text:
    Peter P. Brown and John P. Brown, complainants, and Joseph E. Edsall and Elias L'Hommedieu, defendants.
    1. Where an injunction bad been granted to stay a suit at law, that the defendants might make discovery, and that the complainants might have relief in the premises in this court; and the defendants, subsequently, moved to dissolve the injunction, on the ground that the equity of the bill had been fully answered, and the discovery prayed for obtained; the court refused the motion, because the bill prayed for relief as well as discovery, and in regard to a subject matter which appropriately belonged to equity jurisdiction.
    2. But the bill must show a case of manifest propriety in this court’s retaining the cause, where a suit has been commenced at law, and the party seeks to change the forum of litigation, and prays for relief as well as discovery.
    This cause was argued before the Chancellor, June 1st, 1852, bn motion to dissolve the injunction.

      Mr. Gould, for motion.

      Mr. Haines, contra.

   The Chancellor.

The defendants commenced an action against the complainants in the Supreme Court of this state, on the joint and several promissory note of the complainants, given by them to the defendants in March, 1845. The suit at law was commenced in April Term, 1851, of the Supreme Court. On the 29th of November, 1851, the complainants exhibited their bill. Upon the facts therein stated they prayed an injunction to stay the suit at law, that the defendants might make discovery, and that the complainants might have relief in the premises in this court. This bill the defendants have answered, and they now move that the injunction, which was granted, staying the proceedings in the said suit at law, may be dissolved, on the ground that the equity of the bill is fully answered, and the discovery prayed for obtained.

The Court of Chancery in this state has never adopted the principle that, because its jurisdiction has once rightfully attached, it will retain the cause, as a matter of right, for the purposes of complete relief.

All bills in this court are, in their nature, bills of discovery. Some are bills for discovery purely: When the subject matter is one which is properly cognizable at law only, and adequate relief can be given there, as where damages are to be ascertained or titles to land tried, and in cases of mere trespass, a Court of Chancery frequently takes jurisdiction that a discovery may be had on the oath of a party, or to compel the production of papers and documents. The end for which the jurisdiction of the court was invoked having been attained, the party seeks his redress in the proper tribunal at law.

Where a suit has been commenced at law, the defendant may bo entitled to a discovery from his adversary, and obtain it by his bill in this court. But if lie seeks to change the forum of litigation, and prays for relief as well as discovery, the subject matter must be one which appropriately belongs to equity jurisdiction. His bill must show a case of manifest propriety in this court’s retaining the cause. Fonblanque and Cooper lay it down that “ The court, having acquired cognizance of the suit for the purpose of discovery, will entertain it for the purpose of relief in most cases of fraud, account, accident and mistake.” So, if it is plain that adequate relief can be given, and at the same time a multiplicity of suits be prevented, the court, having obtained jurisdiction, will go on and give the proper relief.

The bill before us is for discovery and relief. It is properly framed for a bill of such a nature. It not only avers that the discovery is material for the defence, but also that the knowledge of the facts, upon which the defence rests, are exclusively within the knowledge of the adversary. The relief sought is, that the accounts between the parties, and which are connected with the promissory note upon which the suit at law was instituted, may be settled in this court, and a decree made consequent upon taking such accounts.

The note in question, together with another note of Peter P. Brown, one of the complainants, for $1374.88, was given in consideration of a bond and mortgage assigned at the time by the defendants to the complainants. No less than nine promissory notes and one draft have grown out of this transaction, at different times, during the period from March, 1845, and through the year 1849. The .note, upon which the suit at law was instituted, cannot be settled without bringing all these notes and draft into the account. So intricate have the accounts become between the parties that it is evident, from the answer of the defendant Edsall, that he himself is uncertain, and is unwilling to say, how the accounts really stand between the parties. The manner in which he speaks of two notes of $354.40 each, given to him by Brown, and of his own note of $354.40, which he exchanged with Brown, shows that the accounts are involved in much difficulty. He says that he has no knowledge, recollection or belief that the two $354 notes were paid, and that he verily believes his own note was paid. A business man ought to be able to speak with certainty as to such matters, or state some reason why he cannot do so. The reasonable conclusion is, that the whole transaction between the parties has been very loose. It is manifest that the accounts between the parties are intricate, and that great care and deliberation are required in order to have them satisfactorily adjusted.

This court is the proper tribunal for the settlement of such accounts. Justice could hardly be done in a hasty trial at the circuit.

The injunction must stand, and the complainants proceed with their suit.

Cited in Little v. Cooper, 2 Stock. 275.


source: Caselaw Access Project

author: Tub Ciiavgellop.

license: Public Domain

text:
    Daniel Crane and wife and others, complainants, and Stephen Van Duyne, John Dey and wife and others, defendants.
    1. A testator devised to his wife the use of his personal and real estate as long as she remained his widow', or during her natural life. At her death, or if she married, then at her marriage, all the real estate and the residue of the personal estate was to be divided equally among the testator’s children. The wife married again, and since that time to the filing of the bill, with her husband, remained in the actual possession of the larger portion of the real estate, and they received the rents from the person occupying the residue.
    2. Held, that they must account for the rents and profits of all the real estate of which the testator died seized, since the date of the marriage.
    3. That they could not claim an allowance for improvements put upon the estate, and for moneys paid for the tillage, care and culture of the land by the widow, during her widowhood.
    4. If a feme sole being an executrix or administratrix, wastes the goods of her testator or intestate, and then marries, her husband is liable, as long as the coverture lasts, for the devastavit.

    5. So where the administratrix, for a valuable consideration, had bona fide transferred obligations belonging to the estate of the testator to one with whom she subsequently intermarried, he has no right to retain them as his own, but must be held accountable with her for all the property which came to her possession.

      6. The testator gave the use of all his property, except a small legacy to his widow, and the amount was amply sufficient for her own comfortable support and the maintenance of the children. It was held that the intention of the testator was, that with the use of the property devised to his widow, she should take care of the children ; and that she could not claim an allowance for the care, support and maintenance of the children, during their minority, and from the testator’s death to the time of her marriage.
    7. All the personal property in the inventory, other than some articles transferred to the children of the testator, remained in specie upon the premises, except a portion thereof, which, from its nature, was consumed in the use. and some live stock that died from disease.

