text:
    Shaw vs. Coster and others.
    A sheriff who by virtue of an execution levies upon property claimed by a third person, cannot file a bill of interpleader against such third person and the plaintiff in the execution, to have them settle the right to the property between themselves.
    The complainant in a hill of interpleader must annex to his bill an affidavit that there is no collusion between him and any of the other parties. And if the bill is filed in relation to moneys in his hands, he must bring the money into court or offer, by his bill to do so; to enable the court to compel a compliance with such offer, upon the application of either of the other parties.
    In a bill of interpleader the complainant should show that he is a mere stakeholder, having no personal interest in the controversy between the parties claiming the funds in his hands, and that their respective claims against him are of the same nature or character. He cannot sustain an interpleading suit, if he is obliged to admit that as to either of the defendants he is a wrong-doer.
    The complainant in an interpleading bill must show that he is ignorant of the rights of the respective parties, who are called upon by him to inter-plead and settle their rights between themselves; or at least, that there is some doubt, in point of fact, to which claimant the debt or duty belongs. And therefore, if he slates a case in his bill which shows that one defendant is entitled to the debt or duty, and that the other is not, both defendants may demur.
    Where it appeared upon the face of a bill of interpleader that it was not a proper case for such a bill, and the defendants, instead of demurring, put in answers and went to a hearing upon pleadings and proofs, insisting in their answers, however, that the bill was improperly filed, the chancellor, upon a dismissal of the bill, only allowed the defendants the costs to which they would have been entitled if they had demurred, and the bill had been dismissed upon the allowance of the demurrers.
    May 5.
    This case came before the chancellor upon the appeal of the complainant from a decree of the vice chancellor of the first circuit, dismissing the bill as to all the defendants; and upon the cross-appeal of the defendants, Coster and Dey, from so much of the vice chancellor’s decision as refused them their costs against the complainant. The complainant, as the sheriff of New-York, in February, 1829, by virtue of an execution in favor of the defendants, T. L. & W. W. Chester, against Bailey and Haskell, levied upon the furniture and property in Washington Hall, as the property of Bailey, one of the defendants in the execution. The property, however, had been mortgaged to the defendant Coster, the owner of Washington Hall, who had leased the house to Bailey. And Coster claimed the property under his mortgage, the greater part of the moneys secured by which was then due, and he forbid the sheriff’s meddling with the property. An arrangement was subsequently made between Bailey and Coster, and Waterman and Bosquet, by which the lease was surrendered by Bailey and his interest in the property assigned to Waterman and Bosquet 5 who paid a part of the debt due to Coster and took a new lease from him, and at the same time gave to him another mortgage upon the property, to secure the balance of the debt due from Bailey, and also to secure the payment of the rent which should become due under the new lease. This new arrangement was made subsequent to the return day of the execution of the Chesters. Waterman and Bosquet afterwards sold their interest in the lease and in the property to Jump and Artiguenare, who went into possession. In February, 1830, Coster distrained upon the property for the rent due under the new lease, and also advertised the property for sale under his mortgage. Jump thereupon filed a bill in chancery against Coster and Artiguenare claiming the property, and the defendant, Dey was by the consent of the parties appointed the receiver of the property in that suit. Both Coster and the Chesters claimed a preference in payment out of the property ; but as it was supposed the property would sell for enough to pay both debts, it was agreed between the sheriff and Dey, the receiver, that the property should be sold by an auctioneer, and that the rights of the several claimants should be determined afterwards. This arrangement was assented to by the several parties to the suit in which Dey was receiver. But the Chesters, although they were willing to co-operate in the sale, insisted upon the sheriff’s retaining the whole control of the proceeds of the sale to the extent of their execution. And previous to the sale Dey, the receiver, gave a formal notice to the sheriff that the property was in his hands as such receiver, and that he claimed the entire control over it, and forbid the sheriff from interfering with it. After the sale it was found that the proceeds were not sufficient to satisfy the mortgage and the execution ; and Dey, the receiver, forbid the auctioneer from paying any part of the proceeds to the sheriff to apply on the execution, and the Chesters forbid his paying it to Dey until the execution was satisfied. The solvency of the auctioneer being doubted, the sheriff and receiver agreed to withdraw the money from his hands. And $880, the amount in controversy between them, was thereupon deposited by them in bank, in their joint names, to abide the further decision which might be made upon the claims of the respective parties to the money. The Chesters subsequently ruled the sheriff to return the execution ; and under the direction of the court he made a special return stating the several claims, the sale of the property, and that the money remained in his hands subject to those claims. The Chesters subsequently offered to indemnify the sheriff against any claim upon him for the money, if he would pay it over to them ; and sent him a bond of indemnity, but he neglected to make any answer to the application. He afterwards filed his bill of interpleader in this cause, setting forth the facts ; but without annexing thereto the usual affidavit denying collusion with either of the parties. Neither did the bill contain any offer to bring the money into court. But the complainant stated that he could not bring it into court in consequence of the arrangement made with Dey the receiver, by which the money was deposited in bank in their -joint names. Jump suffered the bill to be taken as confessed, for want of an answer. The defendants Coster, Dey and the Chesters put in their several answers; all contesting the right of the complainant to file a bill of interpleader, and setting up their respective claims to the fund in dispute. The cause was heard as to them upon pleadings and proofs. The vice chancellor decided that it was not a proper case for an inter-pleading suit; and he therefore dismissed the bill with costs as to the Chesters, who had offered to indemnify the sheriff upon his paying the amount of their execution ; but without costs as to the other defendants. (See 2 Echo. Ch. Rep. 405.)

      George Curtis, for the appellant.
    This being a case in which the several defendants claim the same fund, it is a proper case for a bill of interpleader. That the complainant is sheriff forms no valid objection; and neither is it an objection that the fund is not under his entire or sole control. The bond of indemnity offered by one of the defendants does not form an objection to the filing a bill of inter-pleader, because it was not offered in time. (2 Hen. & Munf. 506. 6 Conn. R. 421. 2 Bay, 67. 2 Black. Rep. 1064.)

      C. Bushnell, for the Chesters.
    The sheriff having made the money in dispute under Chesters’ execution, cannot file a bill of interpleader to compel them to litigate the title of other claimants to the chattels levied on. Chesters’ claim is for money; the other claims are for damages for a trespass ; they are not, therefore, claims to the same thing. (1 Cowen, 703.) The sheriff is not in fact nor in intendment of law a stake-holder, or innocent bailee, or mutual or accidental depository, nor in any privity with the opposing parties. The protection of the sheriff is ample and perfect by the long established course of the common law, not to sell until an inquisition ; then to sell on an indemnity to his satisfaction, or to stand the action for a false return. To permit such a bill, would compel the court of chancery to try all questions of litigated title to personal property levied on by execution. The directions of Chesters’ attorney to the sheriff do not confer on him the right to file a bill of interpleader. The directions of Chesters’ attorney did not, by any just construction, amount to a consent to vary the position of the sheriff into that of a stake-holder, but merely to his retaining the money for his indemnity, in case claims should be made in the ordinary mode against a sheriff. The fact that no suit had been brought against the sheriff at the time the bond of indemnity was delivered to him, is an objection to the filing of a bill of inter-pleader. The sheriff having parted with the control of the fund to the attorney of the opposite party, is not in a condition to file such a bill; because he has not the fund in his own hand, and because such an act is a collusion. If the bill is properly filed, the fund must be awarded to the Chesters, upon the allegations of the bill and the answers of Coster and Dey. The return on the writ is conclusive as to Chesters’ right, unless a better title appear. Coster’s prior mortgage, under which he never' took possession, was in effect cancelled by him upon a sale by the mortgagor, with his assent, on taking new notes from the mortgagor’s vendees and a new mortgage from them as absolute owners. Coster’s ignorance of the execution, and his having no intention to part with the lien of the prior mortgage, did not preserve it; since he in effect cancelled it by taking new securities inconsistent with it. Dey cannot have the property, because the receivership is ended ; and also, because this property was in possession of the sheriff when Dey was appointed receiver. And neither the sheriff nor the Chesters were parties to the suit in which Dey was appointed receiver, and are not affected by it; and as by his own showing, Coster must be first paid, and all the funds in hand will be insuificient for that purpose. (2 Ves. & Beame, 200, 209, 284. 1 Cowen, 710.)

      B. W. Bonney, for Coster and Dey.
    The cause was not in readiness for a final hearing and decree as between the parties defendants ; and the only question upon which the vice chancellor was required to pass was, as to the propriety of filing the bill and of making the several defendants parties : in other words, whether or not this is a proper case for a bill of interpleader. The defendant John G. Coster shows prima facie a good right to the money in question. And the decree, so far as he is concerned, should have been, either, 1st. If the court were of opinion, upon all the facts disclosed, that it is a proper case for a bill of interpleader, the usual order that the bill so far as the complainant is concerned be dismissed, and that the defendants Coster and Chesters, who claim the fund in controversy, inter-plead, &c.; or, 2d. If the court were of opinion that the bill has been unnecessarily and improperly filed, that it be dismissed with costs. The defendant Anthony Dey claims no personal interest whatever in the fund in question. He holds it as receiver under the order made by the court of chancery, in the case of Jump against Joseph Artiguenare and others ; and as such, is entitled to be paid his costs, by the complainant or out of the fund, whatever disposition may be made of it. The decree of the vice chancellor dismissing the bill without costs as to the defendants Coster and Dey is erroneous.
   The Chancellor.

