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    Stuyvesant vs. The Mayor, Aldermen and Commonalty of the City of New-York.
    Where the complainant granted to the corporation of the city of New-York, certain lands, for the purposes of a public square, upon condition that such lands should forever he used and appropriated for the purposes of a public square exclusively, and upon the further condition that the corporation should immediately proceed to regulate the lands granted, and should inclose and improve the same in the manner specified in the conveyance thereof; and the corporation joined in such deed, by executing it under the corporate seal, and covenanted to stand seised of the premises for the purpose of a public square, exclusively, and that such corporation would abide by, observe and perform the conditions imposed upon it by the acceptance of such agreement and conveyance; Held, that the corporation was bound to perform the conditions specified in the conveyance, and was liable to respond to the complainant in damages for the non-performance thereof.

      Held also, that the complainant had a right, at his election, to re-enter for a nonperformance of the conditions of the deed; or to bring an action for the damages sustained by the breach of the covenants of the corporation; or to file a bill in equity, to compel a specific performance of those covenants.

      Held further, that the covenant to grade and inclose and improve the premises, was not a continuing covenant, but a covenant which was to be performed within a reasonable time; and that a recovery in an action, for the breach of that covenant, brought after the expiration of a reasonable time to perform the same, was a bar to any further recovery of damages for the breach thereof; and was also a bar to a suit in equity, for the specific performance of such covenant.

      Held likewise, that the covenant that the premises should be held and used for the purposes of a public square, exclusively, was a continuing covenant; and that a recovery in an action at law, for a breach of the covenant to grade, fence and improve the square, was no bar to a suit for the specific performance of the other covenant, and to compel the corporation to prevent the premises from being used for any other purposes than those of a public square.
    Where, from the nature of the relief sought, performance of a covenant in specie will alone answer the purposes of justice, the court of chancery will compel a specific performance; instead of leaving the complainant to an inadequate remedy at law.
    The court of chancery has jurisdiction to compel the specific performance, by the defendant, of a covenant to make erections or improvements upon his own land, for the benefit of the complainant, as the owner of the adjoining property, and who has an interest in having such erections or improvements made; and where the injury to the complainant, from the breach of the covenant, is of such a nature as not to be capable of being adequately compensated in damages.
    Upon a general demurrer to the whole bill, if the complainant is entitled to any relief whatever upon the case stated in his bill, the demurrer will be overruled.
    This was an appeal from a decretal order of the late assistant vice chancellor of the first circuit, overruling a demurrer to the complainant’s bill for a specific performance. The complainant was .the owner of a large tract of land in the city of New-York, bounded by the first avenue on the east and by the third avenue on the west, and extending on both sides of the second avenue from Twelfth-street to Twentieth-street. In the spring of 1836, the complainant having proposed to cede to the corporation about sixty-four lots, in the centre of this tract, for the purposes of a public square, to be bounded by Fifteenth-street on the south and by Seventeenth-street on the north, and to extend one hundred and ninety feet east and the same distance west of the second avenue, the defendants applied to the legislature to authorize the alteration of the plan of the city accordingly. And thereupon the act of the 18th of May, 1836, was passed, directing the discontinuance of so much of Sixteenth-street as was included within the limits of the proposed public square, and establishing a public square to be called Stuyvesant square, with passages of thirty feet in width, upon the east and west sides of such square, for the use of the public. But the fourth section of the act declared that such act should not take effect until the lands contained within the limits of the square should have been ceded, by the owner or owners thereof, to the corporation of the city. In September, 1836, the complainant entered into an agreement with the corporation, under his seal and under the common seal of the corporation, whereby he granted to the corporation the land specified- in the act of the legislature, upon the express condition that such lands should at all times and forever thereafter be appropriated to, and used exclusively for the purposes of a public square, to be called Stuyvesant square; and also upon the further condition that the corporation should immediately proceed to regulate the grounds between Fifteenth and Seventeenth-streets, and extending two hundred and twenty feet on each side of second avenue, and should inclose the lands on each side of the avenue and embraced in the square, in two parallelograms, with a railing similar to the one which should be placed around Union place; and should plant and improve such inclosures similar to the improvements made in Washington square; and that if such lands should, at any time thereafter, cease to be used for the purposes of such public square as aforesaid, then such conveyance, and every thing contained therein, should be void, and the complainant and his heirs might re-enter and hold the premises as of their former estate. And the corporation covenanted and agreed, with the complainant, to stand and be seised of the premises thereby granted, to the use therein declared, according to the true intent and meaning of said agreement ; and that the corporation should and would well and faithfully abide by, observe and perform the conditions imposed upon such corporation by the acceptance of such conveyance and agreement.
    The corporation afterwards took possession of the lands granted, under that conveyance, as and for a public square. The complainant, after setting forth these facts, alleged, in his bill, that with a reasonable and honest endeavor, on the part of the defendants, the grounds which they had by the said agreement accepted and covenanted to regulate and improve, might have been so regulated, inclosed, planted and improved within one year from the date of such grant or agreement at farthest; but that they did not proceed forthwith, nor did they commence the regulation thereof for a long time afterwards; that after great delay a resolution was adopted, by the common council of the city, in January, 1838, and approved by the mayor, directing the street commissioner to advertise for estimates for regulating and inclosing Stuyvesant square, according to the conditions of the acceptance thereof, and to cause the work to be done, under the direction of the committee of public lands and places, as soon as practicable; and that $56,000 was appropriated for carrying that resolution into effect. The complainant further alleged that the premises were not regulated and graded previous to August, 1839, and that they had not, at the time of filing his bill, in December, 1841, been completely filled up, nor had they been inclosed with a railing, or planted or improved in any manner; but that individuals had been permitted to occupy parts of the square with shanties and pig-pens. The bill further charged that the object of his grant of the lands, for the public square, was to improve and embellish that part of the city, and thereby to enhance the value of the adjacent lands of the complainant, and to bring them into use as building lots; that in March, 1839, he commenced a suit at law, in the superior court of New-York, against the defendants, for a breach of their covenant, in not proceeding immediately, or at any time after the acceptance of the grant, to regulate the premises and inclose and improve the same, according to the terms and conditions of the grant and covenant: in which suit he claimed damages for the loss he had sustained by the neglect of the defendants to complete the improvements, &c. within one year, as they might have done, to the amount of $150,000; that the defendants pleaded non est factum in that suit, with a notice that they would give in evidence that they had not broken the covenant contained in the said agreement, but had proceeded with due diligence to regulate the grounds, &c.; that the action thus commenced, by the complainant, was brought to trial, in April, 1840, and a verdict was rendered in his favor for $3056,25 damages; upon which verdict a judgment was afterwards rendered against the defendants; and that they subsequently paid the same. It was further alleged in the complainant’s bill, that subsequent to such verdict and judgment the defendants had been applied to to perform and specifically execute the covenants contained in their agreement, but that they had refused to do so; insisting that by the said suit and judgment at law, they were absolved from all further liability on their covenants, and that they were at liberty either to abandon the square, and let the complainant re-enter upon the land, or to fence and regulate the same, for a public square, in such manner as they might deem proper. But the complainant charged in his bill, that upon the trial of the suit at law the defendants claimed and insisted that no other damages could be recovered, than such loss of income as the plaintiff could show he had sustained, from the time, when the. defendants were in fault, until the time of the commencement of that suit; and that the judge before whom that suit was tried so charged the jury, at the instance of the defendants, and with the assent of the plaintiff’s counsel.
    The bill also stated that, from the difficulty and practical impossibility of showing damages in a suit at law, in such a case, the complainant’s remedy at law was wholly inadequate; that Stuyvesant square still remained in the hands of the defendants, under the conveyance, and was by the act of May, 1836, a public square, which the defendants were bound to regulate, inclose, plant and improve, according to the terms of the cession and of their covenant and of the condition of their estate; and that the complainant had sustained, and was still sustaining, a large annual loss of income, by reason of the defendants having left Stuyvesant square in such unimproved state. The complainant, therefore, prayed that the defendants might be compelled, by the decree of this court, to perform and execute their covenants specifically; and might be decreed to pay to him the damages which he had sustained, since the commencement of his action at law, by reason of their omission and default in performing their covenants; or for such further or other relief, as he was entitled to, under the circumstances of his case.
    The defendants put in a general demurrer to the complainant’s bill, for want of equity, and the demurrer was referred to the assistant vice chancellor of the first circuit, to hear and decide the same. He overruled the demurrer; and from that decision the defendants appealed to the chancellor.