    8. Held, that this personal property being appropriate and necessary for the enjoyment of the real estate, was legitimately used for that purpose; that when the testator left his widow the use of both personal' and real property, he did not intend that the personal property should be sold at his death. But the executrix, before she married, should have exhibited her account. As to the property which was necessarily consumed in its actual use upon the premises, and the live stock which perished from disease, allowance was made, at their appraised value. As to the residue, it was held that there was no necessity of selling it, as the executrix and her husband, by continuing in the use of it after the termination of her estate hud converted it, and must account for it at its appraised value. They might have claimed an allowance for its depreciation, if they had not assumed the ownership after their marriage.
    The bill was filed October 2d, 1852.
    It charges that Nicholas Van Duyne, late of the county of Morris, died on or about the 30th of October, 1842; that at the time of his death he was seized of several tracts of land lying in that county, of about one hundred- acres, and was possessed also of a considerable amount of personal property, consisting of household furniture, farming utensils, grain, stock on his farm, debts due to him, &c. That he died,leaving Hannah Van Duyne, his widow, and Stephen Van Duyne, Catherine Ann, (since intermarried with the complainant D. Crane,) Silas, Elijah, James, Albert and Martin, his children, surviving him.
    That by his will, after directing the payment of his debts, &c., he devised as follows : “ I give to my beloved wife, Hannah Van Duyne, the use of all my personal estate of every name and kind, as long as she remains my widow, or during her natural life, with the exception of the sum of four hundred dollars, which I shall hereafter mention. Further, I give and bequeath to my beloved wife, Hannah Van Duyne, the use of my real estate as long as she does remain my widow, or during her natural life. Item. I give and bequeath to my son Stephen Van Duyne, the sum of $400 of my personal estate. Item. I give and bequeath, after the widowhood or death of my said wife, that all my real and personal estate to Stephen Van Duyne, Catherine Ann Van Duyne, Silas Van Duyne, Elijah Van Duyne, James Van Duyne, Albert Van Duyne and Martin Van Duyne, to be divided among them share and share alike, and therein and thereby appointed his widow, the said Hannah Van Duyne, and Stephen Van Duyne, executors thereof.”
    That the executors proved the will; that the appraisement of debts due the estate amounted to two thousand four hundred and fifty-three dollars and seventy-five cents, and the personal property to seven hundred and ninety-one dollars and ninety-seven cents.
    That all the estate, except the legacy of four hundred dollars, which was paid to Stephen, went into the possession of the executrix, as also the title deeds of the real estate; that the executrix threatened to waste the estate, and that she has wrongfully converted considerable part of the personal estate.
    That for several years John Dey lived with the executrix as a laborer on the farm, and that in February, 1850, they were secretly married.
    That John Dey has possessed himself of the personal estate and effects of the testator, and claims the same as his own, and has entered upon the real estate and taken the rents and profits, and the title deeds, <fcc.; that within a year past he has received payment of a bond and mortgage given by one Samuel Dey to the testator, for one hundred dollars j and has in liis possession and claims as his own a promissory note made by John A. Hopper, for three hundred and forty dollars, which was given for a debt due the testator, and which note was assigned to John Dey by the executrix, before marriage.
    That said Dey has in his possession a note or bond given to him by one George W. Van Duyne, for the sum of one hundred dollars secured by a mortgage, and also a note or bond given by Moses Young, for one hundred dollars, secured by mortgage; also, a note of one Everett, for one hundred dollars; also, a note of one F. Vanness for fifty dollars, all of which were given for moneys originally belonging to the estate of testator, and have been placed in the hands of John Dey, by his wife, the executrix, to get them out of reach; that said Dey is a man of no responsibility.
    That the defendants, refuse to account for the estate of said testator.
    That James Van Duyne, Albert and Martin refuse to join in the bill, and are therefore made defendants.
    The prayer of the bill is that an account may be taken, and the estate settled in this court, and in the meantime John Dey and his wife may be restrained from collecting, &c., the notes and bonds hereinbefore mentioned, or any other securities of the estate, &e., &c.
    On the 17th May, 1852, the defendants John Day and his wife, filed their joint and several answer.
    They admit the will, its proof, and the appraisement and inventory filed; that the debts due the estate were appraised at two thousand four hundred and thirty-eight dollars and forty-seven cents, and the personal estate other than said debts amounted to eight hundred and forty-seven dollars and twenty-five cents.
    They allege that there was a mistake made in taking the ■ inventory; that the inventory contains two notes of John A. Hopper, one for one hundred and sixteen dollars and eighty-five cents, and the other for three hundred and seven dollars and fifty cents, whereas there was only one note, amounting, with interest, to three hundred and forty-four dollars; that H. afterwards paid the executrix the interest due on this note and gave the executrix a new note for three hundred and forty dollars.
    They set out several large payments made on account of the estate, and Hannah, (the executrix,) then admits that all the rest of the estate came to her possession, and under her control, except such articles as were consumed and used in the family, and for their support, and a cow set off to Silas, one cow set off to Elijah, one horse set off to Albert, one cow, bed and bedding, set off to Catherine Ann Crane, and twenty dollars in money paid her, one horse sold to John Dey, and one of the cattle and one of the sheep which died of disease.
    Admit the receipts of the rents and profits of the real estate, and that the defendant Hannah has the title deeds.
    The answer sets forth that the complainant Catherine Ann, when seventeen years of age, secretly married the complainant Crane, and that she and husband lived with her (the executrix) from February until May, and that then the bod, bedding and cow were set off to her; that she lent them another cow for a year, supplied the family with grain and flour, and kept the two cows for them.
    The executrix, by the answer, further sets forth that Silas and Elijah, two of the children, remained with and were supported and educated by the mother from their father’s death until the autumn of 1847, when she, said executrix, removed temporarily to Newark, and took with her Albert, James and Martin, and maintained and supported them, and provided them with board, clothing and education ; that she then returned with them to Morris, and has educated and maintained them up to the time of filing the answer. She insists that, in taking the account of the estate, and the amount due to Daniel Crane and wife, and to Elijah, Silas, James, Albert and Martin, respectively, the true value of said care, support and maintenance should be ascertained, and allowance made therefor from their respective shares.
    The defendants state that the executrix has expended fifty dollars in money in settling the estate, which should be allowed, together with one hundred and fifty dollars as commissions.
    The defendants further allege that the goods and chattels, and all the personal property in the inventory mentioned, other than debts due and owing, still remain in specie upon the premises, and in the possession of executrix, except the portion consumed in the use, and that stated as set off to the children, and the cattle and sheep that died from disease, and the horse sold to Hey; and they insist that the residue-thereof, and the said personal estate in specie, ought to be taken at the full'value, as stated in the inventory, and the residue sold, and the proceeds taken in full discharge, &c.
    The defendant Hannah states that she employed John Hey (now her husband) to manage and till the farm, at ten dollars per month, and he was so employed from the year 1844 until 1850; that on the 11th February, 1850, a settlement was'had, for which, up to that time, he had received only about one hundred and twenty dollars, of which the horse before mentioned made seventy dollars; that upon the settlement, there was found due him five hundred and sixty dollars, and that, towards the payment of that sum, the defendant Hannah, as executrix, transferred to him the Hopper note, then amounting to the sum of three hundred and fifty-five dollars and thirty cents, also the bond of Samuel Hey, then amounting to the sum of one hundred and three dollars and fifty-eight cents, and that the executrix ought to have this allowance against the estate generally, or against the respective shares of Silas, Elijah, James, Albert and Martin.
    The defendant Hannah denies squandering the estate, or threatening to do it, or of converting any of the estate to. her own use, contrary to the will, and declares she is, and always has been, ready to account, and is ready to account for the Hopper note, the Hey bond, and the horse, if it is right she should do so, and has repeatedly offered to some.of defendants to account for the estate to their satisfaction ; that the estate is well invested on interest.
    The defendants deny ever having refused to deliver up the title deeds, or to account for' the estate.
    John Hey denies he has any of the estate, except the Hopper note and Hey bond; that he received the same in good faith, for the consideration stated, and without the knowledge that it belonged to the estate, and he insists on his right to retain them; he denies having received any of the rents and profits, but admits he has worked and lived upon the said lands, but without any compensation therefor than his living and support out of the same. He denies ever having had, as charged in the bill, a note or bond of Van Duyne, or the note or bond of Young, or the note of Everett or of Vanness; but he admits that after his marriage, the said Hannah, in making a change of the securities, the same were executed in the name of the defendant, John Dey, but the same remained in the possession of his wife.
    The defendant Hannah answers that the bond and mortgage of Van Duyne, the bond and mortgage of Young, the bill of sale of Everett,' and the note of Vanness were given as securities for moneys loaned by her, and which was her own money, and no part of the estate, earned by her from the use of the estate in part, and from her own industry since the testator’s death.
    To this answer is annexed a schedule of account containing the charges and discharges of the executrix.

      Mr. Little argued for the complainants, and cited Covenhoven and others v. Schuler and others, 2 Paige 122; 1 Story’s Eq., § 604 (note); Debo v. Titus, 5 Hal. 129.

      Mr. Chandler, for defendants Dey and wife, cited Wilkes and wife v. Rogers and others, 6 Johns. R. 566 ; In the matter of S. F. Bostwick, 4 Johns. Ch. 100; Allen v. Coster, 17 Eng. Ch. Rep. 204.
   Tub Ciiavgellop.

There is no difficulty in the construction of the will. The widow was entitled to the use of the real estate during her life, if she remained unmarried. If she married, her interest then terminated. Of the personal estate, a legacy of four hundred dollars was first to be paid out of it to the testator’s eldest son, Stephen Van Duyne, and the use of the residue was given to the widow on the same terms that she was to enjoy the real estate. At her death, or if she married, then, at her marriage, all the real estate and the residue of the personal estate were to be divided equally among all the testator’s children, being seven in number.

The defendants John Hey and Hannah, his wife, must account. The only questions involved in the case which are in controversy between the parties are, as to some principles applicable in taking the accounts. The complainants, not having put the facts alleged in the answer at issue, they must be taken as true.

The bill alleges, and the answer admits that Stephen Van Duyne, the executor named in the will, has not intermeddled with the real estate, and that no part of the personalty came to his hands or within his control, except the sum of four hundred dollars, and which he was entitled to as his legacy.

The defendant Hannah, the executrix of the will, intermarried with John Dey on the 20th of February, 1850. They admit that, since then, they have been in the actual possession of the larger portion of the real estate, and have received the rents from the persons occupying the residue. They must account for the rents and profits of all the real estate of which the testator died seized, since the 20th of February, 1850.

In taking this account, they claim an allowance for improvements put upon the estate by the defendant Hannah, during the period between the death of the testator and her marriage, and for money paid for the tillage, care, and culture of the land.

They are not entitled to such allowance. As to the improvements, they might have been proper and necessary for the full enjoyment of the estate, and doubtless have contributed to its permanent value. But the devisee terminated her estate by her own will. By the terms of the devise, she was entitled to the real estate during her life, if she remained unmarried. She accepted the estate, in lieu of her dower, upon the conditions annexed to it. There is nothing in the case which, as a matter of equity, entitles the defendants to an allowance for the improvements.