The vice chancellor was clearly right in supposing this was not a proper case for a bill of interpleader ; even if the complainant’s allegations had left it doubtful whether he was entitled to the property in question under the execution in favor of the Chesters, or whether it belonged to the defendant Dey in his character of receiver in the suit of Jump against Coster and Artiguenare. Judge Story, in his very valuable treatises on Equity Jurisprudence and on Equity Pleading, has so fully and so correctly stated the law on the subject of inter-pleader, that it is only necessary to refer to those works, in a judicial opinion. In the first place, the complainant in a bill of interpleader must annex an affidavit to his bill that there is no collusion between him and any of the other parties. And if the bill is filed in relation to moneys in his hands, he must either bring the money into court, or at least must offer to do so by his bill; so that the court may by its order compel a compliance with that offer, upon the application of either of the defendants. (2 Story’s Eq. 116, § 809. Story’s Eq. Pl, 237, § 291.) The complainant must also show that he is in the situation of a mere stake-holder, having no personal interest in the controversy between the defendants, and that their respective claims against him are of the same nature or character. (2 Story’s Eq. 118, § 812. Story’s Eq. Pl. 239, §294, 297.)

In the case under consideration, there was no privity between the complainant and the defendant Coster, in relation to the property in Washington Hall. And if the deputy sheriff ever in fact levied upon that property, by virtue of the execution in favor of the Chesters, the complainant claimed title to the property, as sheriff, adverse to the title of the defendant Coster under- his mortgage. Frequent attempts have been made by sheriffs to sustain bills of interpleader where the property levied on by them has been claimed by third persons, adverse to the claim of the sheriff and the creditor under the execution. But I have not been able to find any case, in which the question has been deliberately examined, where a court of equity has decided in favor of such a proceeding. Indeed it would be contrary to every principle of justice to perpait a sheriff to seize property, claimed by a third person, under an execution against a judgment debtor, and then to compel such third person to come into a court of equity and liquidate the question of right to such property with the creditor in the execution, instead of trying the question at law, against the sheriff himself as the wrongdoer. In Slingsby v. Boulton, (1 Ves. & B. Rep. 334,) where the goods seized and sold by the sheriff were claimed by trustees under a settlement, who brought an action of trover therefor against him, Lord Eldon refused an injunction, upon a bill of interpleader filed against the trustees and the creditor in the execution. He said the sheriff acted at his peril in selling the goods, and was concluded from stating a case of interpleader, in which the complainant always admitted a title in all of the defendants against himself. That a person could not file a bill of interpleader who was obliged to put his case upon this; that as to some of the defendants he was a wrongdoer. From the marginal note of the reporter to the case of Stoors v. Payne and others, (4 Hen. & Munf. Rep. 506,) it would appear that the chancellor had decided that a bill of interpleader might be filed by a sheriff to settle the question between the claimant of the property and the creditor in the execution. But upon looking at the case itself, the decision appears to be the other way. It is true the chancellor says the plaintiff may file his bill if he pleases ; but he does not intimate an opinion that he can succeed in such suit. As I understand the case, it was an ex parte application for an injunction, upon a bill of interpleader ; which application was denied on the ground that the Virginia statute had made ample provision for the protection of the sheriff without the necessity of resorting to a court of equity for relief. And the -permission to file the bill was nothing more than saying, "If you wish to have this question as to your right to proceed by a bill of interpleader more deliberately settled, and in a manner in which you can have the benefit of a review by the court of appeals, you can file your bill and proceed in your suit; though I will not grant the injunction in the meantime.”

The case of Nash v. Smith, referred to in the opinion of the vice chancellor, from the Connecticut reports, is not an authority in favor of the sheriff’s filing a bill of inter-pleader in a case like the present. In that case neither of the defendants in the bill of interpleader claimed title to the property adversely to Silliman against whom the process in the hands of the constable was issued. The constable therefore had no interest adverse to the claim of either party, as each had put into his hands process against the same property : the one claiming it as the individual property of Silliman, and the other as the partnership property of Silliman and Cook. There was therefore a privity between the constable and each of the defendants. And the only question was whether the proceeds of the sale which had been rightfully made, should be applied to the payment of the individual debt of Silliman, which belonged to the defendant Mitchell, or of the partnership debt of Silliman and Cook, which belonged to the other defendants. That was clearly a proper case for a bill of inter-pleader ; if the complainant, instead of paying the money over to one of the parties in satisfaction of the execution against Silliman individually, had retained the proceeds of the property which he had rightfully sold, and had offered to bring it into court to abide the decision upon the bill of interpleader.

In the case before me, whatever may be the rights of the several defendants upon the case as stated by the bill, I am inclined to think the bill itself was defective in attempting to state the whole facts on which the legal rights of each depended ; instead of stating that the defendant Coster and the receiver claimed them under an alleged mortgage which had become due previous to the issuing of the execution, and which mortgage had been given up after the return day of such execution, and another one given in its place by the assignees of Bailey. This is what Lord Rossylyn probably meant as “ suggesting a case,” in Dungey v. Angove, (2 Ves. jun. 311;) which he says an inter-pleading bill never does. As I understand the law, the complainant in a bill of interpleader must show that he is ignorant of the rights of the respective parties who are called upon by him to interplead. Or that at least there is some doubt, in point of fact, to which claimant the debt or duty belongs; so that he cannot safely pay or render It to one, without risk of being made liable for the same debt or duty to the other> And therefore if the complainant states a case in his bill which clearly shows that one defendant is entitled to the debt or duty, and that the other is not, both defendants may demur. The one upon the ground that the complainant has a perfect defence at law, against his claim ; and the other on the ground that- the complainant has neither a legal or an equitable defence to his claim, and has therefore no right to call upon him to inter-plead with a third person who claims without right. The vice chancellor, upon any view I have been able to take of this case, was clearly right in dismissing this bill as to all the defendants. It should, however, have been dismissed without prejudice to the rights of the complainants in any future litigation with either of the defendants ; so as not to conclude him upon the merits of their respective claims, which could not be legally adjudicated in this form of proceeding.

Upon the question of costs, I see no good reason why Coster and Dey should not have their costs to which they had been necessarily subjected by the filing of this bill. But as the bill upon its face was not a proper bill of inter-pleader, and the rights of the parties could not be settled under it, I think all of the defendants should have demurred ; instead of subjecting themselves to the useless expense of putting in answers and going into proofs, and at the same time precluding the possibility of having the case settled upon its merits, by insisting in their answers that the bill was improperly filed.

The decree dismissing the bill as to all the defendants must therefore be affirmed, but without prejudice to the complainant’s rights in any future litigation with either of the defendants. But it must be modified as to costs, so as to allow to Coster and Dey the same costs which they would have been entitled to if they had demurred to the bill and the same had been dismissed upon the allowance of the demurrer. And the Chesters, instead of being allowed full costs, must only be allowed their costs to the same extent. Neither party is to have costs as against the other upon these appeals.


source: Caselaw Access Project

author: The Chancellor.

license: Public Domain

text:
    Nicholl vs. Nicholl and others.
    Where a. master, who has neglected to file security for the faithful discharge of the duties of his office, assumes to act as such master, and sells mortgaged premises under a decree of foreclosure, and the report of the sale is confirmed by the court, the objection that the master had not given security, as required by law, cannot be raised in a collateral suit so as to affect the title of the purchaser at such sale.
    The remedy of the party whose property is sold, if the objection to the master’s authority to sell is valid, is by an application in the foreclosure suit to have the sale set aside for irregularity* But such an objection, even if raised in the foreclosure suit, will not bo listened to after a great lapse of time*
    The bill in this cause was filed to set aside various sales and conveyances of lands claimed by the complainant, and among other things, to set aside a sale made under a decree of the vice chancellor of the first circuit, in a suit for the foreclosure of a mortgage.

      G. Miller, for the complainant.

      J. Dikeman, for the defendants.
   The Chancellor.

This case comes before the court upon general demurrers to the complainant’s bill. The bill contains a great variety of charges and allegations, some of which would probably have entitled the complainant to some relief if he had applied while he had any interest in the property in dispute. He has no pretence of claim at this time to the West Neck property, which he had previously mortgaged. It appears by his own showing, that in October, 1830, he was discharged under the insolvent act, and made an assignment of all his property to Joseph C. Albertson, for the benefit of his creditors ; and that the assignee afterwards sold the equity of redemption in the West Neck property to Samuel B. Nicholl. Although the property was sold for a very small sum I do not find any allegation that the assignee was defrauded in that sale. The mortgages were afterwards foreclosed in equity, and this complainant, as well as the purchaser of the equity of redemption from his assignee, under the insolvent act, were parties. The sale in that foreclosure suit, therefore, transferred all the complainant’s equitable as well as his legal claim, if he had any, to the purchaser. And the decree in that suit cannot be opened upon this bill. It is alleged that Halsey, the master, had not filed a bond with sureties •, and therefore was incompetent to act. I am inclined to think that objection cannot be raised even in the original suit, after this lapse of time, if it was ever valid. Certainly it cannot be raised in a collateral suit, after the master has made the sale, and the same has been confirmed by the court. The remedy of the complainant, if the sale was irregular, was to apply to the vice chancellor, in that suit, to set the sale aside ; and to direct a new sale under that decree.