      D. Graham, Jun., for the appellants.
    The act of the legislature of May 18, 1836, contemplates an absolute and unqualified cession. It expressly declares that “ the act shall not go into effect, until the land shall have been ceded to the corporation.” The term “ cede” means a gratuitous conveyance. Let it be granted that the corporation had not power by their charter to purchase, would this language authorize them to purchase, and to insert the $240,000, as an item in their budget of taxes, to be paid by the people at large? and above all, to provide that no part of that taxation should fall on the complainant! What is the onerous condition, inserted in the deed of cession, but purchase money under another form? Is such a conditional cession a compliance with the act? We insist that it is in direct opposition to the act, and is absolutely void. Let it however be conceded, that the authority of the corporation is perfect, the instrument valid, and the cession properly made, what is the legal character of the' deed, and how is it to be construed ? In this deed, the grantor alone speaks, and he grants on condition. The words introducing all the qualifications of an absolute grant are “ Provided always, and this indenture is made upon the express condition.” (2 Co. Litt. 4, Thomas’ ed. Com. Dig. Condition A \,A2.) From the days of Littleton, a uniform current of decisions and commentaries, and the general sense of the bar, every way expressed, have declared these to be the appropriate words to create a condition, when they are the words of a grantor. (2 Hil-liard, ch. BO, § 3. Shop. 122. Hamilton v. Elliot, 5 Serg. & JRawle, 375. Co. Lit. 216, b.) A non-performance of either of the obligations covered by this condition, in reasonable time, would be a breach, and the estate would eease, and that even without 'entering. It is, however, insisted that although this is truly a condition, yet, nevertheless, there are words of covenant following on the part of the corporation, and that the grantor has therefore a right to sue for the condition broken, and seek his remedy in damages under that covenant. (Platt on Cov. p. 17. Geery v. Robson, Cro. Car. 128.)
    The corporation, at the close of the deed, “ covenant with the complainant that they will stand seised of the premises, according to the true intent and meaning of the indenture, and will abide by-, observe and perform the conditions imposed upon them by the acceptance of that deed." This is nothing more than a formal acceptance of the cession, and is to be construed into an acceptance according to the statute. The corporation had no power to accept in any other way. It is impossible to consider this deed as any thing else, but a conveyance upon condition: the title to fail upon a non-performance of that condition, in a reasonable time; and in this view, the question would be necessarily confined to the inquiry, had the complainant a right under the statute to annex such condition to his cession, and if he had, has he any other remedy for condition broken, but re-entry ? A bill for a specific performance, can surely never lie. The complainant treating the obligation of the corporation, expressed in the clause referred to, as a covenant to perform each and every one of the conditions as covenants, upon their refusal to perform them in reasonable time, brought an action of covenant against them at common law, and in declaring, assigned breaches on every condition “ as a covenant,” and in the very words of the condition or covenant; so that the breaches were as broad as the covenant; and then claimed enormous damages, demonstrating, so far as this was competent to do, that he sought entire redress. The verdict obtained in that action is a bar to any additional redress, and as it is set forth in the bill, we can take advantage of it by demurrer, without being put to the necessity of pleading it. (Phelps v. Garrow, 3 Edw. 139.) It is alleged, however, that the conditions thus converted into covenants, are continuing covenants, and that the plaintiff may sue upon them ad infinitum. Of such covenants I am ignorant, and the books are silent. Judgment in an action upon covenants like these, I contend is final. And as a necessary consequence of the verdict and judgment recovered by the complainant, against the defendants, the title of the latter has become perfect and unconditional. According to the complainant’s doctrine, he had a right to elect to consider the estate as at an end, and to re-enter, or to seek damages, admitting the continuance of the estate. The complainant has made his election and must abide by it. No case can be found, where the party, after recovering damages at law upon his entire covenant, or to any extent, has been allowed to file a bill likewise, for a specific performance. Nothing new has occurred since the complainant’s suit at law, except the flat bar of a judgment. All the difficulties, which might make a resort to this tribunal necessary, were as well known to him then as now. The averment in the billj that the defendant, in the court of common law, contended for certain erroneous doctrines and that the court charged accordingly, can never be allowed to control the record. If such erroneous doctrines were contended for and allowed, the complainant should have had them rectified, and so preserved his rights. It is of no importance, what law was contended for, or allowed. What the record in law imports cannot be changed by parol. The state of facts showing the introduction or exclusion of a cause of action, I admit may be shown, but beyorid this the courts have not gone.

      Hamilton Fish, for the respondent.
    The judgment at law, upon the very covenant now sought to be specifically enforced, is conclusive between the parties, as to the binding obligation of the covenant. The defendants appeared in the suit at law, interposed all their legal defences thereto, and submitted to the judgment against them, in such suit. They are now estopped from denying the validity of the covenant; and from alleging that it was a fraud, or an excess of authority. But if the question were open, it could be urged that public squares, in large and populous cities, are not only ornamental to the city but essential to the health and comfort of the citizens, and are in the highest and strictest sense public benefits. If public benefits, they are in some degree and to some extent at least, proper objects of public expenditure; this extent, unless limited by express statute, must be left to the legislative discretion of the municipal body. The city may take ground for public squares, by assessment of loss and damages, as local improvements; they are then bound to use it as a public square, and improve it at the public expense: if so, it is no excess, but a due execution of their powers, to stipulate for it in the deed of cession. The condition in the deed in this case, is really, in substance, the very condition or trust which the law imposes, viz. use as a public square; only adding, what is clearly within the legislative discretion of the corporation, the mode of use and kind of improvement. But it is urged, that there is only a condition in the deed, and not a covenant, to improve the square. If the condition be lawful, the covenant to perform it cannot be unlawful. Where the corporation take land for a street and do not regulate and improve it, they may be indicted or compelled by an appropriate remedy to do so; they cannot say to the parties from whom they take the land, we will let it lie unimproved. So, in relation to a public square, the condition is not a matter of mere election in them, whatever the remedies of the grantor may be. But where they expressly covenant to improve the land they take for a public square, in a manner suitable to its intended use, how can it be said, with reason or justice, that this covenant amounts to nothing — that it is not an actual covenant 1 In a mere condition, the election is with the grantee, to perform or forfeit. Where there is a covenant to perform the condition, the election is with the grantor, to compel performance or to resume the subject. But it is contended, that having treated the obligation as a covenant, and brought an action on it and recovered damages, the contract is merged and the condition is performed. If the condition be discharged, then the defendants hold the land absolutely; and the plaintiff can call on them for nothing. If such is the result, a court of equity will have lost all its antipathy to fraud, to taking undue and unconscientious advantage, to surprise and mistake, to hardship and oppression, if it does not struggle to give relief. It is true, that a recovery at law is a bar to all the damages which could lawfully be given in the suit, properly framed, upon the cause of action. Under this covenant, no more damages could have been lawfully claimed, under any declaration, than the loss of annual value up to the time of action brought. ' The injury here to the plaintiff, by the breach of covenant, was strictly an injury to the realty: it was like the injury of a nuisance, of an overflowing of lands, of a trespass, of shutting up or impeding a way. The complainant has sustained some injury. If the corporation thought fit to improve the square, according to the condition and covenant in their deed of cession, his injury for the future would not have existence. Under these circumstances, the deterioration of annual value was the legal measure of damage; the defendants’ counsel at the trial at law so contended; the judge so decided; and the judgment was by both parties acquiesced in. There is a marked difference between injuries to personalty and to realty. If a trespasser invades my dwelling and destroys my furniture, the loss is complete at once, and admits of perfect compensation. But if he trespasses on my land by a wall, I am not entitled to recover as if the wall could not be removed; the trespasser may remove it, and the damages are therefore limited to the time during which it is an encroachment; and the action may be repeated if the encroachment be continued. (Roswell v. Prior, 2 Salk. 460. Shadwell v. Hutchinson, 2 B. & Ad. 97. Holmes v. Wilson, 10 Durn. & East, 503. Trustees of Watertown v. Cowan, 4 Paige, 512.)
    So if my land be overflowed by my neighbor’s mill pond, I may not recover the value of the land in fee, but only the annual injury, up to the time of suit; for he may lower his pond. So of any case of nuisance; or the violation of any easement appurtenant to realty. This rule depends obviously not upon the form of the action, but upon the character of the injury as an injury to realty; thus, whether an action on the case be brought for stopping a way granted, or an action of covenant for stopping a way covenanted to be left open, the actual damage in each case being the same, the rule of damages at law must be the same.
    The covenant in question is a continuing covenant. It continues as long as the estate to which it is annexed continues. The condition not being gone, although broken, the defendants will be liable in a new action, on the covenant for any subsequent breach; and therefore, damages ought not to be given prospectively and conjecturally, as the injury may cease immediately after the verdict and judgment. We do not complain of the verdict as erroneous, nor of the charge of the judge as wrong. We claim that it establishes the principle of a right to recover, but gives damages only as to the past, and not as to the future. This is clearly a case where, at law, the actual damages are incapable of any safe and precise assessment; they depend upon the effect of a matter of taste and convenience. Until the square has been made and completed according to covenant, the degree of benefit it will carry with it cannot be precisely known. And this very difficulty is the main reason of a resort to this court, and by numerous authorities it is a sufficient reason. (2 Story's Eq. 43, § 738.) There is no doubt of the jurisdiction of this court to decree a specific execution of the covenant. There is no more difficulty in decreeing its specific execution, than in decreeing the specific execution of any other matter of covenant. (Holt v. Holt, 2 Vern. 822. 1 Ves. 46. City of London v. Nash, X Id. 12 ; S. C. 3 Atk. 512. Allen v. Harding, 2 Eq. Cas. Ab. 17. ' See 2 Eden, 128, and 8 Ves. 160. Franklin v. Tuton, 5 Madd. 285.)