As to the moneys expended for the care and culture of the land, such expenditures were made for the devisee’s own benefit. She occupied the land, and for the moneys expended in its care and cultivation enjoyed its products. She was entitled to the use of it, but not to cultivate it at the expense of the children.

In accounting for the personal estate, the defendants are entitled to have the mistake as to the Hopper note, which is alleged to have been made in taking the inventory and appraisement, corrected, without further proof. The circumstances of the mistake are set out in the answer, and the defendants offer to prove the error. The complainants have not afforded them an opportunity of doing so, by putting the facts affirmed by them in issue by a replication. Taking the circumstances stated as true, the mistake is apparent.

The payment made to Kitty De Hart, and the amount paid as a compromise to Anthony Young, under the facts stated in the answer, are proper for allowance, as likewise the sum of money paid to John Van Wagoner.

The defendants claim an allowance for one cow set off to Silas Van Duyne; one cow to Elijah ; one horse to Albert; and a cow, bed and bedding set off to Catherine Ann. The only objection to these allowances is in the fact that these children were under ago at the time they respectively received the property. The property was left by the testator, and is contained in the inventory and appraisement. The defendants being entitled to the full benefit of their answer, it is to be conceded that the advances were made to the children in good faith, and that they have had the full benefit of the property. Under these circumstances, it appears to me equitable that, in taking the accounts, these children should be respectively charged with these articles.

The defendants claim a further allowance of five hundred and sixty dollars, paid by the executrix to John Dey previous to their marriage.

The answer in reference to this claim states that, after the testator’s death, it was necessary that some one should be employed to take charge of the real estate, and cultivate the land ; that she employed Dey for this purpose, at a price of ten dollars a month, and that his wages amounted to the sum of five hundred and sixty dollars, which she paid him, by selling him a horse belonging to- the estate, valued at seventy dollars, and the residue in obligations which came into her hands as executrix. I have already stated that the executrix had no right to appropriate the property for any such purpose. Dey insists that the obligations having been transferred to him bona fide, and for a valuable and ample consideration, and as he did not know, at the time of their transfer, that they belonged to the estate of the testator, he has a right to retain them as his own. If he was otherwise a stranger to this suit, the fact of his having received the obligations without the knowledge of their belonging to the estate of the testator, might perhaps protect him. But he is made a defendant in this suit, not because the obligations were transferred to him, but because he is the husband of the executrix, and as such must be held accountable with her, as long as the coverture lasts, for all the property which came to her possession as executrix, no matter whether it came to his hands or not. If a feme sole, being an executrix or administratrix, wastes the goods of her testator or intestate, and then marries, her husband is liable, as long as the coverture lasts, for the devastavit.” 2 Williams on Executors 1128, and note L; Knox v. Picket, 4 Dessaus. R. 92 ; Moon v. Henderson, 4 Dessaus. R. 459. The defendants must be charged with the five hundred dollars.

The defendants further claim an allowance for the executrix for the care, support and maintenance of the children during their minority, and from the testator’s death to the time of the marriage.

The executrix, as the mother óf these children, was under a moral obligation to maintain and educate them, and to devote her property and industry for the purpose. It is true, where children have a separate estate from their mother, a Court of Chancery has the power, and will, in a proper case, make an order for an allowance out of their own estate for their support and education ; or will, in the settlement of the accounts, allow for such past expenditures, although made without an order of the court. In the case of Wilkes and wife v. John Rogers and others, 6 Johns. R. 566, which was then decided on an appeal from the Chancellor, the Chancellor had decided that the charge for the maintenance and education of the children, made in that case by the executrix, who was their mother, could not be allowed, because .(he charge was not deduced from a previous order, and the Chancellor, in his opinion, cites the numerous authorities applicable to the subject. But the Court of Errors reversed the Chancellor’s decision, and decided that the mother was entitled to be allowed, out of the portion of the estate belonging to the children, for their maintenance during infancy. But in that case, the judges, in their opinions, admit that such allowance is not in accordance with the general rule. But the circumstances of that case made it an exception to the rule.

But what propriety or equity would there be in such allowance in the case before us ? The father of these children, placing implicit confidence in his wife, and believing that the interest and care of his children could be safely committed to her, secured by a mother’s affections, had not left them, by his will, anything to supply their then present wants. The use of all his property, except a legacy of four hundred dollars, he' gave to his widow. This, with some property she possessed of her own, proved amply sufficient for her own comfortable support and the maintenance of her children. She shows, in her answer, that from this property she had been able, over and above supplying these necessities, to accumulate several hundred dollars. The intention of the testator was, that with the use of the property devised to his widow, she should take care of his children. It was never his intention that she should have the use of it for her own benefit, and a resort be had to the principal for the maintenance of the children.

As to the bond and mortgage of G. W. Van Duyne and that of Young, the bill of sale given by Everett, and the note of "Vannest — taking the account given of them in their answer as true — they constitute no part of the estate.

Only one other question remains to be settled. The defendants state in their answer that all the goods and chattels, and all the personal property mentioned in the inventory and appraisement, other than the debts therein mentioned as due and owing to the estate, still remain, in specie, upon the premises, except a portion thereof, which, from its nature, was consumed in the use; some live stock, which died from disease, and the horse, cow, &c., transferred and delivered to the children, as before referred to. The defendants insist that they are entitled to an allowance for the property that was consumed in the use, and that perished, and that the residue must be sold, and an allowance be made the executrix for any deficiency there may be between the amount the property was appraised at and the sum it may bring at such sale.

The complainants, on the other hand, insist that it was the duty of the executrix to have sold all this property when she assumed her duties as executrix, and to have invested the money so that she might have received the benefit of its income, and her children the principal, when, by the terms of the will, they should be entitled to it.

In the case of Covenhoven v. Souler, 2 Paige Ch. R. 132, Chancellor Walworth says: “ Whether a gift for life of specific articles, as of grain, hay, &c., which must necessarily be consumed in the using, is to be considered an absolute gift of the property, or whether they must be sold and the interest or income only of the money applied to the use of the tenant for life, appears to be a question still unsettled in England.” 3 Ves. 314; 3 Mer. 194. But none of these principles in relation to specific bequests of particular articles, whether capable of a separate use for life or otherwise, are applicable to this case. When there is a general bequest of a residue for life, with a remainder over, although it includes articles of both descriptions as well as other property, the whole must be sold and converted into money by the executor, and the proceeds must be invested in permanent securities, and the interest or income only is to be paid to the legatee for life. This distinction is recognized by the master of the rolls in Randall v. Russell, 3 Mer. R. 193.

These rules are all very well where there is any doubt as to the intention of the testator. If we can ascertain that intention with any reasonable certainty, it must prevail over any technical rule. This bequest of the personal property included articles which, from their nature, would be consumed in their use, and of which the use and the property could have no separate existence. The testator left his widow with a large family of young children. He left her the use of all his personal property, except four hundred dollars, and the use of all his real estate. This personal property in question was appropriate and necessary for the enjoyment of the real estate. It was used legitimately for that purpose, and these children enjoyed, with their mother, the benefit of it. Of some of it the use consisted in its consumption, and the residue was only depreciated in value by its use. The testator made the legatee his executrix and placed the specific property in her hands. She ought to be called to a strict account for all this property, and I do not intend to lay down any rule by which she can escape. But I do not believe it was the intention of the testator that this property should be sold at his death. The executrix, when she made up her mind to marry, ought to have stated and exhibited her accounts, and put the estate in a condition for settlement, according to law. Her dealings with the man she intended to marry; the transferring to him of upwards of five hundred dollars of the property committed to her trust; her husband and herself remaining in the use of all the real and personal estate after her term and interest in it had expired ; these circumstances do not incline me to extend any leniency to these defendants in taking the accounts.

As to the property which was necessarily consumed in its actual use upon the premises, and the live stock which perished from disease, an allowance must be made at their appraised value.

As to the residue, the defendant Dey and his wife have converted it to their own use. There is no necessity of selling it. Having assumed the ownership of it, the defendants must account for it at its appraised value. The executrix might, under other circumstances, have been entitled to an allowance for its depreciation. The conduct of the defendants, in assuming the ownership of it after their marriage, must deprive them of this benefit.