In relation to every other claim made by this bill, the complainant, by his own showing, has no right to bring the suit. By his assignment under the insolvent act all his interest in the estate, or in the rents and profits which had been previously received by any of the defendants, passed to Albertson, the assignee, for the benefit of the creditors. Albertson, therefore, was the proper party to bring the suit, if there was any good ground for relief here as to any of the matters stated in the bill; and a decree in this suit either in favor of or against the complainant, would not prevent Albertson from litigating the same matter over again with the defendants. The demurrers are, therefore, well taken. For by the complainant’s own showing he has no title, to sue, and the bill as to him, is destitute of all equity whatever.

There must be a decree allowing the demurrer and dismissing the bill with costs.


author: McCoun, V. C.

text:
    Barrow vs. Richard and others.
    Where the owner of a block of ground in the city of New-York divided it into lots, and sold the lots, from time to time, to different individuals, and the conveyances of the lots contained mutual covenants between the grantor and grantees, respectively, against the erection of any livery stable, slaughter-house, glue factory, &c. upon any part of the lots conveyed, or any other manufactory, trade or business, which might be anywise offensive te the neighboring inhabitants ; Held, that the covenants in the deeds of the different lots were for the mutual benefit and protection of all the purchasers of lots in the block. And although a previous purchaser from the owner of the block could not sue at law, upon the covenant in the deed to a subsequent purchaser, the court of chancery might protect him by injunction against the carrying on of any noxious business, or trade, upon the lot of such subsequent purchaser.
    Whether a subsequent purchaser from the owner of the block could maintain a suit at law in his own name against a prior purchaser, as assignee of the covenants in the deed of such prior purchaser; Qucere ?

    A very highly colored description of the noxious effects of coal dust, in a sworn bill in chancery, although somewhat poetical, cannot be treated by the court as a mere poetic fiction; but upon demurrer to the bill, such coal dust will be considered as a real nuisance.
    May 5.
    This was an appeal from a decision of the vice chancellor of the first circuit, overruling the demurrer of the defendants to the complainant’s bill. In 1825, T. R. Mercein was the owner of a block of ground in the city of New-York, between McDougal street and the Sixth avenue, on the south side of Waverley Place ; which he divided into thirty-nine building lots, and made a map of such division, and filed it in the office of the register of deeds. On the 22d of March, 1825, Mercein sold and conveyed five of the lots to four different persons in severalty. In each of the conveyances a condition was inserted, that the conveyance should be void if there should at any time be erected, made, carried on, permitted or suffered, upon any part of the premises so conveyed, any livery stable, slaughter house, tallow chandlery, smith’s forge, furnace, brass or other foundery, nail or other iron factory, or any manufactory for the making of glue, varnish, vitriol, ink or turpentine, or for dressing or keeping skins or hides, or any distillery or brewery, or any other manufactory, trade or business whatsoever which should or might be in anywise offensive to the neighboring inhabitants. And Mercein subsequently sold more than twenty other lots in the same block, to different persons ; and among them lot No. 11, subsequently purchased by the complainant, and lots No. 12 and 13, on which the defendants afterwards established their coal yard. In the conveyances of all of these lots, a similar provision was inserted, against the use of the lots for any noxious business, or any trade or business which might be offensive to the neighboring inhabitants; except that in these subsequent conveyances, the provision was in the shape of a mutual covenant between the grantor and grantee, instead of being in the form of a condition, as in the deeds for the first five lots.
    The complainant had erected a valuable dwelling house, of the first class, upon his lot No. 11. And the defendants had established a coal yard on the adjoining lots, 12 and 13, which the complainant insisted was offensive to the neighboring inhabitants, and was a violation of the covenants contained in the deeds of those lots from Mercein. The object of the bill, therefore, was to compel the defendants to remove their coal yard, and for a perpetual injunction against the use of the lots for any noxious or offensive purpose, contrary to those covenants.
   The following opinion was delivered by the vice chancellor upon overruling the demurrer :

McCoun, V. C.

The great question is, upon the effects of the covenants in the deeds against offensive trades and business, and how far the complainant can avail himself of them. This is an important question, not only as respects this particular property, but in regard to other parts of the city, where a large amount of real estate is held under deeds and leases containing similar covenants or conditions. The clauses inserted in a few of the deeds executed by Mr. Mercein for the lots which he first sold, are in the form of conditions—the legal effect of which would be to defeat the estate granted, in case of a breach of the condition, but no other person than the grantor or his heirs can, at law, take advantage Of the condition and re-enter for a forfeiture or breach. In the subsequent deeds under which both the complainants and defendants hold, this provision is introduced by way of covenant. And though it is expressed to be a covenant mutually made between the parties to the deed, their heirs and assigns, its only object can be to restrain the grantee and his heirs and assigns, and not the grantor and his heirs. For having sold and conveyed the fee simple of the lots, the grantor and his heirs can have no use or enjoyment of the property afterwards, and therefore no need of covenants on their part, restricting them in the use or enjoyment. We are therefore to regard it as a several covenant of the grantee, made to and with the grantor, j but it is nevertheless a covenant running with the land, and 1 as such is binding upon the heir of the covenantor, and any subsequent purchaser under him, as assignee of the land 5 for the covenant follows the land, and becomes obligatory j upon those who succeed to the same land, whether by descent or purchase. (2 Sugden on Vend. 78. Platt on Cov. 461.)

The object of these covenants on the part of purchasers, and the reason for making it either a condition of the sale of each lot, or requiring such covenants, is very manifest. Mr. Mercein owned all the lots in the block, which from their location were calculated for good dwelling houses, and to form a respectable neighborhood. In disposing of the lots it tvas very important to him that the sale of one or more should not impair the value or prejudice the sales of the rest; and hence he took care to lay the purchasers under the restrictions contained in the covenants, as to the use to be made of the lots ; thus endeavoring to enhance the value, and to encourage the erection of elegant houses, instead of suffering any of the lots to be depreciated by the introduction of stables or manufactories or business of any kind that might prove offensive or injurious to the character of adjoining lots or of the immediate neighborhood. In this respect the covenants were to operate for the personal benefit of Mr. Mercein while he remained the owner of any lot in the block, but if he has or shall sell off every lot, and part with all his interest in the property, (and it does not appear by the bill how the fact is,) then he would seem to have no longer any interest in the covenants, since by a breach which might subsequently be committed he would not be injured. But the question is not now upon the continuing effect of the covenants in favor of Mr. Mercein, or as to his rights and the remedies which he could pursue for a non-performance. The question now is between the different grantees of Mr. Mercein in respect to their several lots, whether one of such grantees or a purchaser under him can claim any benefit of the covenant made to and with Mr. Mercein, or can have any remedy against another grantee for a breach of such covenant. These covenants upon their face purport to include the “ heirs and assigns” of both contracting parties, It has already been shown how far these covenants bind the heirs and assigns of the covenantor or purchaser, as covenants running with the land. They bind in respect to the particular lot conveyed to which the covenant relates : but where is the land to which the covenant attaches itself in the hands of Mercein, and follows upon his transfer or conveyance to a third person, so as to give that third person the benefit of the covenant as his assignee 1 There is none. Selling one lot to A. in fee, and taking A.’s covenant restricting the use to be made of the lot, and then conveying an adjoining lot to B. upon similar terms, does not constitute B. the assignee of A.’s covenant. If Mr. Mercein, as the owner of land, had granted a term of years to A., taking his covenant as to the manner of using the land, and had then sold the reversion of the same land to B. in fee, here the covenant of A. would follow the conveyance of the reversion to B., and the latter would be the assignee entitled to sue at law for a violation subsequent to his purchase. It is very obvious that the present complainant does not stand in the situation, nor is he clothed with the legal rights of such an assignee.

There is one case which I have met with that bears some analogy to the present—the case of The Duke of Bedford v. Trustees of the British Museum, in 2 Sugden on Vendors, App. 361, but no where else reported. There the duke had become the owner of Southampton House, the former owner of which, in selling other ground on which the museum stood, had taken a covenant from the purchaser that he, the purchaser, would not erect buildings on the ground conveyed to him, to the northward of the line of Southampton House. Southampton House was afterwards pulled down, and on the site of it, adjacent to the museum gardens, houses had been built by the duke of Bedford, and the question was, whether in equity he had a right to restrain the trustees of the British museum from erecting buildings in the museum gardens to the northward of the line designated, contrary to the letter of the covenant. The vice chancellor, before whom the cause was first heard, had difficulty in his own mind as to the construction to be given to the covenant,, whether it was a covenant which was intended to afford additional security for certain rents reserved out of the lands conveyed to the covenantor, and if so, then he appears to. have considered that it was not a covenant which ran with the land not granted, that is, with the land upon which Southampton House was built, so as to give the subsequent owners of this land a right of action at law, as assignee of the covenant; and if no action at law could be sustained, then he considered there could be no remedy in equity. Another view, however, was urged, as the one which might be taken of the covenant, viz. that it was intended not to secure the rents merely, but to prevent such a use of the land granted as might tend to diminish either the valuable or pleasurable enjoyment of the land adjoining, on which Southampton House was built. The vice chancellor therefore stated the question to be, whether upon the whole of the deed it did appear that the covenant had been so framed as to afford evidence of an agreement between the parties and those who should represent them, on the one hand as being the owners of Southampton House, and on the other of the land adjoining, that the latter would never use this land but in the manner prescribed, either to the prejudice of the profit or pleasure of Southampton House. If the deed afforded evidence that such were the intentions of the parties to the instrument, then he said there was a clear remedy at law against the act sought to be performed, and a clear remedy in a court of equity, by way of injunction to restrain the com^ mission of that act. But a court of equity would only follow the law upon such an agreement and give the same construction to it, and restrain only where a court of law could give damages. He therefore concluded to. send the cage to a court of law to determine what the intention of the party really was. On the hearing before Lord Eldon, it is stated that he ultimately decided that under the circumstances, considering the acts of the parties, the alteration of the property and the right to relief in equity was at an end. The grounds of Lord Eldon’s determination are not given, which perhaps is to be regretted ; but from the reasoning of the vice chancellor in the case, it would seem that the principle on which that case proceeded was, that the remedy in equity was to be graduated by the remedy at law upon the covenant or agreement, and where no right of action at law could be traced to the party asking the injunction, he was not entitled to it. It appears to me, however, that this is too narrow and limited a view to be taken of the powers and jurisdiction of this court in cases of this sort; and that after all, the true doctrine which governs this case is to he found in Hills v. Miller, (3 Paige, 254,) and in cases of that class.

