be injured or defrauded by it. But if the agreement should be void at law, it does not.follow that it would be so in equity. Even at law, a party who, by means of imposition or fraud, ignorantly engages in an illegal contract, can recover back the money advanced by him upon it. (Drummond v. Deey, 1 Esp. Rep. 153.) In this case Lord Kenyon said, “ that a parliceps criminis could recover back money advanced in an illegal transaction, if he ignorantly engaged in it, by means of the imposition or eraft of another.” The rule of in pari delicto does not apply in a court of chancery. (Smith v. Bromley, Dougl. 697, note 3.) In this court no party can take advantage of his own wrong or turpitude. (Eden. on Inj. 16. Osborne v. Williams, 18 Ves. 379. Lord St. John v. Lady St. John, 11 Id. 535.) But in this case the contract is still executory; if so, either party may rescind it. (Lowrie v. Bourdieu, Dougl. 470.) We are not concluded by the decree in the suit between the heirs at law of Weed and the parties to this bill. The matters in controversy between the parties to this bill were not in litigation in that suit. The complainant was not bound to see to the proper application of the purchase money of the farm sold under the surrogate’s order.

      J. Ellsworth,

    for the defendants. The contract set forth in the bill is illegal upon its face. The complainant and the defendant HannahRogers, for the purpose of making an exchange of farms, procured a surrogate’s order to sell the land of the testator Weed. In this way they used the forms of law to effect such exchange, and thereby deprived the infant heirs and devisees of Weed of their patrimonial estate. The contract for the sale being against public policy, is absolutely void, both at law and in equity; and the law will leave the parties where it finds them, and will aid neither. But the complainant was not innocent in this transaction. He cannot pretend that by this sale, money was raised to pay debts; for the consideration agreed to be given for the farm sold was land, not money. A palpable fraud was committed by him and his sister upon the heirs of Weed. He was also one of the appraisers of the personal property of Weed, and as such estimated the property very low, with the view of deceiving the surrogate, in order to procure a sale. The bill filed by the heirs alleged fraud against the complainant, which bill he permitted to be taken as confessed against him. Where a decree declares a deed fraudulent in fact, no release or reconveyance will be directed. The consideration of the complainant’s farm conveyed by him to the defendant Hannah Rogers, has not entirely failed; for she had an interest in the farm sold, under the surrogate’s order, which was conveyed by her to the complainant. The vice chancellor, in the suit commenced by the heirs of Weed, only set aside the proceedings so far as they affected them. If a contract is contaminated by an illegal act in part, the taint extends to the whole. (Armstrong v. Toler, 11 Wheat. 258.) The complainant cannot be permitted to allege his own fraud. This is not an executory contract; it is executed, as the parties have respectively gone into possession under it. All contracts to prevent competition at a public sale are illegal, both in equity and at law. The contract made between Bolt and his sister was void, because it was against the principles of public policy, and because it was fraudulent in fact. If parties will persist in going on in defiance of law, they must abide the consequences. If the agreement was valid, Bolt should have filed a cross bill in the other suit against the defendant Hannah Rogers and the heirs of Weed, and had his rights secured.
   The Chancellor.

If the allegations in this bill are true, the executrix not only committed a fraud upon her children, but also by false and fraudulent representations to her brother, induced him to aid her in the commission of the fraud. But I do not see how it is possible to give him any relief in this case without overturning an established principle of law. Wherever two or more persons are engaged in a fraudulent transaction to injure another, neither law or equity will interfere to relieve either of those persons, as against the other, from the consequences of their own misconduct. Although the complainant alleges that he was himself defrauded by the misrepresentations of the executrix, yet, from his own showing, he entered into an agreement with his sister which he was bound to know was illegal, and a fraud upon her in- ■ font children. In Herrick v. Grow & Brown, (5 Wendell, 579,) the supreme court decided that an agreement by administrators to convey property, which they had not yet procured an order of the surrogate to sell, was illegal and void. In this case the complainant must have known that the property was not sold in good faith, for the payment of the debts of Weed, when the whole consideration on the sale was to be paid in another farm, conveyed to the administratrix in her own right. If the purchase was fair and legal on his part, he should have set up that defence in the equity court, to the suit brought by the heirs of Weed. Had he established such a defence there, the court would have decreed compensation to the heirs out of the lot which the executrix had fraudulently procured in exchange. If both the defendants in that suit were concerned in the fraud, the heirs had a right to elect to have their property restored to them by the fraudulent purchaser, or to have a decree against the fraudulent trustee for the amount received on the sale, or to have the property which she received in exchange for the farm. But the parties to the fraud cannot sustain a suit against each other, either at law or in equity, to set aside the contract as between themselves.