Let it be referred to a master to take and state the accounts upon the principles laid down. In addition to the allowances before mentioned, let an allowance be made for moneys expended by the executi’ix, in the discharge of her duties, not to exceed fifty dollars, and a sum for commissions, not to exceed one hundred and fifty dollars. These sums are the extent of what she claims in the answer.


author: The Chancellor.

text:
    Benjamin Swayze, complainant, and James Swayze and others, defendants.
    X. A bill which sets up distinct and different causes of complaint, which destroy each other, and seeks different reliefs, inconsistent with each other, is multifarious; and, although no advantage be taken of the defect by the pleadings, the court may dismiss the bill, and will do it where the form of the bill embarrasses the court in the administration of justice.
    2. The principle is familiar and well established, that in order to give a creditor a standing in the court, to enable him to question the conveyance of his debtor on account of fraud, he must have some lien on the property.
    3. The only reason why the Court of Chancery interferes on behalf of a judgment creditor, is to remove the obstacle which has been fraudulently interposed to prevent the satisfaction of the judgment by due process of law. So, where the judgment was no lien upon the land, and the complainant did not show that he had exhausted his remedy by execution, or any reason why he did not enforce his judgment against Ms debtor, but the bill showed that the debtor had abundant personal property to satisfy the judgment, after a delay of fourteen years, and after the debtor is dead, this court will not interfere on behalf of the judgment creditor, to set aside a conveyance which had been made by the debtor, for fraud.
    This cause was argued at Newark, December 7th, 1852, on the pleadings and proofs.
    The bill charges that, in the year 1831, one Daniel Swayze was seized in fee of a farm in the county of Morris, of the value of five thousand dollars, and described in the bill, containing about one hundred and eighty-nine and sixty-eight hundredths acres.
    That Daniel Swayze was the father of six children, to wit, the complainant, and the defendants, Isaac, James, Mary, Mehetable, afterwards wife of John Sliker, and Sarah, after-wards wife of Andrew Sliker.
    That Isaac and James, on or about the 10th of July, 1831, induced their father to make them a deed, in fee simple, for the said farm, and that on that day, D. S. and wife did execute to them such deed, purporting, on its face, to be for the consideration of two thousand dollars.

      That at that time, the complainant was in the possession of the farm, as tenant; that James.and Isaac commenced an ejectment suit against him, at September Term, 1832, of the Supreme Court, and that he, the complainant, being poor, was obliged to give up possession.
    That D. S., at the time he executed the deed aforesaid, was seventy-five years of age; that he was, at all times, a man of weak mind, and, at the time of making the deed, was incompetent to attend to any business whatever, and was unfit, on account of the infirmity of his mind, to execute the conveyance aforesaid.
    That Isaac and James obtained the deed by false and fraudulent representations, and without any consideration.
    That they represented to D. S. that the complainant had an unjust and illegal claim against him, and would sell his farm to pay it, and that if he would make a deed to them for the farm, they would either pay him two'thousand dollars, or make him good security for it — would take care of him during his life — provide for his wants, and, at his death, make a division of the farm among the brothers and sisters, notwithstanding the deed.
    That, by means of these representations, D. S. made the deed to them.
    That the representations so made were deceptive, false, and fraudulent..
    That, at that time, the complainant had a just and legal claim against D. S., and which the said James and Isaac well knew, and they combined together to defraud the complainant out of his debt.
    That James and Isaac never paid the two thousand dollars consideration money, or any part of it, or secured it; that they did not provide for him, but neglected to do it.
    That since the conveyance, James and Isaac have occupied the land, and enjoyed, for their own use, the rents and profits.
    That, at the time of acknowledging the deed, D. S. stated that he was induced to make the deed solely on the above representations; that no arrangement had then been made to secure him the two thousand dollars, and he was afraid they never would; and 1). S.’s wife, at same time, made like statements.
    That the old man, during his life, frequently charged James and Isaac with having deceived him, and that they knew complainant’s debt was just, and ought to be paid, and at one time, on such charges, or similar ones, being made, Isaac acquiesced.
    That D. S. died about the 1st of August, and his wife the 1st of October, 1841.
    That at his death he left personal property of the value of five hundred dollars, and in money four hundred dollars; that he received a pension of fifty-six dollars and sixty-seven cents per annum, commencing on the 4th of March, 1831, and ending September 4th, 1843, amounting in all to seven hundred and eight dollars and thirty-seven cents.
    That Isaac and James, or one of them, was in the habit of receiving the pension money, and had a considerable part of it in their hands at the old man’s death.
    That Isaac and James received one hundred and eleven dollars of other moneys to which D. S. was entitled, from different individuals; that no letters of administration wore ever taken out, and that Isaac and James took all his personal estate and converted it to their own use, and never accounted for any part to the complainant.
    That I. and J. took possession ,of all the papers ; that D. S. left no debts at his death except the one to complainant; that the complainant is the heir-at-law of D. S. to the one-sixth part of his estate, real and personal.
    That D. S., at his death, was indebted to the complainant in the sum of three hundred dollars, for money paid for D. S. and at his request; in the further sum of one hundred dollars for work, labor, &c., and for goods, wares and merchandise sold and delivered to him ; in the further sum of one hundred and sixty-five dollars principal, costs and interest due on a judgment recovered by complainant against D. S. before a justice of the peace of the county of Morris, on 21st September, 1835.
    That Bethuel, one of the children and heirs of D. S., died about 1st April, 1840, and the other children, refusing to join as complainants in this bill, are made defendants.
    The bill prays that the deed from D. S. to his sons may be set aside, and account taken of the rents and profits of the lands.
    That an account may be taken of the personal property of D. S. that has come to the possession of the said I. and J., and full settlement of the estate be had, and the value of the lands be ascertained.
    That an account may be taken of what is- due to the complainant,.and that a receiver may be appointed.
    That the said lands may be sold, and that out of the moneys so arising the complainant may be paid the amount due to him from the said D. S., and that after the complainant has been paid said amount so due him, the complainant may receive his sixth part of the said real and personal estate.
    And that the complainant may have such other relief, &e., &c.
    The answer denies' the equity of the- bill.
    In reference to the conveyance to them, the defendants state:
    That their father was about seventy years of age, and from the natural abatement of his strength was unable personally to attend to the proper cultivation of the farm; that he was embarrassed by debt which he had incurred both on his own account and that of complainant, to an amount of several hundred dollars, and was threatened with prosecution; that he became uneasy lest his property should be sold to pay his debts, and he complained of the complainants (who then lived with him) not keeping the farm-in order, and of his unkind treatment to him and his wife; that both the old man and wife frequently applied to them, and urged them to purchase, and keep it as a home for them.
    That finally they agreed with their father to buy the farm on the following terms: They agreed, in consideration of a conveyance to them, to provide for their father, their mother, and their sister, Mary Swayze, (who had always been afflicted with imbecility of mind,) a comfortable maintenance and support for and during their natural lives. They further agreed to pay off their father’s debts, and which debts, their father stated, would be about, as he supposed, three hundred dollars, but which amounted to about eight hundred dollars. They further agreed that, after the death of their father, they would pay their sister, Mehelable Sliker, one-third of the difference between the amount of their father’s debts and the sum of one thousand dollars, the other two-thirds of that difference to be retained by and equally divided between the defendants, their father averring at the time that the complainant and Sarah Sliker had had more than their full share of his property.
    That in pursuance of this agreement the deed was made, and that they have faithfully performed their part of the agreement, which was the consideration of the deed ; that they have paid off debts to the amount of about eight hundred dollars, maintained their father and mother during their lives, and have maintained their sister since.
    That when they took possession, the farm was worn out; that they built two houses, in one of which their parents lived during their lives.
    They deny the charge of their father’s incapacity, and insist the consideration was an ample one.
    They deny circumstantially any charge made in the bill of fraud.
    They admit that, at his death, their father left some personal property, but of small value. They deny that any of it ever came into their possession, but say that it was taken by their sister, and claimed by her as having been given her by her father. They deny that their father, at his death, had any money or obligations, to their knowledge, and they do not believe he had.
    They admit their father received the pension, and that he expended it for his own support. They deny they ever had any of it to their own use.
    They admit that no letters of administration have been taken out, and that at the time of his death their father owed no debts.
    They deny, according to their best knowledge and belief, that their father owed complainant. They admit the judgment, but insist it was improperly obtained.
    The complainant filed a replication, and proofs were taken on both sides.
    The other defendants did not answer.

      J. G. Shipman, for complainant.

      T. Little, for defendants, James and Isaac Swayze.
   The Chancellor.

This bill is multifarious. It sets up distinct and different causes of complaint, which destroy each other. - It seeks different reliefs, inconsistent'with each other.

It asks for relief, on the ground that the complainant is a creditor, and that the real estate in controversy was conveyed to two of the defendants by the complainant’s debtor, for the purpose of defrauding him. The decree that the complainant is entitled to in this aspect of the bill, is that the property is held subject to his debt.