With respect to the question whether the business of a coal yard is an offensive trade or business, or is among the number of things guarded against by the covenants, depends upon evidence. Enough is shown by the bill to bring it within the prohibition as a private nuisance, if not a public one. The defendants cannot, upon demurrer, gainsay the facts alleged in the bill. How far this court interferes to restrain a nuisance of any sort, I will not now inquire. Upon the ground of a privilege, or easement created by the covenant, which it is competent for this court to protect the parties in the enjoyment of, and which constitute an equity in this bill, the demurrer must be overruled.

W. H. Harrison & D. B. Ogden, for the appellants.

The order of the vice chancellor of. the first circuit overruling the demurrers in this case, is erroneous. The complainant is not an assignee of the covenant set forth in the bill, nor otherwise entitled to the benefit of it. If an easement was created by the covenant, it was not attached to the land of the complainant. Neither party to the covenant or agreement, creating the easement, being at the time of making it, seized of such land. It does not appear by the bill of complaint that the putting of a coal yard upon the premises is a breach of the covenant in question. The court will not go out of the deed from Mercein, of the complainant’s lot, to look for the agreement for an easement. The covenant in the deed to the defendants, was inserted for the grantor’s benefit, and he could have released it. The complainant’s deed contains no covenants as to the other lots. The complainant could not bring an action at law on the covenant in the defendant’s deed; he has, therefore, no relief in equity, as equity follows law. (3 Paige, 254. 2 Sug. Ven. 409. Ambler, 158. 10 John. 298. Platt on Cov. 12 to 18.)

C. Bushnell, for the respondent.

As part of the consideration and terms of sale from Thomas R. Mercein, of the lots in question, and those contiguous, and by express covenants in the deeds of conveyance, an easement, or privilege of exemption from all dangerous or offensive trades or business was annexed to the said lots, and formed part of their permanent value, which run with the land, to each successive owner. (Matter of 17th street in N. Y., 1 Wendell, 267. Matter of Lewis street, N. Y. 2 Id. 473, 5. Jackson v. Beach, 1 John. Ch. Rep. 399. Jackson v. Myers, 3 John. Rep. 388. United States v. Gurney, 4 Cranch, 333. 2 Peters’ Cond. R. 133, S. C. Trustees of Watertown v. Cowen, 4 Paige, 515. Hills v. Miller, 3 Paige, 256. The City of Cincinnati v. The lessee of White, 6 Peters’ Rep. 432. Livingston v. The Mayor, &c. of New-York, 8 Wendell, 99, 105. Beatty & Richie v. Kurtz and others, 2 Peters’ Rep. 566, 578. Bleecker v. Bingham, 3 Paige, 246.) Each lot is entitled to protection in the enjoyment of this easement, as against the owners of. all the other lots,, for the time being, and these owners are bound to respect this easement the same as if they had personally executed the deeds reserving it. (Bleecker v. Bingham, 3 Paige, 246. Burnett v. Cumberland, 2 Cro. Jac. 522. 4 Cruise’s Dig. 65.) The business complained of in vhe bill is offensive, within the meaning of the covenants, and is a violation of the easement secured thereby. The ordinary jurisdiction of this court reaches this offence, this private nuisance, and will restrain it. (Gardner v. The Village of Newburgh, 2 John. Ch. Rep. 164, 5. Van Bergen v. Van Bergen, Id. 272, 3, and cases there cited. 1 Mad. Ch. 133. Id. 29. Seton v. Slade, 7 Vesey, 274, 5. Halsey v. Grant, 13 Id. 75, 76, 78, and cases before cited. Livingston v. The Mayor, &c. of New-York, 8 Wendell, 94, 99. Beatty v. Kurtz and others, 2 Peters’ Rep. 566, 578.) This demurrer should be overruled, as proof properly founded on the allegations in the bill may show more fully the consideration, scope, meaning, and value of the easement, and the injuries resulting from the violation complained of; and an equity may thus be established, which -will call for the interposition of this court, although it may be defectively alleged in the bill. (Bleecker v. Bingham, before cited. Mitford’s Ch. Pl. 173. 1 Ves. Rep. 248.)

The Chancellor. From the averments in the complainant’s bill in this case, which, upon the dumurrer, must be taken as true, there can be no doubt that the object of Mercein in having this restriction inserted in his conveyances to Richard and others, was to enhance the value of the lots to all the purchasers in the block, and was intended to be enforced for their benefit. In this respect the case is different from that of the Duke of Bedford relative to the buildings erecting in the British Museum gardens, cited in the opinion of the vice chancellor, from the 9th London edition of Sugden on Vendors. I have not access to that edition of Sugden at present, and therefore only recollect the case as read by the counsel, upon the argument ; and from the statement of it in the opinion of the vice chancellor. At the time that case came before the court of chancery in England, the splendid mansion called “ Southampton House,” once the residence of Rachel De Rouvigny, Countess of Southampton, “La belle et vertueuse Huguenolte,” and afterwards of her son-in-law, the amiable and talented Lord William Russel, who was beheaded in 1683, for his alleged participation in the Rye House plot, was no longer in existence ; but his descendant, the Duke of Bedford, had caused a number of other houses to be erected upon the lot upon which it formerly stood. A question therefore naturally arose, whether a covenant with Lady Russel, who was temporarily the equitable owner of Southampton House, was intended for the benefit of the subsequent owners of the land on which that mansion stood at the time the covenant was entered- into. And, if I recollect right, the court offered to the Duke an issue, to ascertain whether the covenant not to build upon the lands to the northward of Southampton House, was intended as an easement to the lands upon which the new buildings of the Duke were subsequently erected or not.

In the present case, I think, no one can doubt that the object of the covenants in the deeds from Mercein was to secure all the purchasers of lots in the block, against an offensive use of any other of those lots. And if lots No. 12 and 13 had been conveyed to the defendants, or to those under whom they claim, while Mercein was still the owner of lot No. 11, I am not sure that any technical difficulty would have arisen in the maintaining an action at law, upon the covenants of the grantees of the two first mentioned lots, by the complainant, as the subsequent purchaser of lot No. 11, and the assignee of the covenant for an easement for the benefit of that lot. But as No. 11 was first conveyed, and the mutual covenants in the deed refer to that lot only, and not to other lots which still.remained in the hands of Mercein, the subsequent purchasers from him of lots No. 12 and 13, would have taken their lots entirely discharged of the easement in favor of No. 11, had it not been for their covenants in their oWn deeds for the benefit of the neighboring inhabitants that is, the owners of other lots in the block. Although the complainant could not maintain a suit at law on that covenant, in his own name, and would, perhaps, be only entitled to nominal damages if the suit was brought in the name of Hercein, this court can give full effect to the covenant, by a suit in the name of the party for whose benefit and protection the covenant was intended. (See Bleecker v. Bingham, 3 Paige’s Rep. 246.)

There can be no doubt, if the allegations in the bill are true, that the use of lots No. 12 and 13 as a coal yard is a clear violation of the covenants of the grantees of those lots. The language of the covenant shows that several other uses of the lots, far less offensive than this, are in terms prohibited, on the ground that they would probably be offensive to the neighborhood. The allegation in the bill on this subject, though it is. a little poetical, cannot be considered a mere poetic fiction ; as it is sworn to by the complainant and is admitted by the demurrer. He there states that large quantities of volatile and offensive dust and smut from the coal, rise in the air, and are diffused by the wind, into the premises of the neighboring inhabitants. And in spite of all their care, such coal-dust and smut not only settles upon their -walks and their grass plats, but also on their fragrant plants and flowers, “ beclouding the brightness and beauty which a benificent Creator has given to make them pleasant to the eye, and cheering to the heart of man.” But what must be still more offensive to the ladies of the neighborhood, “ this filthy coal dust settles upon their door steps, thresholds, and windows, and enters into their dwellings, and into their carpets, their cups, their kneading troughs, their beds, their bosoms, and their lungs; discoloring their linen and their otherwise stainless raiment and robes of beauty and comfort, defacing their furniture, and blackening, besmearing and injuring every object of ¡utility, of beauty, and of taste.” Making all due allowance for the coloring which the pleader has given to this naturally dark picture, it is perfectly certain that this keeping of a coal yard upon any of these lots is a business offensive to the neighboring inhabitants, according to the spirit and intent of these restrictive covenants.

The vice chancellor was therefore right in overruling the demurrer. And the order appealed from is affirmed with costs.