   The Chancellor.

The first objection to the complainant’s claim, to a specific performance, which is urged by the appellant’s counsel in this case, is that the conditional grant of the land, to the corporation, as stated in the complainant’s bill, is not a compliance with the fourth section of the act of May, 1836; so as to authorize the alteration of the map and plan of the city. The condition that the lands should revert to the grantor, in case they should not be used for the purposes of a square, does not appear to be inconsistent with the object and intention of the legislature. For, under this act, the city corporation would have no right to use the lands for any other purpose than that of a public square; even if the grant was absolute and unconditional.' There is more difficulty, however, in bringing the other conditions of the grant within the act of May, 1836. It certainly could not have been the intention of the legislature to change the plan and map of the city, absolutely, on the receipt of a mere nominal grant of the lands, to be included in the square, upon such onerous terms and conditions that the public might be deprived of the use of the streets, as originally laid out by the commissioners, and also of the benefit of the public square with 'substituted passages on the east and west sides thereof. That is a question, however, which does not necessarily arise upon this bill for a specific performance. For if the defendants have not the legal right, under the act of May, 1836, to discontinue portions of Sixteenth-street, and to make the contemplated square, until there is an absolute grant of the land contained within the limits of the square, the court may make it a condition of the decree, for the specific performance of the covenant to grade, inclose and improve the square in the manner agreed upon by the parties in 1836, that the complainant shall make an absolute grant of the land to the corporation for the purpose of the public square; so as to bring it within the letter of the act of May, 1836. And it would be wrong to turn the complainant out of court upon that ground alone, where the objection is raised, for the first time, upon the argument of a general demurrer to the bill.

It is true, the bill shows that the defendants % have actually forfeited their right to the land granted for the square, by the non-performance of the conditions upon which it was granted. One of those conditions was that the corporation should immediately proceed to regulate the grounds, and enclose the square on each side of the avenue with a particular description of railing, and make the other specified improvements in the square. And from the allegations in the bill, it is perfectly evident that this condition of the grant has not been performed by the corporation, in good faith, either in form or in substance. The application, for a specific performance, however, is entirely inconsistent with the supposition that the complainant intends to insist upon the forfeiture. • And the objection that there is no express waiver of the forfeiture, in the bill, appears to be an objection of form merely; which should in this case, as I think, have been raised by a special demurrer.

The objection that the provision in the deed of cession, that the corporation' should immediately proceed to regulate the lands granted for the purpose of a public square, and should enclose and improve them in a particular manner, is a condition and not a covenant, cannot be sustained. It is true, the regulating, inclosing and improving of the land, is made a condition upon which the title of the corporation to the lands depends. But other language is used in the conveyance, which amounts to a covenant on the part of the corporation to perform such condition. The covenant to perform, abide by, and observe the conditions imposed upon the defendants by the acceptance of the deed, and which they have executed under their corporate seal, is an express covenant, not only to stand seised of the premises for the purposes of a public square, but also that they shall not be used for any other purpose; and that they will immediately proceed to regulate, enclose, and improve the premises, according to the conditions specified in the deed. (Shep. Touch. 122. Co. Litt. 203, b.)

The remaining question, and which is the important one in this case, is whether the instituting a suit at law for the breach of this covenant, and obtaining a satisfaction in damages in that suit, is a bar to a bill filed here for the specific performance of the covenant. For I have no doubt as to the right of the complainant to come into this court for the specific performance of such a covenant, in the first instance, upon a waiver of the forfeiture arising from the non-performance of the condition. The true rule on the subject of decreeing the specific performance of a covenant in such cases, is, that where, from the nature of the relief sought, performance in specie will alone answer the purposes of justice, this court will compel a'specific performance, instead of leaving the complainant to a remedy at law, which is wholly inadequate. The court has jurisdiction, therefore, to compel the specific performance, by the defendant, of a covenant to do certain specified work, or to make certain improvements or erections upon his own land, for the .benefit of the complainant, as the owner of the adjoining property, who has an interest in having such work done or such improvements or erections made; and where the injury to the complainant, from the breach of the covenant, is of such a nature as not to be capable of being adequately compensated in damages. (Storer v. Great Western Railway Company, 2 Young & Col. N C. 48.)

When the condition upon which the land was granted, for the purposes of the square, was broken, by the neglect of the defendants to proceed immediately to regulate the lands granted, and to enclose .and improve them within a reasonable time, according to the condition of the grant and the obligation of their covenant, the complainant had the right, at his election, either to waive the forfeiture and file his bill here, to compel the defendants specifically to perform their covenant to regulate, inclose, and improve the land, and to pay him the damage they had sustained or might sustain by their neglect to do it within the year, which is stated to have been a reasonable time for that purpose, or to insist upon the forfeiture, and repossess himself of the land, for a breach of the condition. He also had a right to resort to a suit at law, upon the covenant of the defendants to proceed immediately to regulate, inclose and improve the land for the purpose of a square, and for his benefit as the owner of the adjoining lands. But this was an entire, and not a continuing covenant; and it had been wholly and entirely broken at the time of the commencement of the suit at law, against the defendants. For the declaration in that suit, as well as the bill in this, averred that the defendants might and could have regulated,inclosed and improved the premises, in the manner prescribed in the covenant, within one year from the date of the grant. And the breach assigned was that the defendants had not proceeded to regulate the premises, nor had they inclosed or improved the same, down to the time of the commencement of that suit; which suit was commenced nearly three years after the making of the grant. In this respect, the covenant of the defendants is like a covenant to build a house, for the benefit of the covenantee, or for the enhancement of the value of his property, within a specified time; or as soon as it can reasonably be done. There, if the person claiming the benefit of the covenant waits until the time for building the house expires, and then brings his suit at law, to recover damages for the breach of covenant, and obtains a verdict and judgment in that suit, his remedy upon the covenant is exhausted ; and no new action can be brought, for not building the house after the expiration of the time specified in the covenant.

In the case under consideration, the effect of exhausting the remedy of the complainant, by a suit at law upon the covenant, after an absolute and entire breach thereof, was .to leave the defendants at liberty to inclose and improve the premises in such manner as they might deem expedient, and without violating the other covenant in the deed of cession; to wit, that the lands granted should at all times and forever thereafter be appropriated to, and used exclusively for, the purposes of a public square. This last covenant is a Continuing one; upon which actions may be sustained from time to time, as often as the defendants appropriate the property, or suffer it to be appropriated, to any purpose other than that of a public square, until the complainant thinks proper to enforce the forfeiture, for breach of the condition. The amount of the recovery in each successive action, upon that covenant, would be only the damages for breaches which had occurred at the time of the commencement of the suit. And the recovery of such damages would not be a bar to an action for a subsequent misappropriation of the premises, to purposes prohibited by the covenant. But upon the covenant to' proceed immediately to regulate the grounds, and to inclose and improve them in a particular manner, the complainant should have claimed damage, in his action at law, for the breach of that covenant, to the extent of the injury which his property would probably sustain, by permitting the defendants to inclose and improve the square in such, manner as they might deem proper; instead of inclosing and improving it in the particular manner specified in the deed of cession, and within the time required by the condition of that deed. And if the court, before which that action was tried, either with the complainant’s assent or otherwise, adopted a wrong rule of damages, for the breaches of the covenant which had occurred at the time of the commencement of that á'ction, this court has not the power to correct the error, by decreeing a performance of the covenant; for the entire breach of which covenant the recovery in that action was, in legal contemplation, a full satisfaction.

Although the claim of the complainant, to have a specific performance of the covenant for the breach of which he has already obtained a legal satisfaction in the suit at law, cannot be sustained, I think this general demurrer to the whole bill is not well taken. For thé bill shows a breach of another of the covenants, in relation to the uses to which the premises embraced in the grant shall be appropriated. And under the alternative prayer, for such other relief as the complainant may be entitled to, I think he may claim a specific performance of the condition, and covenant, that the lands granted for the purposes of a public square, shall be appropriated and used for that purpose exclusively. The bill states that the lands granted for a public square, have never been inclosed or improved, in any manner whatever, down to the time of filing of such bill, and that individuals have been permitted to occupy parts of such lands with shanties and pig sties; although, as the bill alleges, the lands granted for Stuyvesant square still remain in the hands of the corporation, under the conveyance from the complainant. This is clearly such an injury to the complainant, in reference to his adjacent property, as will authorize this court to decree a specific performance of the covenant that the premises shall be used for the purpose of a 'public square exclusively; and, in such decree, to require the defendants to remove these nuisances, and to keep off all intruders, upon the premises, whose occupation of any parts thereof is inconsistent with the purposes for which the lands were granted. Although the permitting of süch a use of the premises, involves a forfeiture of the grant in case the complainant thinks proper to enforce the forfeiture, for this breach of the condition upon which the lands were granted, he is not bound to claim the forfeiture; but may resort to his suit to compel a specific performance of this covenant. And without re-entering for the breach of the condition, the complainant cannot himself remove these nuisances, without committing a trespass upon the defendants’ property; nor can he keep off intruders who may settle upon the premises. It is true he may bring successive suits against the defendants, for their breaches of the covenant that the lands shall be used exclusively for the purpose of a square. For under that continuing covenant the defendants are bound to see that the premises are used for no other purpose. But the remedy at law is wholly inadequate to the protection of the complainant’s rights, in this respect ; and the nature of the injury is such as to be incapable of an adequate compensation in damages. The defendants, therefore, if they do not think proper to inclose and improve the premises, immediately, in the manner specified in the deed of cession, must at least do so much as is necessary to prevent the lands appropriated for a public square, from being used by ip-traders, or others, for any other purpose; to the injury of the complainant’s adjacent property.