But the complainant asks relief on another ground: that he is the heir-at-law of Daniel Swayze; that the two defendants, James and Isaac Swayze, of whose fraud he complains, procured the conveyance from their father, who was an old man, broken down by age, and not of sufficient mental capacity to transact business, by fraud and misrepresentations. The relief to which the complainant is entitled, in this aspect of the bill, is that the deed be decreed absolutely null and void, and the complainant, as one of the heirs-at-law of Daniel Swayze, entitled to the one-sixth part of the land and premises.

If the complainant is entitled to relief on the first ground, the conveyance, as between the parties to it, is valid ; and it is valid against the complainant, as an heir-at-law, because in this aspect, he stands in the same position as his ancestor, and can have no redress to which he would not have been entitled.

The different characters in which the complainant is prosecuting this suit, are, on account of the subject matters of the suit, inconsistent with each other.

The bill seeks relief upon another ground. It alleges that the two defendants, James and Isaac Swayze, took possession, on their father’s death, of all his personal property, of considerable amount; that no letters of administration have been taken out, and that the said defendants have refused to pay the complainant’s debt, or distribute the property, according to law, The complainant asks that his debt may be paid, and that the defendants may account to him for one-sixth of the personal estate.

If the court could interpose for the relief of the complainant upon this latter ground, it is a case for relief which could not properly be joined in one suit with the other cases for relief embraced in the bill.

But although this bill is multifarious, no advantage has been taken of it by the pleadings, nor was the objection stated at the hearing. The objection must be taken by demurrer or plea, or be set up in the answer, and if it is not, the defendant cannot claim any benefit from such defect. But though the party may waive the objection, the court, proprio jure, may dismiss the bill, and will do it, where the form of the bill embarrasses the court in the administration of justice.

The conclusion I have reached on an examination of the evidence, enables me to dispose of the case without embarrassment, and there is no necessity, therefore, for the court’s interposing and dismissing the bill on account of the defect alluded to. I have noticed the form of the bill that it may not be referred to as a precedent, and that no conclusion may be drawn that the court will encourage laxity of pleading. Mere technicality should not be permitted, in this court, to interfere with the administration of justice, but looseness of pleading, which embarrasses a party in his defence, and the court in determining the rights of suitors, and the relief to which they are entitled, ought not to be encouraged.

The complainant insists that the deed was made by Daniel Swayze to his sons, James and Isaac, for the purpose of defrauding the complainant, who was a creditor.

This ground was pressed with much earnestness by the complainant’s counsel, and he insisted, with great confidence, that the evidence was irresistible to establish the fraud. Admitting the conclusion to be correct as to the evidence on this branch of the case, is the complainant entitled to relief?

The principle is so well established, and is so familiar, that in order to give a creditor a standing in the court, to enable him to question a conveyance of his debtor on account of fraud, he must have some lien on the property, that it is unnecessary to cite authorities on the point.

The complainant, on the 21st of September, 1835, recovered a judgment in a justice’s court against Daniel Swayze, for the sum of ninety-eight dollars and ninety-nine cents, and on the 24th of September, 1849, he files his bill in this court, and asks to have a conveyance made by his debtor on the 10th of January, 1831, set aside for fraud.

This judgment, by the statute, was no lien upon the land, and the complainant does not show that he had exhausted his remedy by execution, or any reason why he did not enforce his judgment against his debtor. Indeed, the complainant shows by his bill that his debtor had abundant personal property to satisfy the judgment. Under these circumstances, after a delay of fourteen years, and after his debtor is dead, there is no propriety in the court’s interfering on his behalf, even if his judgment was of a nature to warrant it.

The only reason why the Court of Chancery interferes on behalf of a judgment creditor is, to remove the obstacle which has - been fraudulently interposed to prevent the satisfaction of the judgment by due process of law. But if this conveyance had never been made, the judgment could not have been enforced against this land.

In this aspect of the case the complainant is not entitled to relief.

But the complainant further insists that he is one of the heirs-at-law of D miel Swayze, and, as such, is entitled to the one-sixth of his real estate; that at the time of the execution of the deed his father was aged and infirm in body and mind, and not of sufficient menial capacity to dispose of his property; that the grantees induced him, by fraud and misrepresentations, to execute the deed, and that, for‘these reasons the conveyance should be declared void. But if the complainant has proved beyond a doubt, as his counsel insists, that Daniel Swayze executed the deed to defraud a creditor, such proof destroys whatever case the complainant may have had as an heir-at-law. If Daniel Swayze’s purpose in executing the deed was to defeat his creditors, though the deed is void as to them, it is valid as between the grantor and grantees, and, of course, as between the grantor’s heirs and the grantees. It is valid, then, against the complainant, as an heir-at-law of Daniel Swayze.

The evidence is not of a character to leave room to doubt but that Daniel Swayze, at the time he executed the deed, was of sufficient mental capacity to dispose of his property. It is true he was an old man, and in body and mind was suffering under the infirmities of old age. He had, up to this period, transacted all his own business — had considerable pecuniary dealings with his neighbors — and his friends who were in constant intercourse with him, and persons with whom he dealt, do not express a doubt as to his sufficient mental capacity to dispose of his property. Two or three witnesses, produced on behalf of the complainant, do express such doubts, but there are a large number of witnesses opposed to them, and such as were better capable, from many considerations, to give a judgment on this subject. The witnesses who express a doubt, give no reasons for their opinion, and allude to no circumstance in the old man’s conduct to justify it. He lived for more than six years after the deed was executed. During that period there was no unusual abatement of his natural vigor of mind or body. He retained his mental faculties until his death, impaired only by the ordinary infirmities of advancing age.

Nor is there any evidence to sustain the charge that the deed was procured from the old man by the fraud and misrepresentations of his sons. The defendants, in reply to this charge, in their answer deny it; and allege that it was at their father and mother’s earnest and repeated solicitations that they consented to take the deed, and that they took it with the view, not of speculation, but to relieve their aged parents. And they prove this by the declarations of their father and of their mother, made in the father’s presence, and under circumstances which entitle the defendants to the full benefits of the declarations. The evidence was objected to, but it is admissible. In the aspect of the case to which our attention is now directed, the complainant is claiming as an heir-at-law. He assumes the position of his ancestor in impeaching the deed; and the same evidence which would be admissible if his ancestor were the complainant, is proper in this suit.

As an evidence of incapacity of the grantor, and fraud on the part of the grantees, it is insisted that the price of two thousand dollars was inadequate. The weight of evidence is, I think, very strong, that the price named was, at the time, the full value of the farm. It was the price fixed by the grantor himself in offering to sell the farm to strangers, and men of character, living in the neighborhood, acquainted with the premises, and good judges of the value of land, declare that two thousand dollars was the full value.

I think the evidence falls very far short of making a case of incapacity of mind in the grantor, or of fraud or imposition on the part of the grantees.

But the complainant takes another ground. He insists that the consideration agreed upon between the parties to the deed has never been paid, and that the grantees must account for it.

I have not overlooked the fact that this view of the case was urged also as an evidence of the fraud, taken in connection with other circumstances of the case, and in examining the question of fraud, I gave to the complainant the full benefit that the evidence on this point, in my judgment, was entitled to.

As to the consideration of the conveyance : the complainant alleges in his bill that no part of the consideration has been paid; that at the time the deed was executed, the defendants, James and Isaac, promised and agreed with their father that they would take charge of the property for him, and would either pay him the sum of two thousand dollars, or else would give him good security for it; that they would take care of their father during the remainder of his life, provide for all his wants, and at his death would make a division of his lauds among all the children.

These allegations are made in the bill to show, in part, the means by which the old man was imposed upon, and to establish the alleged fraud ; and, indeed, unless they are available to the complainant on the question of fraud, they cannot avail him at all. If the consideration money has not been paid it remains a lien upon the land. But the complainant cannot recover it or any part of it in this suit. It belongs to the personal representative, and must pass through his hands in the administration of the estate.

But how stands the case, upon the evidence, as to this question.

The defendants, in their answer, state, in reference to the consideration, that they agreed to purchase the farm on the following terms: To provide for their father and mother, and their sister Mary, who lived at home, and who has always been afflicted with imbecility of mind, a comfortable maintenance and support during their lives; to pay and discharge all their father’s debts, which, he supposed, would amount to three hundred dollars, but which, in fact, amounted to about eight hundred dollars; that, after the death of their father, they would pay to their sister, Mehetable Sliker, one-third of the difference between their father’s debts and the sum of one thousand dollars, the remaining two-thirds of that differenee to be retained by and equally divided between themselves.