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    The Farmers’ Loan and Trust Company vs. Maltby and others.
    Where a mortgagor at the time of giving the mortgage had not the legal title to the mortgaged premises, but only the equitable right to a conveyance thereof, and had previous to that time contracted to sell certain portions of the premises to persons who were then in possession under their respective contracts, and such purchasers, after the mortgagor had obtained the legal title to the premises, and after the recording of the mortgage but without any notice thereof, obtained from such mortgagor conveyances for their respective portions of the premises, and paid part of the purchase money therefW, and secured the residue by mortgage upon their several lots; Held, that the mortgagee, who merely obtained an equitable lien upon the premises by his mortgage, could only enforce such lien, as against the lots of such purchasers, to the extent of the unpaid purchase money which remained due when they received actual notice of the existence of such mortgage ; and that the recording of the mortgage was not constructive notice to such purchasers of the giving thereof by their grantor before he obtained the legal title to the mortgaged premises.
    A purchaser is not required to search for mortgages upon the premises purchased, as against his grantor, previous to the time such grantor obtained his title thereto. And where such purchaser obtains the legal title to the premises, and pays for the same, before he has actual notice of the existence of a prior equitable mortgage thereon, his legal title will prevail against the prior equity of the mortgagee.
    May 5.
    The bill in this cause was filed to foreclose a mortgage given to the complainants, by the defendant Maitby, in October, 1835, on four lots in Buffalo, numbered on a diagram annexed to the answer in this cause, lots 1, 2, 3 hnd 4 ; which mortgage was recorded on the 10th of the same month. The cause was heard upon bill and answer as to the defendants Linhart, Buchanan, and Hodge ; and upon the bill taken as confessed as to the other defendants. The facts of the case, so far as they are necessary to understand the decision of the chancellor, are stated in his opinion.

      W. C. Noyes, for the complainants.

      Nelson Ford, for the defendants Linhart, Buchanan and Hodge.
   The Chancellor.

The bill in this cause is filed to foreclose a mortgage given by the defendant Maltby on a tract of land in Buffalo, consisting of four pieces, according to a diagram annexed to the answer of the defendants Linhart, Buchanan and Hodge, numbered lots 1, 2, 3 and 4. The mortgage to the complainants was given in October, 1835, for $5000, and interest, and was recorded on the 10th of October. At that time Linhart was in possession of No. 2, Buchanan of No. 1, and Hodge of No. 3, under contracts to purchase of Maltby. And 1 infer, from the answer, that Maltby himself had not then the legal title to the premises 3 but that he had a contract to purchase from Squires, which he consummated by obtaining a deed previous to the conveyances to these three defendants, about the 1st of May, 1836. The only question therefore is whether the defendants are to lose the payments they made to Maltby, before they had actual notice of the complainants’ mortgage. If I am right in supposing that the title was not in Maltby at the time he gave the mortgage to the complainants, so that they only got an equitable lien on the premises by that mortgage, and that Maltby got his deed from Squires afterwards, then the defendants were not chargeable with constructive notice of the mortgage at the time they took their deeds from Maltby, in May, 1836. In taking conveyances from him, they would not search for mortgages against hup previous tp the date of his deed from Squires ; as they were in possession under contracts to purchase, the prior equitable lien of the complainants’ mortgage cannot prevail against the legal title which they acquired under their deeds from Maltby, unless they had notice sufficient to put them on inquiry. The defendants all deny any knowledge of the giving of the complainants’ mortgage; and upon bill and answer that must be taken to be true. The result is that Linhart’s lot, No. 2, must be discharged from the lien of the mortgage to the complainants ; as his purchase money was all paid at or before he took his deed in May, 1836. That is, a part was paid and the residue was included in Buchanan’s bond and mortgage ; who had previously assumed the payment of it for a valuable consideration, paid by Linhart in the sale of his interest in No. 1. The lots of Buchanan and Hodge are only to be charged with the amount due on their respective bonds and mortgages. Hodge’s lot is to be charged to the extent of §771, 43, and interest thereon from the 1st of May, 1837 ; that being the amount of the six last instalments on Hodge’s bond and mortgage to Maltby, the first instalment and interest to May, 1837, having been paid. And Buchanan’s lot is to be charged to the extent of §1011,12, and interest from the 1st of May, 1837 ; that being the amount of the seven last instalments on his bond and mortgage.

If the defendants had given the complainants notice of their respective claims, and had offered to pay the amounts remaining due from them respectively, in part discharge of the complainants’ mortgage, upon having their lgt,s released, it might have been a proper case to charge the complainants with the costs, for not stating their rights in the bill so as to save the necessity of the answer. But as it is, I think the costs of both parties should be paid out of the proceeds of the sale. The decree will therefore direct that lot No. 4, as mentioned in the schedule annexed to the answer, and which is first chargeable, be first sold ¡ and that out of the proceeds of that sale the master, after paying his own fees, &c. pay the costs both of the complainants and of the defendants who have answered : Secondly, that he pay $57,72, the amount disbursed by the complainants for taxes, &c, and interest thereon from 31st August, 1839; and then that he pay the amount due on the mortgage, as reported by the master, with interest from same time. If the proceeds of that sale are not sufficient to pay the balance, then that he proceed to sell the lots of Hodge and Buchanan, unless they shall, before the sale respectively, pay to him the several amounts which have become due and payable on their respective bonds and mortgages given to Maltby, with the annual interest which has become due thereon. And if they make such payments the master is to apply the moneys so received towards satisfaction of the residue of the complainant’s debt, and bring the surplus into court; with liberty to the complainants to apply for further directions from time to time, as other instalments become due. But if they do not make such payments, then their respective lots are to be sold. And the surplus moneys arising, on such sales, after paying the whole amount due and to become due on their mortgages respectively, and the master’s commissions and expenses on those particular sales, are to be paid over to the owners of those respective lots, The amounts due or to become due on their several bonds and mortgages are to be applied to the payment of the complainants’ debt, and the residue, if any, brought into court to abide its further order.

As the lots of Buchanan and Hodge are only charged to the extent of what is actually due for the purchase money of each lot, which of course the owners of those lots are obliged to pay either to the complainants or to Maltby, there is no ground for an apportionment between them. And it is of no consequence which of their lots is sold first, if the owner of neither pays the amount which has become due previous to the sale.


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    Wood vs. P. G. Keyes & L. Keyes.
    Where the testator, subsequent to the revised statutes, devised his real and personal estate to a trustee, in trust for the use, support and benefit of his daughter, and directed the trustee to manage the estate so as to make it produce the greatest income, and to keep the buildings, &c. in repair, and to apply the income of the real estate and so much of the personal estate as should be necessary from time to time for the support of the daughter, and in case she should die leaving issue, that his trustee should divide all the estate so devised to her among her lawful heirs, in equal proportions ; Held, that the remainder in fee in the testator’s estate after the death of the daughter, she having died without issue, was an interest in such estate not disposed of by the will.
    If real estate has been converted into personalty for the purposes of carrying into effect the will of the testator, and a contingency happens by which an interest in the converted fund is undisposed of by the will, such interest belongs to the heirs at law of the testator, and not to the distributees of his personal estate.
    March 19.
    Perley Keyes, by his will made in September, 1833, a few months previous to his death, after giving a legacy of $1000 to his son-in-law and $10 to his son, devised and bequeathed unto W. Wood, his son-in-law, all his real and personal estate, in trust for the use, benefit and support of the testator’s daughter Marietta, subject to the several gifts, bequests and provisions contained in the will. And he directed the trustee, who was also appointed the executor, so to husband and manage the’estate as to make it yield the greatest profit, keeping the buildings and real estate in good condition from the profits arising from the farm. He further directed the executor and trustee, from time to time to dispose of the personal property, or so much thereof as should not be needed on the farm, and to give to his daughter, from the sale of such property and from the rents and profits of the real estate, such sums as the same should yield, or so much as she should reasonably require for her support; it being left discretionary with the executor and trustee as to the amount she should yearly or quarterly receive for her support. And in case his said daughter should die leaving lawful issue, he directed the executor and trustee to divide all his estate, so devised and bequeathed to his daughter, among her lawful heirs in equal portions. And he authorized the executor and trustee to sell and convey the real estate, if necessary to carry into effect the provisions of the will and pay the legacies, but not otherwise.
    The testator, at the time of his death, left a widow and a son, the defendants in this suit, and the daughter named in the will, who were his only heirs and the only persons entitled to any portion of his estate under the statute of distributions. The daughter for whose benefit the trust was created was deaf, and nearly destitute of the power of speech, and had been so from the age of five years ; and was not of sufficient capacity to manage property with ordinary discretion, but was not wholly deprived of reason so as to be an idiot or a lunatic. A few months after the death of the testator, the daughter intermarried with Gil-man Wood, the complainant, and died about a year and a half afterwards, without having had any issue; leaving her mother and brother together with her husband surviving. After her death the executor of her father’s will relinquished his trust and was removed by the order of the surrogate, and delivered over all the personal estate and dioses in action in his hands to the brother, who was duly appointed administrator de bonis non with the will annexed. The complainant thereupon filed his bill in this cause, claiming all the residuary personal estate of the testator which had not been expended in the lifetime of the daughter, as her administrator. The defendants by their answer resisted this claim, but joined with the complainant in asking for a construction of the will, and to have the rights of the parties under the sajne fieclar’ed and established,

      B. Bagley, for the complainant.
    It was plainly the intention of the testator, Perley Keyes, to devise all his estate to his daughter Marietta. Although on the face of the will the bequest or devise was made to William Wood, as trustee ; yet by the revised statutes, the title vested absolutely in the testator’s daughter Marietta. The complainant, as the husband of Marietta, was upon her death entitled to all her choses in action and personal property in his own right, as well as administrator. The devise or bequest, although in terms made to William Wood, the trustee and executor, was by operation of law a devise to the testator’s daughter Marietta. (1 R. S. ch. 1, pt. 2, tit. 2, art. 2, Title Of Uses and Trusts. Ellis’ ex’r v. Patterson, 11 Wendell, 259.) And in case the real estate was by operation of the statutes vested in such daughter, the personal estate was also vested in her. (Vide Id. ch. 4, tit. 4; Id. pt. 2, ch. 4, tit. 4.) If the property by virtue of the will was vested in the daughter, then the personal estate and choses in action were vested in the complainant upon their intermarriage. (Whitiker v. Whitiker, 6 John. Rep. 112.)