For these reasons, although I cannot agree with the assistant vice chancellor, in the conclusion that the convenant to inclose and improve the premises in a particular manner, and without unreasonable delay, was not merged in the recovery in the action at law, so as to deprive the complainant of the right to come here for a specific performance of that covenant, still the decre-tal order, overruling the general demurrer, as a defence to the whole relief sought by this bill, must be affirmed. For upon a general demurrer, if the complainant, is entitled to any relief, whatever in this court, upon the case made by his bill, the demurrer must be overruled. The decretal order appealed from must, therefore, be affirmed with costs; but without prejudice to the right of the defendants to insist, in their answer, that the judgment, in the action at law, is á bar to so much of the relief, sought by the bill, as seeks a specific performance of the covenant to proceed immediately and regulate the lands granted for a public square, and to inclose and improve them in the particular manner specified in the deed of cession, or for subsequent damages on account of any supposed breach of that particular covenant.

Order accordingly.


source: Caselaw Access Project

author: The Chancellor.

license: Public Domain

text:
    The National Fire Insurance Company vs. Loomis and others. Loomis vs. The National Fire Insurance Company.
    An agent for the complainants, in a foreclosure suit, may bid upon the property, for his principals, in his own name, without giving notice to other bidders that he is not bidding for himself, but for the complainants.
    Where an agent bids olf property in his own name, at a master’s sale under a decree, without disclosing to the master that he is bidding for another person, he is personally responsible for the completion of the purchase.
    The principle upon which the employment of puffers, at a sale by auction, is disallowed, is that they are not real bidders, but the instruments of the vendor to deceive the other bidders. But the principle is not applicable to a master’s' sale of property, under a decree, where the complainant is authorized to bid upon the property, at the sale, and is bound to take the property if bid off by him, or by his agents for him.
    Any person who is a real bidder at a judicial sale, may bid either in person or by his agent duly authorized.
    The revised statutes do not require a contract, for the sale of real estate, to be signed by the purchaser thereof; but only by the party by whom the sale is to be made.
    And it seems the master’s report of a sale made by him, or any written memorandum of the sale containing the requisites of the statute, and subscribed by him, is a sufficient compliance with the statute to render such sale valid and .binding upon the purchaser.
    An announcement by the master, after the property has been struck off, at a sale made by him, that if the purchaser does not comply with the terms of the sale the property will be resold at his expense, does not discharge the purchaser from his bid.

      This' case came before the chancellor, upon appeal. The facts are sufficiently stated in his opinion, to understand the only legal questions arising in the case.

      C. P. Kirkland & J. Van Buren, for the appellants.

      W M. Evarts & J. A. Spencer, for the respondents.
   The Chancellor.

This is an appeal from an order of the vice chancellor of the fifth circuit, denying the application of the appellants, Monroe, Herkimer, Haight and Usher, to set aside the sale to them, under the decree in these .causes. For the reasons stated in the opinion of the vice chancellor, I think there was no fraudulent combination between the agents of the complainants in the first 'of these causes, to raise the property above its real value. One of the standing rules of the court having directed that a provision should be inserted in every decree of sale, of mortgaged premises, that the complainant, or any other party to the suit, may become a purchaser at such sale, it was wholly unnecessary for the master to give notice that the decree was in the usual form. Nor were the agents of the insurance company bound to give notice, to other persons, that they were not bidding for themselves ; any more than the appellants, Herkimer, Haight and Usher, were bound to proclaim that they were not bidding for their own benefit, but for the benefit of thé appellant Monroe. But if they had bid in the property in their own names, without .apprising the master for whom they were bidding, they would have rendered themselves personally responsible for the completion of their several purchases.

The principle upon which the employment of puffers, by the person for whom a sale at auction is made, is disallowed, as a fraud upon fair purchasers, is that the persons who thus bid are not in fact real bidders, but are the mere instruments of the vendor to deceive the other bidders. But this principle does not apply to a masters sale under a decree, where the persons bidding, either for themselves or as the agents of another, are bound to take the property purchased, either for themselves or their-principal. Any person who is a real bidder, at a judicial sale, has a right to bid either in person or by his agent duly authorized. And I know of no principle which renders it necessary that a person bidding at an auction, as the agent of another, should disclose, to other bidders, the name of the person for whom he is bidding; unless the person for whom he acts is the vendor, who is professedly selling the property instead of buying it. Here it was a matter of no consequence to other bidders, whether the agents of the insurance company, who were strangers, bid in their own names, or as the agents of the corporation which was authorized to purchase at the sale. And it is wholly improbable that either of the appellants, who appear to have been well acquainted with the property, were induced to give more than they believed the property was worth, merely because they saw two strangers bidding upon it, without disclosing the fact that they were bidding for the insurance company. Both of these agents swear that they had obtained estimates of the value of the several pieces of property, and that they intended in good faith to purchase the property, for the company, if it was not sold for more than the maximum, prices which they had fixed for their limits. And even if they occasionally bid against each other, by mistake, that was no fraud upon other bidders; but it was an injury to the company for which they were acting, if the company, in consequence of such overbidding each other by its agents, gave a larger price for the property bought by such agents.

The question whether a master’s sale is within the present statute of frauds, is one which does not properly arise upon this application. For if the petitioners were not bound by their bids, all they had to do was to refuse to complete their purchases; instead of applying to the court to set aside the sales which were not binding upon them. It may be proper to remark, however, that the present statute of frauds does not require the written contract or memorandum of the sale to be signed by the purchaser of real estate; but it is required to be subscribed by the party by whom, the sale is to be made. (2 R. S. 135, § 8.) The written report of the master by whom the sale is. made, stating- the terms of the sale, the names of the purchasers, and the price bid, and subscribed by such master, or any other note or memorandum containing the requisites of the statute, and signed by the master, would therefore, probably, be a literal compliance with the terms of the statute, if sales by masters are in fact within the statute.

The announcement, by the master, that the property- would be put up and resold, at the expense of the purchasers, if they did not comply with the terms of the sale, could not have the effect to discharge them from their purchases. The vice chancellor was therefore right in refusing to discharge the appellants from their purchases. And the order appealed from, must be affirmed with costs.


text:
    Davis vs. Hawley and others.
    Where two or more defendants appear by different solicitors, all of whom appear and oppose a special motion, made against them jointly, and such motion is denied with costs to the defendants to be taxed, the taxing officer is not at liberty to restrict the solicitors of the defendants to one bill of costs; although the court might properly have so restricted the allowance of costs, at the time the order was made, denying the motion.
    A charge for a copy of the bill of costs, to keep, is not taxable.
    Upon the taxation of the costs of a special motion, the solicitor is not entitled to charge for affidavits of the demand of the costs, and of the non-payment thereof.
    But such affidavits are taxable, or will be allowed, as a part of the costs of the order for a precept to compel the payment of the costs of the special motion, if the costs of such motion are not paid within the time allowed for that purpose.
    Where only one order is entered, upon the denial of a motion with costs, to several defendants, only one charge for the drawing and entering the order, and attending the register upon the entry thereof, is taxable; although the defendants have appeared by different solicitors.
    This was an application for a re-taxation of the costs, upon a special motion. The defendants appeared by separate solicitors ; and the principal objection was to the allowance of two distinct bills of costs.

      S. D. Van Schaack, for the complainant.

      E. Clark, for the defendants.
   The Chancellor.

The answers show that the defendants had distinct interests; the one claiming under an assignment to which the other was not a party, and the answers being in fact different. Although it might have been proper for the vice chancellor, who made the order for costs in this case, at the time such order was made, to have given but one bill of costs, except as to those services which necessarily were separate, I think the taxing officer was .bound, under this order, to tax both bills. Some of the items in each bill, however, were improper. In each bill a copy of the bill of costs to keep, is taxed; which charge is not allowable under the fee bill. And in each bill, $2 is charged for affidavits of demand and non-payment, which affidavits are not properly taxable in these bills. For if the costs are paid without a further application to the court, to compel payment, those affidavits are unnecessary. And if the costs are not so paid, these charges will be included in the usual allowance, for the costs, in the order for a precept. The charges for notice of the order to serve, and the second charge for serving the order for costs, which is charged in each bill, and the charge for serving the taxed bill of costs, are not taxable, and should also have been disallowed by the taxing officer. And as it appeared upon the face of the order, under which the taxation was made, that the counsel who made the motion was also the solicitor for one of the defendants, it was improper to allow him for his attendance, both as solicitor and counsel, in the bill of costs belonging to him as solicitor. (2 Paige’s Rep. 471.) There was in fact but one order entered, for the costs of both defendants. Both could not therefore be entitled to charge for drawing and entering the same order, and attending the officer to enter it. Those charges should be stricken out of the second bill.