It has been a very common practice for executors, administrators, guardians and other trustees, to make an underhand bargain with a purchaser for their own benefit, and then to impose upon the surrogate, or upon this court, by obtaining a confirmation of their illegal proceedings as upon a fair sale of the property. It is therefore important to the community that it should be well understood that those who lend themselves to such fraudulent practices are not only exposed to have the conveyances to themselves set aside, but that they will have no remedy over against those whose willing instruments they have been in' perpetrating the fraud.

The decree of the vice chancellor is affirmed, with costs.


text:
    Watts & Le Roy, executors, &c. vs. Lawrence.
    March 6.
    Where, upon a bill filed to compel the defendant to discover and deliver over to the complainants a pass book, alleged to belong to them, and which was wanted by them as evidence against him in a suit at law, and the defendant, by his answer, admitted the pass book to be in his possession, and referred to it in such a manner as to entitle them to an inspection of the same, as a part of the answer; Held, that the complainants were not entitled to use the pass book as evidence in their suit at law, separate from the defendant’s answer, previous to a final decree declaring their right to the same.
    Previous to a final hearing of a cause, the court only orders the production of books and papers upon two principles: security pending the litigation, and discovery or inspection for the purposes of the suit in this court.
    This was an application for an order requiting the defendant to deposit with the assistant register a pass book, claimed by the complainants as belonging to them and admitted by tire answer of the defendant to be in his possession, and. particularly referred to in such answer. The object of the application was to enable the complainants to use the same on the trial of an action at law which bad been commenced by them against the defendant.

      B. F. Butler <$• S. v3. Talcott, for the complainants.
    £>. P. Hall fy R. Sedgwwk, for the defendant.
   The Chancellor.

There can be very little doubt as to the equity of this case, from the bill and answer alone. The object of the bill is to obtain a discovery and a decree for the pass book, to enable the complainants to proceed and recover their demand against the defendant in the suit at law. At the final hearing of this cause the complainants may be entitled to a decree declaring them the rightful owners of this pass boob, and directing it be delivered up to them to be used in such manner as they may think proper. But, without taking time to comment upon the numerous cases cited on the argument of this petition, I am satisfied that in this stage of the suit the court cannot decide upon the rights of the parties to this book, or order a delivery thereof, in anticipation of a decree. Previous to the final hearing of a cause, the court only orders the production of books and papers on two principles: security pending the litigation, and discovery or inspection for the purposes of the suit. In this case it is proper, for these purposes, that the pass book be deposited with the assistant register. It is referred to, and made part of the answer; and for that reason, the defendant, when it is produced, has a right to have it annexed to the answer, so that it cannot be used by the complainants in' their suit at law, in the present stage of this cause, except as a part of the answer to a bill of discovery. What would be its effect, if thus produced as evidence before the court of law, it is not necessary for this court to determine. As it is a part of the discovery sought for here, the complainants have the right to have it thus deposited with the answer, as a part of the evidence on which they are to ask for a final decree in this cause.

The defendant-must, therefore, within ten days after notice of this order, deposit the pass book in controversy with the assistant register.. But he is at liberty to have it annexed to the original answer on file, as a part thereof. And in that case the pass book is not to be detached from the answer and no separate copy or exemplification thereof is to be furnished to any person without the further order of the court.