      John Clark, for the defendants.
    The property of the testator did not by the will vest in Marietta, his daughter— but did vest for the time being in the trustee, William Wood—or was suspended in him until the contingency should happen or become impossible, on which the property was finally to vest in the issue of Marietta. (Patterson v. Ellis, 11 Wendell, 258, 266. 1 R. S. 728, § 55. Coster v. Lorillard, 14 Wendell, 265. 1 R. S. 724, § 22, 23. Ibid. 773, § 12.) The will not operating to vest any property in Marietta—she having no vested interest or right—she could transmit nothing to her husband ; who acquires nothing, therefore, by marital right. (1 R. S. 729, § 60, 61, 62.) The will creates a valid express trust in the executor William Wood, and Vests in him the legal title, he holding it in abeyance, as to its ultimate destination, determined by the daughter’s death ; at which time it reverted or descended to the heirs at law of the testator, the same as if Marietta had never existed. The defendant Perley G. Keyes has the right to the possession of the property as administrator de bonis non, and cannot be divested of such possession by chancery. The complainant has an adequate remedy at law.
   The Chancellor.

As there is no dispute between the parties as to facts, the only question is as to the rights of the parties under the will. There is no provision in the will disposing of the property in favor of the defendants, in the event of the death of the daughter without issue. It therefore necessarily follows, that if the estate is not devised in fee to the daughter, in the event of her dying without issue, this contingent remainder is an interest in the property not disposed of by the will; and must be distributed as if the testator had died intestate. In that case the brother takes one half of the undevised interest in the real estate as an heir at law of his father ; and in the other half, his mother takes a life estate, and he takes the remainder in fee, as the heirs at law of Mrs. Wood, who took that half as an heir at law of her father, and not under the will. The widow in that case also is entitled to one third of the remainder in the personal estate, as one of the distributees of the testator, and the son is entitled to another third j and the complainant, as the personal representative of his wife and the owner of her personal estate, is entitled to the other third of this remainder, to which the wife was entitled as one of the distributees of all her father’s personal estate not legally and effectually disposed of by his will. But if the daughter, notwithstanding she died without issue, took the fee in the whole residuary real and personal estate although it was not necessary for her support, then the brother is entitled to the whole real estate, as her heir, after the death of his mother ; who, under the provisions of the revised statutes, as amended in 1830, is entitled to a life estate in the real property of her child who died intestate and without issue. (1 R. S. 2d ed. 742, § 6.) And in that case the complainant, as the representative of his wife, will he entitled to the whole as the personal estate to which she was entitled under the will of her father. This, as I understand the case, is the claim set up by the complainant in his bill.

Taking into consideration the situation of the daughter at the time of making the will, and comparing it with the language of the will itself, I think it is evident the testator only meant to give the daughter a support out of his property for life, and that he did not intend to give her the estate absolutely in case she died without issue. He contemplated the event of her marriage and having issue, and has provided for that event by securing her a support out of the property during her life, and disposing of the remainder in favor of her issue after her death, So far, it is evident he only intended to give her a life interest in the income of the estate, with power to the trustee to apply a portion of the capital if, in his discretion, he thought it necessary for her support. And the limitation over to her issue is a valid limitation, having reference to the time of her death, under the provisions of the revised statutes. (1 R. S. 725, § 28.) But in the event which has happened, of her dying without issue, 1 think the testator has made no disposition of the property which remained at the time of her death. There is, therefore, a resulting trust in favor of the widow, and those who were the next of kin of the testator at the time of his death, as to the personal estate which remained at the death of the daughter. The decree must declare the rights of the parties accordingly ; and the administrator de bonis non must account for the personal estate in his hands accordingly ; that is, one third thereof to the complainant, after deducting the necessary expenses of administration and the payment of the testator’s debts, and one third thereof to the widow.

It is not stated whether any of the funds in the hands of the administrator de bonis non are the proceeds of real estate which had been sold by the executor, under the power contained in the will. Such proceeds, if there are any, are not a part of the testator’s personal estate ; hut belong to the defendants, as an interest in the real estate which in equity is not considered as converted into personalty.

If the parties cannot agree upon the distribution of the fund, there must be a reference to take the accounts in the usual manner ; reserving the question, of costs, and all other questions and directions, except as to the construction of the will and the rights of the parties under it, until the coming in and confirmation of the master’s report. But if the parties settle the accounts without subjecting the estate to the expense of a reference, then the complainant’s costs, as well as the costs of the defendants, are to be paid out of the personal estate in the hands of the administrator de bonis non. And the parties will draw up the decree accordingly.


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    Wetmore and others vs. Winans and wife.
    Where the parties to a foreclosure suit stipulated to refer it to the vice chancellor before whom the suit was pending, to ascertain whether the premises could be sold in parcels, and to report the amount due and to become due on the bond and mortgage, and that upbn filing his report, the usual decree of sale should^be entered in conformity therewith; Held, that the complainant was entitled to a decree immediately upon filing such report, and without waiting the usual time to give the defendants an opportunity to except to the report.
    A reference may be made to a vice chancellor, with his assent, although the suit is pending before him. And where there is no agreement to the contrary, the proceedings upon such reference are to be conducted in the usual manner; and the parties may except to the report as in other cases»
    May 19.
    This was an appeal from a decision of the vice chancellor of the eighth circuit, denying the application of the defendants for an order to set aside a decree of foreclosure and sale, and for leave to the defendants to except to the report of the vice chancellor, acting as a master ; to whom it was referred to compute the amount due upon the complainants’ bond and mortgage, and to report whether the mortgaged premises could be sold in separate parcels without injury to the interests of the parties. By a stipulation, signed by the solicitors of the respective parties, the answer of the defendants was withdrawn and the bill was taken as confessed. It was further stipulated that the usual order of reference, to compute the amount due and to become due on the bond and mortgage and to report whether the premises could be sold in parcels, should be made directly to the vice chancellor ; and that, upon filing his report, the usual decree of sale should be entered, in conformity with such report, and that the premises should be sold as soon thereafter as might be, in accordance with such decree, so as to sell if possible before the first of May then next. Several witnesses were examined before the vice chancellor on the reference, as to the propriety of selling the mortgaged premises in parcels, only about one third of the amount secured by the mortgage having become due, which was the only question in contest between the parties. The vice chancellor reported against a sale in parcels ; and immediately upon filing the report a decree was entered in conformity thereto, without waiting the eight days allowed in ordinary cases to except to the report.
    J. Rhoades, for the appellants.

      C. Stevens, for the respondents.
   The Chancellor.

The 197th rule authorizes a reference to a vice chancellor, with his assent, whether the suit or proceeding is before the chancellor or a vice chancellor. He may, therefore, execute the order of reference, if he thinks proper to do so, although the suit or proceeding in which such order is entered is pending before himself. In such cases, where there is no written stipulation between the parties dispensing with the Usual forms of proceeding, the reference is to be executed in the usual way; and the report is to be confirmed as in other cases, before any further proceedings can be had thereon, if it is a report which by the ordinary practice of the court requires confirmation. Exceptions may also be taken to such report, although the vice chancellor, upon such exceptions, will have to review his own decision, made while acting as a master. I see nothing objectionable, however, in this course, as it will only be in the nature of a rehearing, which is very common in the court of chancery. And if any of the parties are dissatisfied with the final decision of the vice chancellor upon the subject of the exceptions, they will have their remedy bappeal from such decision. The question therefore arises in this case upon the construction and effect of the written stipulation between the parties therein, signed by their respective solicitors. And upon a careful examination of the language of that stipulation, I think the vice chancellor was right in supposing that the complainants’ solicitor was authorized to enter this final decree immediately upon the filing of the report 5 without waiting the eight days to give the adverse parties an opportunity to except to such report. If the parties intended to reserve the usual right to except to the report, they should have stipulated that the decree might be entered, in conformity therewith, upon the filing and confirmation of the report.

Although the defendant, T. E. Winans, and his solicitor both swear that it was not intended by the stipulation to Waive the right to except, such is not the legal costruction of the written instrument. And if they have made a slip, by which the defendants have been deprived of the privilege of keeping possession of a part of the mortgaged premises for one or two years longer, without paying any part of the mortgage money which had already becomdue, I cannot say the vice chancellor, in the exercise of a sound discretion, ought to have opened the decree for the purpose of restoring to the defendants this technical advantage which they had lost. I think the affidavits., in connection with the evidence on the reference,, show that the complainants are bound by their stipulation to bid, upon the sale of the premises entire, more than the whole lot is really worth; and that the object of the defendants is to retain possession of a part of the premises, and receive the profits thereof, without paying the present or future instalments of the complainants’ debt. The correctness of the vice chancellor’s decision upon the matter of the reference is not properly before me upon this appeal, except so far as may be necessary to see whether any very great injustice will probably be done to the defendants by holding them strictly to the terms of their written stipulation. I therefore express no opinion upon the question, whether the report was right or wrong upon the point in controversy on the reference.