The first bill must be reduced to $ 17,36, and the second to $15,43; and both must be paid within twenty days after service of the order, reducing the amounts, upon the solicitor for the complainants.


text:
    Astor vs. Turner and Skidmore.
    Where mortgaged premises are sold under a decree of foreclosure, if the accruing rent becomes payable between the day of sale and the time when the purchaser will be entitled to the possession, of the mortgaged premises, by the terms of the decree and the practice of the court, such rent belongs to the owner of the equity of redemption, and not to the purchaser at the master’s sale.
    But if the proéeeds of the mortgaged premises are insufficient to pay the amount due upon the decree, and the rñbrtgagór, or the person who is personally liable for such deficiency is insolvent, the complainant is entitled to a receiver, to collect such rent, and have it applied to the payment of such deficiency.
    The owner of the equity of redemption, is, at law, entitled to the rents and profits of the mortgaged premises, ’until the purchaser under the decree becomes entitled to the possession of the premises. But where the mortgaged premises will probably be insufficient to pay the amount due upon the mortgage, and the person who is personally liable for the mortgage money is insolvent, the mortgagee, after the mortgage has become due, is in equity entitled to such rents and profits to satisfy the anticipated deficiency; and he may obtain a lien thereon for that purpose, by the appointment of a receiver.
    These were appeals from an order made in these causes, by the vice chancellor of the first circuit. The facts are stated in the chancellor’s opinion.

      J. Rhoades, for the appellant.

      H. P. Hastings, for the respondéhts.
   The Chancellor.

These cases came tóófe ine upon the separate appeal of W. Skidmore, in each suit, frota an order of the vice chancellor of the first circuit, made in both suits, for the appointment of a receiver of the rents and profits of mortgaged premises. There Was a final decree in each suit, for the sale of the premises mentioned in the complainant’s bill therein; with a decree ever against the mortgagor for the deficiency, if any. The premises were sold by the taaster on the 31st of October, 1844, and were bid in by the complainant •; leaving a deficiency pf $600, due upon the decree in each suit. The appellant was the owner of the equity of redemption, and was in possession of the premises, by his tenants, at the time of the sale. But by the terms of the decrees under which the sales were made, and under the rules of the court, the purchaser was not entitled to the possession of the premises until after the rents, up to the first of November, would become due and payable. The vice chancellor, therefore, upon the application of the complainant, directed a receiver of those rents to be appointed, and that the rents when received should be applied to the payment of the deficiency remaining due upon the decree, in each case, beyond the proceeds of the sale of the mortgaged premise's; the mortgagor being insolvent. And he was clearly right, upon the principles heretofore settled by this court. The holder of a mortgage which has become due, and where the proceeds of the mortgaged premises are not, or whén they probably will not be, sufficient to pay his debt and costs, and where the mortgagor or other person who is personally liable for the deficiency is insolvent, may apply for a receiver, to secure the rents and profits of the mortgaged premises which have not yet been collected. In this way he may obtain a specific lien upon the rents and profits, to pay such deficiency, or the anticipated deficiency; although he cannot call upon the owner of the equity of redemption in the mortgaged premises, to refund rents and profits which the latter had collected, or received, before the mortgagee attempted to get a specific lien upon such rents and profits, by the appointment of a receiver. (See Howell v. Ripley, 10 Paige’s Rep. 43.)

Here the deficiency was actually ascertained, on the -31st of October, when the mortgaged premises were struck off to the complainant. If the purchaser had been entitled to the immediate possession of the premises, by the terms of the decree and the conditions of the sale, the rents which fell due the next day would have belonged to him. The legal presumption, in that case, would have been that he had purchased in reference to such right, and had given more for the premises than he otherwise would have done on account pf such rents and profits.

Here, however, the purchaser was not entitled to the rents which would become due before his right to the possession of the premises was to commence; even if the order to confirm the master’s report should be entered immediately. And if there had been no deficiency those rents would have belonged to the owner of the equity of redemption. But the mortgagee had an equitable right to such rents, to pay the deficiency; which right could only be enforced by an application to the court, to appoint a receiver.

The objection that the vice chancellor has altered a final decree, by the order appealed from, is not well taken. The final decree, in each suit, stands in full force. And the order to apply these rents towards the deficiency, due from an insolvent mortgagor, is merely a collateral remedy against this fund, which in equity was secondarily liable for the payment of such deficiency. The fact of the deficiency having been ascertained when this order was made, the vice chancellor was also right in making a final disposition of the rents and profits which were to be received; instead of charging the fund with the expense of a new application to the court for that purpose.

The order appealed from must be affirmed, upon each appeal, with costs.


text:
    Mumford vs. Sprague and others.
    "Where the defendant’s default is sufficiently accounted for, and he has A Valid de-fence to the suit if the answer sworn fo by him is true, it is erroneous to require, as a condition of letting him in to defend, that he should stipulate to stay the proceedings upon a judgment which he has recovered against the complainant, without security; when the effect of suclr stipulation will be to discharge a surety who is already liable for the debt, if it cannot be collected of the complainant.
    Where the owner of a judgment has assigned it to a third person, the assignee of the judgment is a necessary party to a suit for a perpetual stay of the proceedings on such judgment, upon the ground of equities existing between the complainant and the assignor previous to the assignment.
    This was an appeal, by the defendant Sprague, from so much of the order of the vice chancellor of the eighth circuit, allowing the opening of the defendant’s default and permitting him to file and serve his answer, as made it a condition upon which the appellant should be permitted to defend, that he should execute and deliver to the complainant a stipulation to stay the proceedings upon the execution against the complainant, on the judgment mentioned in the bill, until the hearing of this cause; unless it should be necessary to proceed upon such execution to preserve its priority as against other judgment creditors.

      J. A. Spencer, for the appellant.

      F. M. Haight, for the respondent.
   The Chancellor.

The neglect to put in the answers in time, is sufficiently accounted for; and the answer, which is sworn to, shows a perfect defence to a part of the relief claimed by the bill. I am inclined to think, however, that the complainant, upon payment of the full amount of the judgment, will be entitled in equity to the collateral securities in the hands of Sprague, which were placed there by Dakin, and also to the premises purchased in by Sprague under the mortgage foreclosures, after paying the costs and expenses of foreclosure, and other necessary expenses in relation to such premises. But the complainant was not entitled to a stay of proceedings upon the judgment, without giving security to pay it, or so much of it as might ultimately be decided to be equitably due. Such is the effect of the statute in relation to the granting of injunctions to stay proceedings at law after judgment. And what the statute has declared to be inequitable and unjust in relation to the granting of an injunction, cannot be equitable as a condition of granting relief in a case of this kind.

There is, however, another fatal objection to this part of the order appealed from, which the vice chancellor has entirely overlooked. It appears from the answer of Sprague, that by a valid agreement made with G. H, Mumford, the latter is entitled to the benefit of a part of the judgment, to indemnify him as a surety upon his guaranty, for the- complainant and Dakin, on the draft upon Miller. The effect of giving such a stipulation as the order requires, would probably be to discharge the liability of G. H. Mumford to Sprague, if given without his consent, even if Sprague was still the owner of the judgment. It however is distinctly sworn in the answer, that on the 8th of March, 1844, which was before the commencement of this suit, Sprague sold, assigned and transferred the original judgment, and the moneys due thereon, to G. H. Clark, who. is not a party to this suit, by whom such judgment is now owned. The subsequent proceedings upon the scire facias, of course, were for the benefit of Clark and G. H. Mumford, although they were necessarily had in the name of Sprague. And the answer also states that the execution, upon the revived judgment, was issued or caused to be issued by Clark, the assignee. The defendant Sprague, therefore, has no right to interfere with the proceedings upon that execution, without the consent of his assignee; and an unauthorized interference therewith might render him personally liable to the latter. The complainant can get no relief against that judgment, so far as concerns the interest of Clark therein, without making him a party to this suit, by an amendment of his bill or otherwise; although upon the bill taken as confessed against Sprague, he might obtain a personal decree against the latter, for the delivery up of the- securities received from G, H. Mumford, as the surety for the complainant’s endorsement of the Miller draft, and for the costs of this suit.