The defendants show that their father was embarrassed, and without means to pay his debts and liabilities, except by a resort to the farm for the purpose, and that it was necessary he should either sell the farm to strangers, or make some family arrangement to relieve him from that necessity; that he was unkindly treated by his son, the-complainant, and had involved himself in debt on the complainant’s account ; that his children had had their share of his property, except his sons James and Isaac, and his daughters Mehetable and Mary, and that he had declared the complainant should have no portion of his estaté.

These facts the defendants prove by the old man’s declarations. His declarations were admissible for this purpose, for, as has been stated, the complainant occupies the position of his father, and the same evidence that would have been admissible against him is proper evidence against the complainant.

The defendants further prove that their father and mother, during their lives, occupied a house on the farm; that they were comfortably maintained and provided for, and that it was the common understanding of the neighborhood that they were maintained by their sons, the defendants. There is proof that the maintenance they received was worth two hundred dollars a year, and that it was worth a hundred dollars to provide and take care of Mary; that she resided with her parents during their lives, and, since then, has lived with one of her brothers. She makes no complaint against the defendants, of not fulfilling their agreement, as far as she is concerned.

The defendants state, in their answer, that they paid debts of their father to the amount of eight hundred dollars. They produce, in their possession, evidences of debts paid to. nearly that amount. It is true the proof of all these debts having been paid by them does not come quite up to legal proof, but after the complainant’s postponing his suit for fourteen years, it is unreasonable to expect of the defendants that strict proof that would be required of them in reference to recent transactions.

There is evidence that the old man had some means of supporting himself from a pension he received from the general government, and that he used the money for that purpose. But there is nothing to warrant the supposition that he used the money from necessity, or because his sons had failed to provide for him, or shown a disposition to withhold anything that was necessary for the comfort of his household.

From a careful examination of all the evidence, I do not think there is anything in the case to warrant me in disturbing the deed.

The complainant’s bill must be dismissed, with costs.

Cited in Robert v. Hodges & Fuller, 1 C. E. Gr. 303; Green v. Tantum, 4 C. E. Gr. 107; Veghte v. Rar. Water Power Co. 4 C. E. Gr. 146; Tantum v. Green, 6 C. E. Gr. 365; Davis v. Dean, 11 C. E. Gr. 436.


text:
    Henry Allen, complainant, v. Isaac Cole and others.
    1. Where every allegation of fraud charged in a bill filed to set aside a sheriff’s sale, upon several judgments and executions by one of the judgment creditors, is met and denied by the answer, and the complainant has made no effort, by proof, to sustain the fraud, the defendants are entitled to the full benefit of their answer, so far as it is responsive to the bill.
    2. If the advertisement of the sheriff sufficiently identifies the property to be sold, it is in compliance with the law. He need not describe the number of buildings or their character.
    3. The adjournment of the sale need not be advertised in a newspaper. Public proclamation made at the time at which the sale was published to take place, is all that the law requires.
    4. One who wails to see the result of a sale, allows property to be sold on his own judgment, as well as that of other judgment creditors, and when it turns out that purchasers have not been so unfortunate as to make a bad speculation, but rather have been lucky at the expense of the judgment creditors, then complains of the unfavorable circumstances under which the sale was made, and of frauds which demanded his prompt action to entitle him to be relieved of their consequences, is not entitled to the favorable consideration of the court.
    The bill was filed August 22d, 1850. Its object was to-set aside the sale of the sheriff of the county of Camden, upon several judgments and executions, and for a re-sale. It charged several of the judgments as fraudulent, and illegality in the sheriff in advertising the property and in conducting the sale.
    The sheriff, T. W. M., and Isaac Cole answered the bill. The other defendants did not answer. On filing the bill, the sheriff, was enjoined from making deeds to purchasers. On the coming in of the answer, a motion was made to dissolve the injunction, which was refused.
    The cause was now heard upon the pleadings and proofs.

      A. Huff and W. N. Jeffers, for complainant.

      T. W. Mulford, for defendants.
   The Chancellor.

Every allegation of fraud charged in the bill, is met and denied by the answer. The complainant has made no effort, by proof, to sustain the fraud, and, of course, the defendants are entitled to the full benefit of their answer, so far as it is responsive to the bill.

As to the manner in which the sale is conducted by the sheriff, his answer is perfectly satisfactory; and shows that the suspicions entertained by the complainant, as to any improper influence exerted over the sheriff, either by Mr. Cole or by Mr. Mulford, are without any foundation whatever.

The advertisement of the sheriff was in strict compliance with the law. It sufficiently identified the property. The sheriff was not bound to describe the number of buildings, or their character. To compel a sheriff to do this would be oppressive, and oblige him to incur an expense for which the law provides him no remuneration.

The adjournment of the sale was not advertised in the newspaper. Public proclamation was made of the adjournment at the time at which the sale was published to take place. It has been before decided in this court, (Cox v. Halsted et al., 1 Green’s Ch. 316,) that this is all the law requires.

It may be true that some of the property sold below its value. Such a consequence might reasonably be expected to follow from the sale of property situated as this was, with encumbrances upon it to a large amount, and defects of title as to some of it in a course of litigation.

The lime of filing his bill does not entitle the complainant to the very favorable consideration of the court. If he had any foundation for many of the allegations of his bill, he should have asked the interposition of the court, prior to the sheriff’s making the sale. But he waits to see the result of the sale. He allows the property to be sold on his own judgment, as well as that of other judgment creditors, and when it turns out that purchasers have not been so unfortunate as to make bad speculations, but rather, have been lucky, at the expense of the judgment creditors, the creditor then complains of the unfavorable circumstances under which the sale was madé, and of frauds committed which demanded his prompt action to entitle him to be relieved from their consequences.

But, as I said, the frauds are denied, and no attempt is made to sustain them.

The property was sold under fifteen judgments, amounting to upwards of seventeen thousand dollars. The complainant is the only creditor who complains of the sale. I have no good reason for supposing, from the evidence before me, that the property would sell any better if a re-sale was ordered, or that either the complainant, or any other creditor, would derive any benefit from it.

The bill must be dismissed, with costs.

Cited in Hodgson v. Farrell, 2 McCar. 91.


text:
    Between Jason Rogers and Jacob S. Rogers, complainants, and Charles Danforth and others, defendants.
    1. Where the complainants ask for an injunction to protect them from apprehended danger, and the answer denies that such apprehensions are well founded, the court, as a general rule, will give to the defendants the full benefit of such denial, and refuse the injunction; and when both parties come before the court with affidavits, the court will refuse the injunction, unless the complainants make out a very clear case by their bill and affidavits.
    2. It would seem that a tenant may ask the aid of this court to prevent his landlord from breaking a covenant which, though not made with the tenant, will work a forfeiture of his estate.
    3. It does not follow that, because a suit at law cannot be maintained on such a covenant, a Court of Chancery may not protect the rights of parties under it.
    4. It is no breach of a covenant which prohibits the erection of a forge or furnace for the manufacturing of iron, or the erection of any building for any such purpose, to erect buildings in which forges for the purpose of heating iron and moulding and working it into different kinds of articles to be used in the construction of locomotive engines are intended to be used.
    5. A forge or furnace for the manufacture of iron has a definition comprehended and understood alike by scientific men and mechanics acquainted with the business; and, in such cases, the definition will control in the construction of the covenant.
    This was an application for an injunction, and was argued at February Term, .1853, on bill, and the affidavits filed on behalf of the defendant. The state of the case sufficiently appears in the opinion of the Chancellor.

      A. B. Woodruff and A. Whitehead, for the complainants, cited Eden on Inj. 238, ch. 9 ; 2 Story’s E'q. J., § 959, b, note 1; Broom’s Maxims 266, 276, 300.

      A. Pennington and A. O. Zabriskie, for defendants, cited Drawry on Inj. 248; 2 Eden 269.
   The Chancellor.

In filing this bill, an application was made for an injunction. An order was made for the defendants to show cause, on a day named, why an injunction should not issue in pursuance of the prayer of the bill. The defendants put in several affidavits, which were read without objection, and the motion was argued by counsel on .both sides on the bill and the affidavits filed on behalf of the defendants.

“ The Society for Establishing Useful Manufactures,” at Paterson, in 1827, leased for twenty-one years, with a covenant for renewals, to James Shephard, a lot of land with a specified quantity of water for manufacturing purposes.

Charles Oliver became the owner of the interest of the society in this lease, and .of their reversionary interest in the demised premises.

In 1848 Oliver renewed the lease to Shephard for twenty-one years.

Among various covenants contained in the lease was one that the lessee, his executors, administrators, or assigns should not use, or suffer, or permit to be used or employed the said demised premises, or any part thereof, nor the water-rights and privileges thereby given, or any part of them, at any time during the continuance of the lease, for the purpose of carrying on any manufacture of gunpowder, vitriol, spirits of turpentine, paints, varnish, tanning of leather, or as a pottery, or distillery of any kind, or as a forge, or furnace, for the manufacturing of iron or copper, or for the erection of any buildings for any such purpose.