The order appealed from must be affirmed with costs, to be paid by the appellants ; and the proceedings are remitted to the vice chancellor.


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    Sandford vs. Sinclair.
    Upon a creditor’s bill filed to obtain satisfaction of a judgment after the return of an execution at law unsatisfied, the court of chancery is not authorized to decide upon the regularity of the judgment and execution in the court of law. But, in a proper case, the proceedings upon the creditor’s bill will be stayed a sufficient length of time to enable the defendant to apply to the court of law for an order to set aside the judgment, or the execution, for irregularity.
    As a general rule, an order for a receiver will not be granted, ex parte, until the time for the defendant’s appearance has expired and the bill has been taken as confessed against him; except where he has fraudulently withdrawn himself out of the jurisdiction of the court to avoid the service of process.
    But where it is necessary to appoint a receiver of the property of an absentee, before the time for his appearance has expired, to prevent such property from being wasted or removed beyond the. jurisdiction of the court, such receiver may be appointed ex parte.
    May 16.
    This was an appeal by the complainant from a decision of the vice chancellor of the first circuit, setting aside an ex parte order in this cause for the appointment of a receiver, upon a creditor’s bilk The defendant was an absentee, and the complainant not being able to serve the subpoena, in consequence of such absence, obtained the usual order to advertise for the defendant to appear. And the ex parte order for the appointment of a receiver was obtained before the time for appearing had expired. One other ground of objection to the complainant’s suit, and which the vice chancellor considered as sufficient to arrest the proceedings in this court, was that there had been an irregularity in obtaining a return of the execution unsatisfied, in the supreme court, after the service of a chamber order to stay proceedings until the hearing of a motion for a new trial, upon a bill of exceptions.

      L. H. Sandford, appellant, in person.

      G. A. Bicknell, for the defendant.
   The Chancellor.

The objection that the bill was prematurely filed, on account of an alleged irregularity, in proceeding in the supreme court after the service of the order of the circuit judge, is not well taken. Every court is the judge of the regularity of its own proceedings where it has jurisdiction of the case. And if the complainant proceeded irregularly, in issuing his execution in the supreme court, or in procuring a return thereof, notwithstanding the order of the circuit judge, the defendant should have applied to that court to set aside the execution, or the return of the sheriff, for the irregularity. All that it is proper for this court to do, in such a case, is to stay the suit here until the defendant has had an opportunity to apply to the court of law, for relief against the supposed irregularity. And if the defendant neglects to make such an application, or if the application is denied by the court having jurisdiction to examine and correct the supposed irregularity, this court is bound to treat the proceeding as regular ; except in cases of fraud or collusion. (Shottenkirk v. Wheeler, 3 John. Ch. R. 275.)

I think, however, the complainant did not show a case entitling him to the appointment of a receiver, ex parte, before the defendant was in default for not appearing. As a general rule, a receiver is not granted without notice to the defendant, until the time for his appearance has expired; except where such defendant has fraudulently withdrawn himself from the jurisdiction of the court, to prevent the service of process upon him. But under special circumstances, where it is necessary to appoint a receiver of the property of an absentee to prevent its being wasted or removed beyond the jurisdiction of the court, a receiver will be appointed ex parte. (See Fairfield v. Irvine, 2 Russ. Rep. 149; Gibbins v. Mainwaring, 9 Simons’ Rep. 79; The People v. Norton, 1 Paige’s Rep. 17.) In the present case it was not shown that the defendant had any property of a perishable nature, or any choses in action which would be in danger of being lost if not collected immediately ; or that any other special circumstances existed to render it necessary or proper to put a receiver upon the defendant’s property, without giving him an opportunity to be heard. The ex parte order for the receiver was therefore improperly granted ; and the decision of the vice chancellor in setting the same aside was proper, and must be affirmed with costs. But as the defendant has now appeared in the cause, the complainant is to be at liberty to renew his application upon due notice to the defendant’s solicitor.


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    In the matter of Hallet, trustee, &c.
    Where the testator devised certain specified portions of his real estate to the children of his step-daughter and to the children of his son and daughters respectively, designating all the devisees as his grandchildren, and gave to the parents of the devisees the income of those portions of his estate for life, and directed the residue of his real estate to be converted into personalty, and the proceeds thereof, together with his other personal estate, to be divided in six shares, one share of which he bequeathed to his stepdaughter, and the other five shares to his son and daughters, giving to the son and three of the daughters life interests in their respective shares, with remainder to their children if they should have any, and further directed that in case any of his children, or his step-daughter, should die without issue, the share of his estate which would have gone to such issue should be equally divided among the survivors of his children or grandchildren ; Held, that the step-daughter was not a surviving child of the testator within the intent and meaning of this last clause of the will j so as to entitle her to a portion of the share of one of the testator’s daughters who, died without having had any issue.
    As a general rule, the testator is presumed to have used words in their ordinary or primary sense, in disposing of his property by will; especially where he has in other parts of his will used different words to designate a person, who is claimed to be included in a bequest or limitation over to a class of persons, by giving a secondary sense to the words used by the testator to designate the persons composing such class.
    May 19.
    ' This was an appeal from a decision of the vice chancellor of the first circuit, upon the construction of the will of C. Sambler, deceased. The decedent by his original will, made in 1809, devised to his wife for life his farm in the city of New-York, together with the stock, farming tools and household furniture, and after her death he gave to his grand children and to their heirs forever, the said farm, as follows : “ to the children of my step-daughter Margaret, the wife of J. N. Greensb.ack, lot No. 1 of my said farm ; to the children of my daughter Susanna, the wife of W. Coulthard, lot No. 3 of my said farm j to the children of my daughter Elizabeth, the wife of Matthew Gallalee, lot No. 2 of my said farm; to the children of my son John ten acres of lot No. 4 of my said farm ; to the children of my daughter Barbara,, if she should have any, five acres, three roods and thirty-two perches of the said lot No. 4, (locating both pieces ;) and to the children of my daughter Mary, in case she should have any, lot No. 5 of my said farm.” He then directed that the remainder of the farm should be sold, and also all the residue of his real estate, at such time and on such terms as his executors should think best for the interest of his legatees, and that the proceeds thereof should be considered as personal estate, and should be divided among his legatees, as the rest of his personal estate was in his will afterwards directed to be divided. He then gave to his step-daughter Margaret, and his daughter Susannah, and to their husbands, the use of the lots specifically devised to their children respectively, during the lives of the daughter and step-daughter and of their husbands respectively; and then to be divided among their children. And he vested a similar estate in the executors, as the trustees, for the benefit of his other four children in the lands specifically devised to their children respectively.
    And after making a few small legacies, he directed his personal estate to be divided into six equal shares ; which he bequeathed as follows : "To my step-daughter Margaret, one share ; to my daughter Susannah, one share ; to the children of my daughter Elizabeth, one share ; to the children of my daughter Mary one share; to the children of my daughter Barbara, one share ; and to the children of my son John, one share”—giving to his son and the three daughters last mentioned life interests in the income of such shares respectively during their lives, and the principal then to be divided among their children. The will then contained the following clause, under which the question as to the distribution of the proceeds of the real estate directed to be sold, arose : "It is further my will, that in case of the death of any of my said children, or my said step-daughter, without lawful issue, that then the share or portion of my estate which by this my will would have gone to such issue, be divided equally among the survivors of my children or grandchildren, in the same proportion as is herein before mentioned.”
    The testator’s daughter Barbara died after her father, without ever having had any issue. And the testator’s residuary real estate having been sold by the petitioner, W. P. Hallet, who had been appointed by this court a trustee to execute the 'power of sale contained in the will, in the place of the executors who were dead, the question arose whether the representatives of the step-daughter, who was also dead, and had left children, were entitled to a portion of the proceeds which would have belonged to the issue of Barbara if she had left any, or whether it all belonged to the children and grandchildren who were of the blood of the testator. The vice chancellor decided against the representatives of the step-daughter ; as he had previously decided relative to the distribution of the personal estate. {Barnes and others v. Greenzeback and others, 1 Edw. Ch.

      Rep. 41.) From this decision the representatives of the step-daughter appealed.