The order of the vice chancellor must be reversed, or modified so as to direct that the order taking the bill as confessed against the defendant Sprague, be set aside and vacated, upon payment of $7 for the costs of opposing his motion, and upon payment of the costs of the complainant for entering the order to take the bill as confessed, and his subsequent costs of preparing the cause for hearing, up to the time of the entry of the order which was made upon this appeal to stay the proceedings; such costs to be paid, and the answer perfected within twenty days after the service of the taxed bill of costs upon the defendant Sprague, or his solicitor. And in the meantime, all proceedings upon the order to take the bill as confessed are to be stayed. Neither party is to have costs as against the other upon this appeal 5 and the proceedings are to be remitted to the vice chancellor. The complainant is also to be at liberty to amend bis bill, at any time within twenty days after service of the answer of Sprague, by inserting an allegation therein, that G. H. Clark has or claims to have some interest in the judgment, as assignee or otherwise, and praying process of subpoena against him. And in case of such amendment the answer of Sprague is to stand as ap answer to the bill as amended.


text:
    Sherwood, administrator, &c. vs. Wooster.
    Where the intestate was domiciled in the state of Louisiana at the time of his death, and left two children, one of whom, a daughter, then resided in the state of New-York, and the other, a son, had been absent and had not been heard of for twelve years; and the daughter, and her husband who had obtained letters of administration on the estate of the intestate here, presented their petition to the probate court in Louisiana, stating that she was the daughter of the intestate, and that he left no other descendants except the children of the petitioners, and praying that she might be declared sole heir to'the estate of her father; and an order or decree of that court was made in her favor, according to the prayer of the petition ; Held, that the de cisión of the probate court of Louisiana was not conclusive evidence of her right to the personal estate of the decedent in that state; so as- to bar the claim of her brother, who subsequently appeared and claimed his share of the property.
    And where the husband of the daughter, who was declared to be the sole forced heir of her father, subsequently received the proceeds of the personal estate of his father in law in Louisiana, and inventoried them as a'part of the personal estate of the decedent, which had come to his hands as the administrator here; Held, tha* the surrogate, by whom such letters of administration had been granted here, had jurisdiction to decree payment of the share belonging to another child of the tcsta- ■ tor, who appeared and claimed the saíne in this state.
    Law of Louisiana, relative to the administration of the estate of a decedent, in cases of intestacy, or of vacant successions, explained.
    The donations or advances which the decedent has made to one of the heirs of an intestate succession, by the laws of Louisiana, as well as by the laws of this state, must he collated, or brought into hotch pot, in the distribution of the estate.
    JBy the civil law, a gift from a parent to his child, intended as a marriage portion, as contradistinguished from a mere marriage present, is subject to collation.
    The succession to the personal property of a decedent, is governed by the law of his domicil, at the time of his death.

      An administrator who retains the residuary estate, and uses it under the supposition that it belongs to him, in right of his wife as the sole distributee, is chargeable with interest, from the time another distributee appears and claims his share of the property.
    This was an appeal from the sentence and decree of the surrogate of Chenango county, directing the appellant to pay to the respondent a sum of money, as the distributive share of the latter in the estate of Isaac Wooster deceased. The decedent had two children; Curtis, the respondent, and Sarah, the wife of the appellant in this suit. In 1819, Curtis Wooster, the son, who was an apprentice, left the service of his master and went abroad; and it was not known to his relatives whether he was living or dead, until more than twenty years afterwards. In 1821, Isaac Wooster, the intestate, removed to Baton Rouge, in the state of Louisiana, and resided there at the time of his death, in September, 1831. His daughter and her husband were then residing in- this state. A few days after the death of I. Wooster, a petition was presented to the judge of probates for the parish of East Baton Rouge, by A. Wiuthrop, stating the death of the intestate, leaving po heirs in that state, and praying that he might be appointed curator of the vacant succession. Ten days notice of the application was then published; at the end of which time, no one appearing to object, Winthrop was appointed curator of the vacant succession of I. Wooster, the intestate, under the seal of the probate court. In January, 1832, Sherwood, the appellant, obtained letters of administration from the surrogate of Chenango county, upon the estate of his deceased father in law ; and, as such administrator, he subsequently received a certain debt of about $2000, due to the intestate, in this state. In April, 1832, the wife of Sherwood, in connection with him, presented a petition to the probate court of East Baton Rouge, stating the death of her father, and the appointment of the curator of his vacant succession; that she was the legitimate child of the decedent, and that he had no other descendants, except the children of the petitioners; and praying that she might be decreed to be the sole heir, and that the curator might be ordered to deliver up to her, as such heir, the property and effects, books, credits and papers belonging to the succession. The petitioners subsequently produced the ex parte depositions of two witnesses, residing in this state, stating that they were acquainted with the decedent and his daughter, and that they were informed and believed that she was his only surviving child, and his only descendant, except her children. And, upon that proof, the probate court made an order, that Mrs. Sherwood be recognized as the legal and forced heir of her father, I. Wooster, and that she be put into the possession of the estate as such ; and that the'curator deliver the succession to her-, together with all notes, accounts, evidences of debt and other papers and documents belonging thereto. This decree was made the 13th of June, 1832.
    The appellant and his wife afterwards employed attorneys, in Louisiana, to collect from the debtors residing there, the several debts due from them to the estate of the decedent. And such attorneys collected and remitted to the appellant two sums of money, amounting together to $3568,85; one of which sums was received in the summer of 1834, and the other in the spring of 1835. The intestate had, in his lifetime, also made advances to his daughter, the wife of the appellant, to the amount of about $>2000.
    In 1840, the respondent made his appearance, claiming to be the son of the intestate and to be entitled to half of his estate, as one of his heirs, and next of kin; and claiming also to be entitled to half of the advancements to the daughter. But the appellant refused to recognize him as the son of the intestate, or to acknowledge his claim to any part of the estate of the decedent. In January, 1841, under an order of the surrogate, the appellant, as such administrator in this state, made and filed an inventoryof the property and effects of the intestate; in which inventory he admitted the receipt of the moneys collected in Louisiana, as having come to his hands as administrator here. He also inventoried several other demands, in favor of the estate, due from persons living in Louisiana and elsewhere, which he had been unable to collect. He declined, however, to inventory the moneys collected from the creditors residing in this state; claiming the same as a gift to himself

      In February, 1841, the respondent applied to the surrogate, for an order requiring the administrator to account, and to pay over to the respondent his share of the estate of his deceased father. An order was made accordingly, and the appellant being duly cited, both parties appeared before the surrogate: where the identity of the respondent, as well as his claim to any part of the estate, and the items of the account of the administrator, and the amount of advances to Mrs. Sherwood, were contested. After hearing the testimony, the surrogate decided that the respondent had established his cl&im to be the son of the intestate, I. Wooster; that as the intestate was domiciled in Louisiana, and died there, the succession to his property must be governed by the laws of that state; but that the decree of the probate court of the parish of East Baton Rouge, declaring Mrs. Sherwood the sole heir of the intestate, and entitled to the succession, was not conclusive upon the rights of her brother. He also decided that the administrator here, having inventoried the moneys collected in Louisiana, as assets in his hands as such administrator, the surrogate’s court was authorized to decree distribution thereof, according to justice and equity; that the money received by the appellant from the creditors in this state, was received by him as administrator,' that the advances to the daughter of the intestate, made by him in his lifetime, were subject to collation, by the laws of Louisiana, and must be considered as a part of the estate of the decedent, in determining the share to which her brother was entitled in the distribution; that if the administration in this state was originally ancillary, it became the principal administration when all the property of the intestate was reduced to the possession of the administrator appointed here, and that the surrogate had thereby acquired jurisdiction to decree a final distribution ; that the administrator had acted with due diligence in collecting the debts and claims due to the estate; that he was not chargeable with interest upon the money in his hands, while he supposed his brother in law was dead, and that he was entitled to the same in right of his wife, but that he was chargeable with interest after the distributive share of the respondent was properly demanded; that the claim of $1000, for moneys received from the intestate, in 1831, was not established .; and that all the advances or gifts, made by the decedent to his daughter, must be collated. The surrogate made a. decree accordingly, declaring the respondent’s share of the estate, in the hands of the administrator, to be $3687,81; which sum, together with the further sum of $154,24, allowed to the respondent for the costs of the proceedings before the surrogate, subsequent to the establishment of his identity by proof, the administrator was directed to pay to the respondent, Curtis Wooster, within thirty days from the time of entering such decree, on the 12th of June, 1841. From this decree, and every part thereof, the administrator appealed to the chancellor.

      James Clapp, for the appellant,

      H. R. Mygatt, for the respondent.
   The Chancellor.

The proofs before the surrogate established the identity of the respondent, as the son of the intestate, Isaac Wooster, beyond all doubt. The testimony of Dr. White, of Hudson, who performed the surgical operation upon him when he was a boy, and of Mr. Moseley, to whom he was apprenticed for three years, is 'of the most satisfactory and conclusive character.