In 1848 Oliver renewed the lease to Shephard for twenty-one years, containing a like covenant with the one before referred to.

In 1831 Shephard leased a part of the demised premises to Peter Walker. This lease contained covenants on the part of the lessee similar to those’from Shephard to Oliver. The right of renewal was also secured.

By diverse mesne assignments, the complainants became the assignees of Walker’s interest in the lease, in 1849.

The complainants being thus entitled to the renewal, in 1849, an indenture between Shephard and the complainants was executed for the purpose. This last indenture does not contain the covenant before recited.

In 1852, Shephard sold and assigned all his interest in the demised premises to Danforth and Edwards, two of the defendants. In the indenture of sale to them, Danforth and Edwards covenant with Shephard to keep and perform all the covenants on the part of Shephard to be kept and performed in and by his lease from Oliver.

Thus it appears that of the demised premises originally leased by the society to Shephard, the complainants, by subleases and renewals, are in the enjoyment and possession of a part of the same, and that Danforth and Edwards are in the enjoyment and possession of the residue.

By these several assignments and renewals, Danforth and Edwards, the defendants, have become the immediate landlords of the complainants, while the defendants, as well as the complainants, hold under the original lease from the society to Shephard.

There is erected on the complainants’ lot and occupied by them, an extensive and valuable cotton mill, which has been in operation for a number of years.

The bill alleges that Danforth and Edwards, with the other defendants named, who are their partners, are erecting on their lot extensive buildings for the purpose of carrying on therein a large factory for the manufacture of locomotive engines and other kinds of machinery, in which iron is the principal ingredient, and in which manufacture the working and manufacture of iron, • by means of forges or furnaces, constitutes a principal and much the largest branch ; that the said building will be within a few feet of the complainants’ cotton mill, and the forges and furnaces put therein and used will be dangerous to the cotton mill, subjecting it to imminent risk of fire from the sparks and cinders escaping from the forges and furnaces; and that the smoke and cinders will greatly annoy the workmen in the cotton mill, and that such manufacturing establishments as the defendants contemplate erecting and carrying on will be a nuisance.

The complainants ask for an injunction.

First. On the ground that the defendants’ contemplated erections will endanger the safety of the cotton mill, and will annoy the complainants’ workmen therein, and that upon the principles on which the jurisdiction of this court is exercised to prevent private nuisances, the complainants are entitled to the protection of the court.

Admitting that, if the allegations of the bill are true respecting the effect of the defendants’ erections, a case is made that will entitle the complainants to an interference of this court on their behalf, by injunction, yet this part of the case is fully met by the answer of the defendants and t.he affidavits accompanying it.

Whether or not the apprehensions of the complainants are well founded as to the danger and annoyance against which they seek protection, must depend, in a great measure, upon the manner in which the defendants’ buildings are erected and the work carried on.

The defendants say, in their answer, that the building which they intend to use as a blaoksmith-shop, and in which they expect to have all their fires, is about twenty-eight feet distant from the complainants’ mill, and that it is the intention of the defendants to erect the standing places for their fires in such a way ás to lead under ground by flues from each fire to one large chimney, which is to be eighty feet high from the surface of the'ground, and that they intend to use mineral coal for these fires; that this chimney will be at least seventy-five feet distant from the cotton mill, and that the defendants do not intend to have any chimney except this large one; and they believe, with these constructions and protections, the complainants’ mill will be in no danger from fire, nor will their workmen be annoyed by any cinders or sparks.

John Colt, in his affidavit, says that he has seen a large blacksmith-shop, with a great many fires, erected with a large chimney, and each fire communicating under ground with the chimney; that the shop .was entirely free from smoke, and that. there was not the least danger or inconvenience to anybody from it; and that he is satisfied such an erection would be free from every objection, and that at a distance of fifty feet from a mill, it would not be more dangerous than a dwelling-house there erected, and that with the use of mineral coal no sparks would ever be seen coming out of the chimney.

William Swineburn corroborates Mr. Colt’s statements, and forms his opinion from having seen such works in actual operation.

He says they are no inconvenience to any one when erected in this way; and that a large blacksmith shop so erected, with a great many fires, when the chimney is from sixty to eighty feet high, is as free from danger to the surrounding buildings, and from smoke, sparks or cinders as a chimney to an ordinary house is to those living on the opposite side of the street. Mr. Swineburn is a manufacturer who has been connected with manufacturing establishments similar to those contemplated by the defendants; and from the experience he has had, and from his opportunities of judging, his opinion is entitled to great consideration.

The defence thus made on the part of the defendants is, I think, sufficient to overcome the mere apprehensions of the complainants, which is all they present for the court to act upon.

Where the complainants ask for an injunction to protect them from apprehended danger, and the answer denies that such apprehensions are well founded, the court, as a general rule, will give to the defendants the full benefit of such denial, and refuse the injunction; and where both parties come before the court with affidavits, the court will refuse the injunction, unless the complainants make out a very clear case by their bill and affidavits.

But there is another ground on which the complainants insist they are entitled to the injunction.

In the lease from Oliver to Shephard there is a covenant, which I have before mentioned, by which the lessee is restricted from the use of any of the demised premises for the purpose of a forge or furnace for the manufacturing of iron or copper, or for the erection of any building for any such purpose.

The complainants insist that they are entitled to protection under this covenant, and that it prohibits the erection of any such buildings or machinery as are contemplated by the defendants.

The titles of both complainants and defendants are held under Charles Oliver, and are subject to the covenants in the lease from Oliver to Shephard. By this lease the lessee's estate is forfeited by a breach of the covenant by him or his lessees. . By the several assignments before referred to, the defendants have become the landlord of the complainants. The latter have, therefore, a right to look to the former for protection. If the defendants violate this covenant, the estate of the complainants, their tenants, is forfeited. The tenant is asking the aid of the court to prevent his landlord from breaking a covenant, which, though not made with the tenant, will work a forfeiture of his estate.

It was rather conceded on the argument, that the complainants are without remedy at law against the defendants on this covenant; and for that reason it was insisted the complainants have stronger grounds for invoking the aid of a court of equity. Whereas, on behalf 'of the defendants, counsel urged that if the defendants have no rights at law under the covenant they can have no protection in equity.

It is clear that the complainants cannot maintain an action at law on this covenant in their own name. But may they not maintain an action in the name of the covenantee, and be protected by a court of equity in the use of his name, if necessary ? But whether this be so or not, I do not think it follows that because a suit at law cannot be maintained on the covenant, a Court of Chancery may not protect the rights of parties under it.

In the case of Barrow v. Richard and others, 8 Paige Ch. Rep. 351, one Mercein owned a block of land in the city of New York. He divided it into lots and sold them to different individuals. The grantees covenanted, respectively, against the erection of a certain description of buildings. On a bill filed by one of tlie grantees against another, it was held, that the covenants in the deeds of the different lots were for the mutual benefit and protection of all the purchasers of lots on 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 erection of. buildings prohibited by the covenant. This would seem to conflict with the decision in the case of The Duke of Bedford v. Trustees of the British Museum, 2 Sugden on Vendors, App. 361, where, in a case involving the same qirinciple, the Vice-Chancellor sent the case to a court of law. Lord Eldon decided the party had no relief. The reasons for his conclusions are not given.

But admitting that the complainants are entitled to the benefit of the covenant, it cannot avail them, unless it be made to appear that the buildings and machinery the defendants propose erecting, are of a character prohibited by the covenant.

The covenant is, that the lessees should not use on the demised premises, or suffer a forge or furnace for the manufacturing of iron.

The defendants admit that they intend to use, in their buildings, forges for the purpose of heating iron, and moulding and working it into different kinds of articles to be used in the construction of locomotive engines. They deny that such forges are forges for the manufacturing of iron, as contemplated by the parties to the covenant.

On behalf of the complainants, it is argued that the evil to be guarded against was the working of iron in fires, and to prevent filthy trades in the neighborhood of cotton mills.

These lots were laid out, originally, for manufacturing purposes; a canal is cut, bounding them on one side, and intended to supply water to drive machinery. It was not intended to restrict the use of the lots to the erection of cotton mills. To have restrained the lessees from the use of fires, to mould and work iron for mechanical objects, would have been putting a restraint upon the purposes to which the property was eminently adapted, and the tendency of which would be, necessarily, to diminish the value of the property.

If the restraint was against the lessees erecting a forge or furnace, the complainants’ construction of the covenant would, I think, be the right one. But the covenant does not prohibit the erection of a forge or furnace, but of a forge or furnace for the manufacturing of iron or copper, or the erection of any building for any such purpose.