      S. P. Staples & J. W. Gerard, for the appellants.

      C. O’Conner & O. Bushnell, for the respondents.
   The Chancellor.

The real estate specifically devised is, as to all the shares, limited to the grandchildren of the testator ; among whom the children of the step-daughter are designated by him by the term grandchildren. If the question arose, therefore, as to that portion of the real estate specifically devised to the children of Barbara, in case she should have any, there certainly would be much reason to suppose that by the term grandchildren in the last clause of the will, the testator had included the children of his step-daughter, who were called his grandchildren in a previous clause. In the case of Hussey v. Berkley, (2 Eden’s R. 194,) Lord Northington, upon the question whether the testatrix intended to include great grandchildren under the term grandchildren, considered the fact that she had in another part of the will called a great grandchild her granddaughter, as conclusive evidence of her intention to include such great grand-daughter in the residuary clause of the will, under the general description of her grandchildren. (See also Wigram on Wills, 29.) As a general rule, however, the testator must be presumed to have used words in their ordinary or primary sense ; especially where he has in other parts of his will used different words to designate a person, who is sought to be included in a bequest or limitation over to a class, by giving a secondary sense to the language which the testator has used to designate that class. (7 Paige’s Rep. 339.) Here the construction is to be put upon the last clause of the will as to the limitation over of the personal property only; as the proceeds of the real estate directed to be sold are to be considered as personal estate, and to be distributed and disposed of in the same manner. The question therefore is not upon the word grandchildren ; as the children of Susannah and of the stepdaughter were not entitled to any share of the personal estate, the two-sixths thereof being absolutely vested in their parents at the death of the testator. It is only that share of the testator’s estate which by the will is given to the grandchildren, or to the issue of Susannah and of the stepdaughter, to which this clause of survivorship among his grandchildren applies : that is, the two lots devised to the children of Susannah and of the step-daughter after the death of their parents, and the four lots and the four-sixths of the personal estate, and the residuary real estate converted into personalty and given to the issue of the four other children. The question therefore is, whether the testator’s surviving children, in this last clause, includes his step-daughter; so as to entitle her to a share of the personal estate and of the proceeds of the residuary real estate bequeathed to the children of Barbara. In reference to this question, I think the vice chancellor was right in supposing that the testator did not intend to include the step-daughter in the term children ; although he probably did intend to include her issue in the term grandchildren. By examining the will, it will be seen that in every other clause where any reference is made to her, and even in the commencement of this last clause, he shows that he recognized the difference between her and his real children; as he uniformly calls her by the appropriate name of step-daughter, while he calls the others his daughters, or his children. There are perhaps some grounds for believing, from the general frame of the will, that she was left out of this clause of survivorship by inadvertence, or by mistake of the scrivener who drew the instrument; and that the testator might have intended to put her and her children upon the same footing with his daughter Susannah and her children, in every respect, in the disposition of his estate. But if such was his intention, it is not sufficiently manifested, by any thing contained within the four corners of this will, to authorize this court to give effect to such an intention ; upon the settled rule of construction to which I have before referred. Here the limitation over “ to his surviving children and grandchildren, in the proportions in the will previously mentioned,” is perfectly sensible, and consistent with the situation of the testator’s family ; whether the words "survivors of my children” were used by him according to their natural import, or in a secondary sense. And as there is nothing in the context showing these words were intended to be used in a secondary sense, so as to include the step-daughter, their primary sense must prevail in giving a construction to that clause of the will.

The decision of the vice chancellor must therefore be affirmed, with costs.


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    In the matter of Waterbury and others, president and trustees of the Eagle Iron Works.
    A judgment obtained by confession against a corporation after the petition had been presented for the voluntary dissolution of such corporation, is not entitled to a preference, either as against the real or personal estate in the hands of the receiver who was subsequently appointed ; whether such confession of the judgment was by executing a bond and warrant of attorney, or by the giving of a cognovit in a suit commenced against the corporation in the usual way.
    But where a creditor of the corporation, by legal diligence, and without any voluntary assistance from the corporation or its officers, obtains a legal lien upon its real or personal estate by judgment, or by the levying of an execution thereon, before the order of the court is obtained, for the appointment of a receiver and for the dissolution of the corporation, such creditor cannot be deprived of the preference he has thus acquired.
    May 19.
    This case came before the chancellor upon an appeal by Robert Vernon, a judgment creditor of the Eagle Iron Works, from an order of the vice chancellor of the first circuit. In October, 1839, a petition was presented to the vice chancellor in this matter, by a majority of the trustees of the Eagle Iron Works, an incorporated company, for the dissolution of the corporation, pursuant to the provisions of the article of the revised statutes relative to the voluntary dissolution of corporations ; and an order was thereupon made referring the matter to a master, and requiring all persons interested to show cause before him why the corporation should not be dissolved, as directed by the statute. After the making of this order, and before the time appointed for showing cause before the master, the appellant recovered a judgment against the corporation, and issued an execution thereon to the sheriff of New-York ; who levied upon the corporate property, and had the same in his custody, undisposed of, at the time the order for a dissolution of the company was made, in February, 1840. Several other judgments were also recovered against the corporation after the order to show cause was made, and executions were issued thereon; but those judgments were entered upon cognovits given by direction of the president of the company. The receivers presented a petition to the vice chancellor, stating those facts, and insisting that the judgments which were entered by confession were void as against such receivers; and asking for an order restraining the sheriff and his deputies from selling the property on any of the executions, so that the judgment creditors might come in pro rata only with other creditors in payment out of the property of the corporation. The vice chancellor, upon the hearing of the parties, granted the prayer of the petition. And he decided and decreed that the judgment creditors had no advantage over the other creditors, by virtue of their judgments and executions, except as to the real estate of the corporation. And that as to the personal estate levied on, they must come in rateably with all the other creditors of the corporation. From this decision Yernon, who had obtained his judgment by due course of law, and not by confession, appealed.

      Gerard W. Morris, for the appellant.

      Nye Hall, for the respondents.
   The Chancellor.

So far as relates to the judgments which were obtained upon the cognovits, given after the presenting the petition for the dissolution of the corporation, there can he no doubt that the judgment creditors are entitled, to no advantage over the other creditors, either as to the real or personal estate of the corporation. The seventy-first section of the article of the revised statutes relative to the voluntary dissolution of corporations, (2 R. S. 469,) expressly declares, among other things, that all judgments confessed by the corporation, after the filing of a petition for the dissolution thereof, shall be absolutely void as against the receivers who may be appointed, and as against the creditors of the corporation. And it makes no difference whether the judgment is confessed upon a bond and warrant of attorney, given for that purpose, or after the commencement of a suit in the usual way, The object of the statute unquestionably was, to prevent the corporation or its officers from doing any act by which one creditor should get a preference over another, with their assent. And the intention of the legislature would be entirely frustrated if the courts should hold that a preference could be given by the withdrawal of a plea, or the signing of a cognovit, in a suit commenced in the usual form of commencing adversary suits. The receivers in the present case are, therefore, entitled to the real and personal estate of the corporation, for the benefit of all the creditors rateably, discharged of any lien created either by the judgments which were confessed, or by the executions which were issued thereon.

The second subdivision of the seventy-ninth section of that article of the revised statutes, (2 R. S. 471,) directing the payment of judgments to the extent of the value of the real estate of the corporation upon which they are liens, does not apply to such judgments by confession ; which judgments are void both as to the receivers and the creditors, and therefore cannot be valid liens upon the real estate, as to either. The meaning and intent of that provision relative to the payment of judgments, in the distribution of the assets of the corporation, is, that where there are judgments, which as against the receiver and the creditors are valid liens upon real estate, the judgment creditors to the extent of those liens shall have a preference. In other words, that the receiver may sell the real estate and pay the judgments which are liens thereon out of the proceeds of such sale, or so much of the judgments as the proceeds of such real estate will pay. The provision, as reported by the revisers, was to give a preference to judgments without reference to any lien they might have created upon real estate. But the legislature repudiated such a principle ; and substituted a provision which was only intended to give the judgment creditor the preference which he had actually acquired by his legal diligence. And as the dissolution of the corporation would render it impossible to enforce the lien, where the execution had not been previously issued, the receivers are directed to pay it out of the proceeds of the land ; which in that case would constitute a part of the funds in their hands for distribution.

I think, however, the vice chancellor erred, if he supposed this provision, as to the distribution of the fund in the hands of the receiver, was intended to divest the lien which any creditor had previously obtained upon any part of the personal estate of the corporation. So far as respects judgments voluntarily confessed after the commencement of the proceedings for a dissolution, I have before stated they cannot create a valid lien either upon the real or personal estate, as to the receivers or the creditors generally. But if any creditor had acquired a specific lien upon the personal estate of the corporation, by virtue of a valid judgment and execution, which execution had been levied upon the property before the order for the dissolution of the corporation, I think this court has no power to divest that lien, and to take the property out of the hands of the sheriff, for the purpose of giving it to the receiver discharged of the lien. The statute, to a certain extent, has protected the corporate funds, for the equal benefit of all the creditors, from the time of presenting the petition for a dissolution. But as it has not given to this court any control over the property until the coming in of the master’s report, and the dissolution of the corporation, if any creditor by his legal diligence, and without any voluntary assistance from the corporation or its officers, is able to get a lien either upon the real or personal estate in the meantime, I think it would be an assumption of a power which the legislature has not given to this court, to deprive him of the preference which he has thus acquired. In the case of proceedings against corporations in equity, under a previous article of the revised statutes, (2 R. S. 466, § 56,) the legislature has expressly authorized this court, at any time after the institution of proceedings against the corporation, to interfere by injunction to restrain any creditor from proceeding at law and obtaining a preference. But upon a full examination of the subject, I am satisfied the counsel for the receivers is in an error in supposing that provision is applicable to a proceeding for a voluntary dissolution of the corporation.

The conclusion at which I have arrived is, that the decision of the vice chancellor is erroneous, as to the appellant. The order appealed from, so far as his rights are concerned, must therefore be reversed. And an order must be entered declaring that the appellant is entitled to be paid the amount of his judgment and execution out of the property levied on by the sheriff. Upon the payment of his execution and the sheriff’s fees thereon, the sheriff is to deliver up the property to the receivers. But if that amount is not paid, the sheriff must proceed and sell the property, or so much thereof as is necessary to satisfy that execution ; and deliver up the residue of the property, or the proceeds thereof, to the receivers.

The appellant’s costs upon the appeal, and the gross sum of ten dollars for the costs of opposing the petition before the vice chancellor, must be paid by the receivers out of the funds of the corporation in their hands. And the proceedings are to be remitted to the vice chancellor, so that the order, as modified on this appeal, may he carried into effect under his directions.