I think the surrogate was right also in deciding that the proceedings in the probate court, of the parish of Bast Baton Rouge, could not affect the right of the respondent, to claim his share of the estate or succession of his deceased father, according to the laws of Louisiana. To understand the nature and effect of the proceedings in the parish court, it will be necessary to refer to the principles of the civil law, as it exists in Louisiana, in relation to the estate of a deceased person; called in the language of the civilians, the succession. But, in deciding this case, it is only necessary to refer to those principles in reference to intestate estates. By the law of Louisiana, all the' legitimate children of the intestate inherit equally, without distinction of sex or primogeniture, by heads, where they are of the same degree, and inherit in their own rights, and by roots where all, or any part of them, inherit by representation ; subject to collation where any advancement or donation has been made to any of them, by the intestate. (Civ. Code of Louis. Art. 898, 1306.) But the heirs of the intestate do not, as with us, obtain the possession of the personal estate of the intestate through an administrator, where they accept the succession unconditionally; or,-in the language of the civil law, without benefit of inventory. For the succession, in such a case, is acquired by the lawful heirs, who are called by law to the inheritance immediately upon the death of the intestate; and the right to the possession of the property, which the decedent had, continues in the persons of the heirs as if there had been no interruption, and independent of the fact of their actual possession. The effect of this right, among other things, is to authorize such heirs to institute suits, in their own names, for the property of the intestate, or for debts due to him; and to continue suits commenced by him in his lifetime. It is true the rights of the heirs are in suspense, until they decide whether they will accept the succession or will reject it, or will accept it with the benefit of inventory. But when they do accept it unconditionally, they are considered as having succeeded to the decedent from the moment of his death; not only as to the part of the succession belonging to them in their own right as heirs, but also as to the part thereof which accrues to them by the renunciation of the succession by some of their coheirs. (Idem, Art. 934 to 942.) And where all the known heirs accept the succession without benefit of inventory, or a part of them accept, and the others renounce the succession absolutely, each heir who has thus accepted, may sue in his own name for his share of the property, or of an obligation which is susceptible of division; and may be sued by the creditors of the succession in the courts of ordinary jurisdiction, for his rateable proportion of each debt due from the intestate. (Idem, Art. 1376, 2107. Code of Pr. Art. 113, 120, 996. Saunders v. Taylor, 18 Mart. Rep. 522.)

Again; by the laws of Louisiana, where the succession opens in favor of a person who was once in esse, but whose continued existence is not known, the inheritance devolves exclusively on those who would have a joint right with him, to the estate; or on those upon whom the inheritance would have devolved if such person was not in existence when the succession opened, by the death of the testator or intestate. But this does not affect the right of such absentee to claim his share of the inheritance; his right to which can only be barred by the lapse of time which is established for prescription in such cases. (Civ. Code of Louis. Art. 78, 79. Dupre v. Reggio, 6 Louis. Rep. 653.) The Code of Practice of Louisiana, which, perhaps, is not embraced in the stipulation in this case, gave to the appellant the right to sue for and recover, in his own name, in the courts of that state, the debt due to the estate of his father in law, whose succession his wife was supposed to have inherited, and to which succession she had been recognized as sole heir. (Code of Pr. 107.) The debts recovered by him, in the state of Louisiana, have therefore in law, as well as in fact, come to the hands of the appellant, and not to the hands of his wife. It may also be proper to state, in this connection, that by the law of Louisiana the heir who accepts the succession simply, without claiming the benefit of an inventory, does not give any security for the administration of the estate, or for the payment of debts, &c. unless he is required to do so by a majority in amount of the creditors of the succession, either present or represented, in the parish where such succession opened. But, by such unconditional acceptance, he renders himself personally liable for the debts of the decedent; and he may be sued in the ordinary tribunals for the recovery thereof, out of his own property. And he is entitled to have the effects of the succession immediately delivered to him, upon his signifying such acceptance to the probate court. (Civ. Code of Louis. 1005, 1049. Code of Pr. 996.) Where the heirs of the decedent are absentees, and are not represented by their attorneys at the place where the succession opens, the estate is to be placed under the care of a curator, appointed by the probate court. And if a part of the heirs are absentees, their respective shares of the succession are, in like manner, to be placed under the care of a curator. But if the absent heirs present themselves within the time limited by law for that purpose, and accept the succession, or send their powers of attorney to claim it, and cause themselves to be recognized a's such heirs, the duties of the curators cease. And the heirs, in such case; are to be put into possession, with all the rights .which they would have had if they had appeared and claimed the succession before the appointment of such curator; except that the administration of the curator, so far as it had been rightfully proceeded in before the appearance of the heirs, is valid and binding upon them. (Civ. Code of Louis. Art. 1105, 1180, 1181. Idem, Art. 50.)

In the case under consideration, the appellant’s father in law left no heir at the place where he died, and where his succession opened according to the law of his domicil. A curator for the absent heirs of the vacant succession was therefore appointed. And I am satisfied it was done in due form; although the appellant may not have intended to give in evidence the code of practice, to show the jurisdiction of the parish judge in the case. But I have looked into that code of practice, as I supposed the stipulation between the parties was intended to embrace that part of the code of Louisiana, as well as the civil coue. • By a reference to the code of practice, I find that the parish judge is ex officio judge of the court of probate of the parish for which he is appointed. And such probate courts have exclusive jurisdiction, among other things, to appoint curators to vacant estates and absent heirs; to-make the inventories and sales of the property of successions, which are administered by curators or testamentary executors, or in which the heir prays for the benefit of inventory; to decide on claims, for money, which are brought against successions administered by curators, testamentary executors, or administrators of successions to establish the order of privileges and the mode of payment; and to ordain and regulate all partitions of successions in which minors, or interdicted or absent persons are interested, or even those which are made by authority of law, between persons of lawful age and residing in the state, when such persons cannot agree upon the partition and the mode of making it, (Code of Pr. Art. 924, §§ 4, 5, 13, 14.) By another provision of this code, when the heirs or other persons, entitled to successions which are administered by curators appointed by a judge, or by testamentary executors, shall present themselves or send their powers, to reclaim such successions, within the year allowed to the curator to administer, the judge of the probate court is to pronounce on the claim in a summary manner. And if he discovers that the petitioners are entitled to the succession, he is to put them in.possession of it; and is to direct the curator or executor to account. The probate court, therefore, was the proper tribunal to receive the claim of the appellant, in right of his wife, to be admitted as heir to the succession, and to supersede the curator who had been appointed while the succession was vacant. But there is nothing in the civil code or in the code of practice, which I have been able to discover, that makes the decision of the probate court, recognizing the person claiming in such a case as the sole heir, conclusive upon the rights of other persons who were not in fact heard before such court. And the decision of the supreme court of that state, in the case of Benoit v. Benoit’s Heirs, (8 Louis. Rep. 231,) appears to be an authority for a contrary conclusion. Making the decision of the probate court conclusive upon the respondent in this case,, would also be in direct conflict with the articles of the civil code which devolved the inheritance exclusively upon the only heir whose continued ex-.l.iMxoe was known, but subject to the right of the absentee, whose existence was then unknown, to claim his share of the inheritance in case he should subsequently appear. Thé 80th article of the civil code, was not intended to give the person put in possession of the inheritance, the right to the proceeds of such inheritance absolutely, even when received in good faith and without any knowledge of the continued existence of the absen-' tee; but only to give the person- thus put in possession the right to retain the proceeds of the inheritance, received in good faith, until such absentee appears.

Here, by the discharge of the curator, and the delivery of the-succession to the appellant as sole heir, in right of his wife, without benefit of inventory, and by the removal of the whole of the effects of the succession beyond the jurisdiction of the state, the probate court lost all jurisdiction, if it ever had any, to compel the partition and division of the succession, between the rightful heirs, upon the re-appearance of the one whose existence was not known at the time such curator was discharged. And the appellant’s counsel is under a mistake, in supposing that the discharge of the curator was in the nature of a decree for the distribution of the estate, by an ordinary administrator here, upon the final .settlement of his accounts, after the administration of the estate has terminated. But the appellant’s rights in the property are the same, and no greater, than if the curator had never been appointed, and the appellant and his wife had appeared, before the probate court, and had claimed and accepted the succession without benefit of inventory, in the first instance.

The right of the respondent was not barred by prescription ; as there never was a time, after the appellant received the portion of this estate which belonged to the respondent, in which any suit could have been instituted by the latter, for the recovery thereof, in any of the courts of Louisiana. Nor could the possession of the property be said to have been obtained in good faith, in reference to the laws of Louisiana. For if the fact that the intestate once had a son, who was not known to be dead, had not been concealed, provisional possession only as to his share of the succession would have been decreed; and upon giving security therefor. (See Civ. Code, art. 58, 66.) The laws of that state also recognize the general rule, that the prescription of actions is to be governed by the laws of the place where they are brought. And the appellant having brought the funds of the succession into this state, and inventoried them as a part of the personal estate of the intestate in his hands, as administrator here, it was a renunciation of the benefit of the prescription, if it ever existed in Louisiana. And he may therefore be compelled to distribute the property, in his possession as such administrator here, according to the rights of the heirs of the decedent therein.

The inventory made here is not absolutely conclusive evidence that the property, specified therein as having come to the hands of the administrator in money, was in fact property of the estate; for which he was accountable as administrator. But as there was no .doubt of the right of the respondent to the money,'legally as well as equitably, I think the surrogate was right in compelling the administrator to account for the fund received by him from Louisiana, while he was the rightful administrator here; as well as that part of the fund which he collected from debtors residing in this state.