"What is the definition of a forge or furnace for the manufacturing of iron? For, if there is a definition comprehended and understood alike by scientific men and by mechanics acquainted with the business referred to, such definition ought to control the court in its construction of this covenant.

What is such a forge or furnace ? An establishment, or mechanical contrivance by which iron is made or manufactured from the ore. A forge manufactures or makes malleable iron direct from the ore. A blast furnace makes east iron direct from the ore.

From what is iron manufactured? 1't is manufactured from the ore. By a blacksmith’s forge iron is not manufactured. But, by it, from iron itself, machines or instruments of use are manufactured.

It is not the intention of the defendants to erect any forge or furnace for the manufacture of iron. Their object and intention is not to make iron, but to use iron when made, to be worked up into different materials.

I do not think that the erection of the buildings and apparatus designed by the defendants, will be a breach of the covenant in question.

The motion for an injunction is denied, with costs.

Cited in Brewer v. Marshall, 4 C. E. Gr.


text:
    Aaron V. Brown, complainant, and John R. Holcomb and John G. Reading, defendants.
    1. If a debtor makes an assignment for the benefit of his creditors, such assignment must be in conformity to the statute. He has no right to give a preference of one creditor over another, nor has he a right to annex to such assignment a condition which contravenes any provision of the statute.
    2. The assignee cannot protect the property from the debtor’s creditors, by virtue of such an assignment. If an assignment is made for the equal benefit of the creditors, the assignee must proceed to discharge its trusts in conformity to the provisions of the statute.
    3. But where, at the request of some of the creditors, the books of account, notes, &c., were placed in the hands of a responsible person to collect, and for no other purpose, such an assignment was held to be no more than a power of attorney. It did not place the property beyond the control of the debtor; it created no right between the assignee and the creditors There was nothing illegal in such assignment, nor could it prejudice the creditors.
    This cause was heard on bill and answer. The material facts contained in them are fully stated in the opinion of the Chancellor.

      Allen, for complainant.
    P. J. Clark, for defendants.
   The Chancellor.

The bill alleges that one of the defendants, John R. Holcomb, and the complainant, were partners in trade, as merchants or store-keepers, and that on the 1st of March, 1851, they dissolved partnership; that a short time after the dissolution, on the application and proposition of the complainant, an arrangement was made between them, in pursuance of which, the complainant assigned to Holcomb all the assets of the late firm, and thereupon Holcomb executed and delivered to the complainant, Holcomb’s own bond, in the sum of five hundred dollars, with the following condition : Whereas, the above-named' Aaron V. Brown has this day assigned and set over to the said John R. Holcomb the books of account of the late firm of Hoi-' comb & Brown, to enable him to pay the debts and liabilities of said firm, and also the notes, bonds, vouchers, and other securities, for the same purpose. Now, the condition of this obligation is such that if the said John R. Holcomb shall indemnify and save harmless the said Aaron Y. Brown from the payment of any of the debts and liabilities of said firm, then this obligation to be void; otherwise, to remain in force and effect.”

The bill alleges that since this arrangement, Freeman & Davis, creditors of the late firm of John R. Holcomb & Co., have recovered a judgment, and that, by virtue of an execution issued thereon, a- levy has been made upon the goods and chattels of the complainant; that Holcomb has become insolvent — has confessed a judgment to his father for fifteen hundred dollars, and has encumbered his real estate for more than its value;-that since then, he has made an assignment to the other defendant, John G. Reading, of his individual personal property, to a considerable amount, and also of the assets of the late firm; that it is a special assignment, for the benefit of such creditors only as will take such sum as he chooses to offer them, in full satisfaction of their debts.

It is alleged that this assignment was made for the fraudulent purpose of delaying and defeating the creditors, and is in contravention of the act “ to secure to creditors an equal and just division of the estates of debtors who convey to assignees for the benefit of creditors.”

It is unnecessary to refer further to the contents of the bill, as the merits of the case are not affected by any other of the allegations contained in it.

The prayer of the bill is that Reading may be decreed to pay the debt of Freeman & Davis, and such other judgment creditors as may apply for the purpose; that the assignment may not be kept on foot, or used, to delay, hinder, or defraud the judgment creditors of the late firm, and that a receiver may be appointed, &c.

The court will not interfere, unless it is necessary to do so in order to protect the rights of the complainant. In decreeing relief to the complainant, it might follow, as incidental to such relief, that the judgment creditors of John G. Holcomb & Co. would bo protected. But such is not the primary object of this bill, and, for such a purpose, the proper parties are not before the court. The complainant must be entitled to relief on his own account, or the bill cannot stand.

It is manifest that the equity upon which this bill rests is that the complainant is entitled to the protection of the court against the consequences to him of the assignment from Holcomb to Reading. If we strike the assignment out of the bill, the complainant has nothing to stand upon.

The complainant voluntarily placed all the assets of the firm in the hands of his partner. He relinquished all control over these assets, and took from his partner a bond of indemnity, for protection. Holcomb has a right to these assets, and this court will not interfere with his management of them, as between the complainant and him, unless he is taking advantage of his control over them to defraud the complainant.

The insolvency of Holcomb is no ground for relief. It does not follow that, because he is insolvent, he is therefore dishonest. The defendant can manage and settle up the affairs of the late firm better than it can be done by any stranger appointed by the court, and I cannot interfere with him, unless I can see that he is acting dishonestly.

The case is before me on bill and answer, and the answer must be taken as true.

The answer denies the equity of the bill. It denies the fraud charged, and explains every allegation made imputing fraud, and the explanations given are consistent with honesty.

An assignment, such as the bill alleges to have been made, would have been illegal. It would have been void as against creditors. If a debtor makes an assignment for the benefit of his creditors, such assignment must be in conformity to the statute. He has no right to give a preference of one creditor over another, nor has he a right to annex to such assignment, a condition which contravenes any provision of the statute. The assignee cannot protect the property from the debtor’s creditors by virtue of such an assignment. If an assignment is made for the equal benefit of the creditors, the assignee must proceed to discharge its trusts in conformity to the provisions of the statute.

The defendant denies that he has made the assignment alleged in the answer, or that he has made any assignment for the benefit of creditors. He says that some of the creditors applied to him, and said it would be more satisfactory to them if he would place the books of account, notes, &c., in the hands of some responsible person to collect; and that, to comply with their wishes, he placed them, by assignment, in the hands of Mr. Reading for the purpose, and with power to collect the same, and for no other purpose. Such an assignment was nothing more than a power of attorney. It does not place the property beyond the control of Holcomb. It created no rights between the assignee and the creditors, and there is nothing illegal in such assignment, and nothing to prejudice the creditors or the complainant.

The defendant Holcomb further states that the property, together with his own individual property, is not sufficient to pay all the creditors in full, and he admits that it is his intention to offer a ratable proportion to all the creditors, and to pay such' of them as are willing, on receipt of such proportion, to*give a full discharge from their claims; and as to such as refuse to give such discharge, he intends to leave them to their legal remedy, but in no way to protect the property against their claims and legal remedies. But this forms no part of the assignment to Reading. It is a mere resolution or determination he has formed in his own mind.

I do not see anything illegal or fraudulent in this. A debtor may, with propriety and honesty, where he finds himself insolvent, say to a creditor,I will -give you your fair proportion of my property. I will not prefer you. If you take my offer, well; if not, there is the property, take such preference as the law will give you, but I will not prefer one creditor over another.”

This is all Holcomb has done. Freeman & Davis have recovered a judgment. He says he has not property enough to pay them. He denies that he has placed the property beyond their reach as creditors, and he shows that it is within the reach of their judgment and execution. They have chosen to levy on the goods of the complainant. No action of the court, in this bill, would afford to the complainant any relief in respect to the execution of Freeman & Davis. They would sell the complainant’s property still, and have a right to do so without being interfered with by the court.

But the complainant’s counsel says that notwithstanding the denials of the answer, the defendant’s conduct is suspicious, from his own statement of the facts, and that there is still something concealed about the assignment to Reading, and that the defendants’ answer is equivocal in regard to it.

But the complainant has not replied to the answer, and has, therefore, denied to the defendant an opportunity of proving his defence. Ho has not excepted to the answer for insufficiency. If, under such circumstances, he sets down his cause for final hearing upon bill and answer, he must concede to the defendant the benefit of his answer.

As I have already said, the equity of the case rests upon the simple point whether or not the assignment to Reading was a conditional or illegal one. The defendant has denied that it was, and has denied the facts from which such an inference is to be drawn. The complainant has not taken issue upon the point, and the answer of the defendant is entitled to full credit.

The bill must be dismissed, with costs.