The amount of $2068, for the cheek of $500 and the Remsen rum and sugar, and the amount received of Booth, appear to have been properly collated, or brought into hotchpot, by the surrogate, in ascertaining the share of the estate to which the respondent was entitled by the law of his father’s domicil. By that law, collation must take place as to all advances made to one of the children, by way of gifts, or marriage portions, in the nature of a dowry, or to establish such child in business, &e. The articles of the code which declare that marriage presents are not subject to collation, nor things given by a father or mother or other ascendant, by their own hands, to one of the children for his pleasure or other use, (Civil Code of Lou. art. 1322, 1323,) only relate to such inconsiderable presents as parents are in the habit of giving to their children from time to time; or as mere marriage presents, and without any intention of making advancements to them as provisions towards their establishment or support in life. But a gift from a parent to his child, which gift is intended as a marriage portion as contradis-tinguished from a mere marriage present, is subject to collation. (1 Dom. Book 2, § 3, art. 7, Partida 6, tit. 15, L. 3.) Indeed the rule of the civil law is substantially the same as ours on this subject; except that, by the civil law, the parent is not permitted to exclude from collation, even by an express declaration of his intention on the subject, advances which have been made beyond the portions of his estate which he would be at liberty to dispose of by will. And collation is due of every gift.of a parent, to a child, as a portion or an advancement, unless the donor has in terms exempted it from such collation. (Civil Code of Lou. art. 1308.)

There is no evidence that the Delafifeld debt was a gift to the appellant. And it was a sura of money due to the intestate, at the time of his death, which the appellant received in his character of administrator. He was therefore properly charged with it, as a part of the assets in his hands to be administered. Even if the appellant’s statement of the contents of the decedent’s letter could be considered as evidence in his own favor, it did not prove that the money, which by such letter he was directed to receive from the Delafields, -was intended as a gift. But' the decedent probably intended the appellant should receive the money as his agent; or perhaps as a loan until he should call for if.

The appellant was also properly charged with interest from the time of the demand of the respondent’s distributive share of the estate. After that, he continued to hold the money in his own wrong; and he could not, in equity, be permitted to deprive the respondent of the interest, while he was keeping him out of his share of the estate by a protracted litigation. Indeed, by the Louisiana civil code, the heir who is put into provisional possession, of the property of a person whose continued existence is not known, is bound to account for a portion of the interest, of the fund, which accrues before such absentee appears to demand the same. {Art. 69.) The appellant was also properly charged with that portion of the costs of the litigation to which the respondent was subjected, after he had furnished such evidence of his identity as ought to have been satisfactory.

The sentence and decree appealed from must therefore be affirmed, with costs. And the appellant must also pay to the respondent the interest, upon the amount of the decree, from the 12th of July, 1841, the time fixed by the surrogate for the payment of such decree; which interest is awarded to him as his damages for the delay and vexation caused by this appeal.


text:
    In the matter of Thompson.
    Where an ex parte application is made to a surrogate, for the purpose of obtainmg a revocation of letters testamentary, granted to another person, and the application is denied, the administrator is a necessary party to an appeal from the surrogate’s order, denying the application; although such administrator was not notified to attend and oppose the application before the surrogate.
    A will duly executed, which in terms revokes all formér wills, and appoints executors, is a valid revocation of a former will, disposing of a part of the testator’s property; although the will containing such clause of revocation makes no disposition of the property embraced in the former will.
    This case came before the chancellor upon an ex parte appeal, from an order of the surrogate of New-York. The object of the application to the surrogate was to obtain the revocation of letters of administration, with the will annexed, which had been granted upon the estate of a decedent who had died in Ireland, and to be permitted to prove a previous will, in relation to certain personal property of the testator situated in this state. The surrogate rejected the application, without citing the administrator to appear before him. And the appellant appealed from that decision, without making the administrator with the will annexed a party to the appeal. Nor was there any petition of appeal presented to this court.

      J. Anthon, for the appellant.
   The Chancellor.

This proceeding is altogether irregular; and if there was any reason to doubt that the will, executed in Ireland, was an absolute revocation of the former will executed in this state, I should direct the case to stand over, and that the administrator with the will annexed should be brought before this court, by a proper petition of appeal, making him a respondent therein. It is perfectly evident, however, that the subsequent will, made in Ireland, was a revocation of the will made in New-York; and that the Irish will was intended to dispose of all the testator’s property, either here or elsewhere. The first clause of the Irish will, in terms, revokes all former wills. And if that will itself had not disposed of the property here, the proper course for the next of bin was to call upon the administrator with the will annexed, to account for and pay over to them the part of the property as to which the testator had died intestate.

But the Irish will does in fact dispose of [til the decedent’s property. The testator devises all his estate real and personal, except his household goods and his personal property in New-Yorlc, to Fulton, upon certain trusts. The trust estate does not of course embrace the testator’s household goods, or his personal property here. But a subsequent clause of the will disposes of 1 he household goods to his wife. And the residuary clause of the will, in which the testator gives all the residue of his effects to such of the grandchildren of his brother and sisters as should be living at the time of his death, not only disposes of the personal property in this country which was excepted from the bequest in trust, but of any other personal estate, wherever situated, not embraced in the trust clause, and which was not effectually disposed of by other parts of the will. It would, therefore, be a useless expense to require the appellant to file a petition of appeal, to bring the. administrator with the will annexed before this' court.

An order must therefore be entered dismissing the appeal.


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    Balcom and wife vs. The New-York Life Insurance and Trust Company.
    The 200th rule of the court of chancery, prohibiting a defendant from answering a charge in the complainant’s bill, by stating his mere ignorance thereof, where an answer on oath is waived, applies to the answer of a corporation, as well as to the answer of a natural person.
    But that rule does not prevent the defendant from inserting any thing in his answer which is material to his defence.
    To protect a defendant, as a bona fide purchaser or mortgagee without notice, he must, in his answer, deny notice of the complainant’s prior equity, although notice to him is not charged in the bill. And he must also deny notice of circumstances charged in the bill from which notice can be inferred.
    Where an exception to an answer for impertinence, embraces matters which are proper and material to the defendant’s defence, the exception will be overruled.
    An exception from impertinence cannot be allowed in part only.
    This was an appeal, from an order of the vice chancellor of the eighth circuit, disallowing exceptions to a master’s report, as to the fourth, fifth, sixth and eighth exceptions to the defendant’s answer, for impertinence. The object of the complainants was to establish an equitable title to land, as against the defendants, who had taken a mortgage thereon, from the holder of the legal title, upon a loan of money. An answer on oath was waived; and the subject matters of the three first exceptions were objected to, as impertinent, under the provisions of the 200th rule of the court as revised and established in 1844.

      J. Rhoades, for the appellants.

      C. Stevens, for the respondents.
   The Chancellor.

The counsel for the respondents is right, in supposing that the provisions of the 200th rule apply to the answer of a corporation; although the answer of a corporation need not be put in upon oath, even where there is no formal waiver of a sworn answer, in the complainant’s bill. By the 40th rule, no exceptions for insufficiency are allowed to an answer which is put in without oath; and the general traverse is all that is necessary to put in issue allegations in the bill of which the defendant is ignorant, and which he is unwilling to admit. A circumstantial denial of allegations as to which the defendant is entirely-ignorant, is therefore needless prolixity, in such an answer; whether that answer is put in by a corporation or by a natural person. The exceptions which are in controversy here, however, do not come within the principle of the 200th rule. For, in adopting that rule, it was not the intention of the court to prevent the defendant from inserting any thing in his answer which was material to his defence. Here it was necessary for the defendants, in order to protect themselves as bona fide mortgagees, against the equitable title to the land set up by the complainants, in their bill, to set up and insist upon an entire ignorance of any of the facts, upon which that equity is based, at the time they loaned their money upon the security of the mortgage. For where a defendant wishes to protect himself as a bona fide purchaser, or mortgagee, he must, in his answer, explicitly deny all notice of the prior equity; although it is not alleged in the bill that he had such notice. And he must also deny fully, and in the most precise terms, every circumstance from which notice of the prior equity could be inferred. It would not therefore have been sufficient for the defendants, in this case, to have merely put the fact of the existence of the complainants’ equity in issue by a general traverse. But it was also necessary for the defendants to assert that they had no notice or information of the complainants’ claim, and were in fact entirely ignorant thereof, at the time they advanced the money upon the security of the mortgage on the premises. The matter of the fourth exception to the answer, and a part of the matter of the fifth exception, appear to be essential to the defence of the defendants, as bona fide mortgagees, in case the complainants shall succeed in showing that they were in equity the real owners of the mortgaged premises, and that the mortgagor only held the legal title as their trustee. The matter of the sixth exception is more doubtful, but it is in effect a denial of any knowledge, information or notice of the circumstances stated in the bill, as having occurred at the time of the execution of the deed to Mix, upon which the equity of the complainants’ claim is partly based. So much of the matter of the eighth exception as sets out the abstract of the .title to the land, taken from the records, appears to have been useless. And if that part of the. answer alone had been embraced in the exception, it might have been properly stricken out, as rendering the answer unnecessarily prolix. But this exception covers too much; as the rest of the matter included therein appears to be material and proper to the defence.. And as exceptions for impertinence cannot be allowed in part, the whole of this eighth exception should have been disallowed.

The exception to the master’s report was well taken, and should have been allowed by the vice chancellor; as it is admitted by counsel that the exception as served did not embrace the seventh exception to the answer. The order appealed from must therefore be reversed; and the exceptions to the master’s report, as served on the solicitor for the complainants, must be allowed. And the complainants must pay to the defendants the costs of the exception to the report and of the hearing thereon, and the costs upon this appeal; to be offset against the costs to which the complainants may be entitled, upon the exceptions to the answer which are finally allowed, and the balance only is to be paid.