Volume 1 — Sandford's Chancery Reports

On the third of March, 1825, Horn and others demised to Cook & Woodruff, for 21 years, at a yearly rent payable quarterly, a lot of ground with several buildings thereon, at the corner of Delancey and Suffolk streets, in the city of New-York. In 1840, Horn, by survivorship, became the sole lessor, and entitled to the rent; and the complainant became the assignee of the lessees.

The complainant obtained a judgment at law, against the defendants R. A. Yoe and J. R Bleecker, and issued an execution thereon, which was returned unsatisfied. He thereupon commenced this suit against the judgment debtors and Charles Yoe, their assignee, to set aside their assignment as fraudulent and void against creditors, and to compel payment of his debt.

This was a bill to foreclose a mortgage executed by James N. Wells as the attorney of Charles A. Williamson, and Catharine H. his wife, Rupert J. Cochran, and Isabella M. his wife, Charles A. Williamson, trustee of Mrs. Cochran, and Bayard. Clarke. Mr. and Mrs. Williamson and Mr. and Mrs. Cochran answered, denying the validity of the mortgage. The bill was taken as confessed by Clarke.

<p>The donee of a gift, mortis causaj, is not a competent witness in behalf of herself or others interested in the gift, to sustain it, in a suit by executors against the recipients of the fund; nor does the execution by her of a release to infant legatees, who would be entitled to the fund under the will, render her competent.</p> <p>The alleged donatio mortis causa, not sustained upon the evidence.</p> <p>The donee, and a colluding executor, were held liable for the whole sum, although they had distributed it among themselves and the others ; but they were permitted to be subrogated to the complainants’ remedy against the latter.</p> <p>Some of the recipients were married women;</p> <p>Held, that they were liable as tort-feasors for the respective amounts received by them.</p> <p>There is no lien in favor of the executor's, upon life interests in real estate devised to the respective wrong-doers, by the testator.</p> <p>A decree made against two of the complainants, who had received a portion of the alleged gift; and the fund was ordered to be paid to two of the executors only, the other three having participated in the distribution, which was set aside.</p>

The bill in this cause was filed to foreclose a mortgage, for $1500, executed by Henry A. Burr to the complainant, on the 1st day of November, 1837, accompanied by a bond executed by Burr, with Whitehead & Turner. The mortgaged premises were conveyed by Burr to Gr. M. Sloat, subject to the mortgage; by Sloat they were conveyed to the defendant Van Hook, and by the latter to the defendant Kinney.

The hill was filed for the partition of lands held in common by the complainant and the defendant Hoysradt, and the only question in the case arose upon the complainant’s claim against Hoysradt for the value of his maintenance during his minority.

The bill was filed by Charles B. Lansing, as receiver of the property and effects of J. Woodworth, (appointed by the court of chancery in a creditor’s suit commenced by R. Woodworth,) for the purpose of setting aside as fraudulent against R. Wood-worth and other creditors, a judgment confessed by J. Wood-worth to Gould, and an assignment executed by him to the same person.

% The bill was filed by Jacob A. Lord, to compel the defendants to execute to him a deed of 100 acres of land, in the town of Hancock, in the county of Delaware ; and to restrain an action of ejectment for its recovery, which they had commenced against him in October, 1840.

The suit was brought to obtain a perpetual injunction against cutting and removing timber on the complainant’s land; and for an account of such as had been cut and removed after January 1,1841. The defendant claimed an absolute right to all the pine timber on the land, under a conveyance, which with the other facts, will be found stated in the opinion of the court.

The bill was filed for the purpose of having a deed executed by Brown to Dewey, conveying a farm in the county of Schoharie, declared to be a security, and to have it given up and cancelled on the ground of usury. The answer, which was on oath, denied that the deed was intended as a security, and denied all the charges of usury. A great number of witnesses were examined on both sides.

The bill was filed to foreclose a mortgage for $2000, dated November 30, 1826, and executed' by Henry P. Van Dyck to his mother, Maria Van Dyck,- and by her assigned to the complainant. The defendants were the widow and heirs of H. P. Van Dyck. It appeared by the pleadings and proofs, that Henry P. Van Dyck bought the farm mortgaged, of Joseph Crandell, for $2000.

The bill in this cause was filed by Mead, a judgment and execution creditor of Henry Phillips, to set aside as fraudulent against creditors, a deed of certain real estate executed by him to the defendant, Clarissa Howard, dated April 20, 1841, and an assignment from him to Mrs. Howard and N. Ferris, dated August 31, 1841, which transferred all the property of Phillips in trust for the payment of his creditors, in the order therein specified.

This was a bill of discovery in aid of the defence in an action at law upon a policy of insurance. On the 8th of July, 1833, the complainants effected an insurance for Peter Harmony & Co., on account of whom it might concern, loss payable to them, on specie, and silver and gold bullion, valued at §31,525, from Callao and Guayaquil, to Cadiz, shipped in the name of Capí. H. Barstow, in the ship Ysidra, of which he was master.

The original bill was filed March 22, 1836, by Benjamin Wright and Eliza his wife, and Charles W. Miller, against Ezra W. Miller, Hannah Miller, formerly his wife, Ezra Miller, Joseph Miller, Albert A. Westervelt, and Robert Campbell. Mrs. Wright and Charles W., Ezra, and Joseph Miller, were children of Ezra W. and Hannah Miller, and were born in 1811,1812,1813, and 1814, respectively.

<p>A testator directed his executors to invest a fund, the interest of which he gave to his wife, and after her decease, he gave the principal to his two children equally. Held, that the children took vested interests in the legacy at the death of the testator.</p> <p>The equity of a married woman for a settlement, does not survive to her children; and where there is no contract for a settlement, nor any proceeding by the wife to enforce one during her life; the creditors of the husband are entitled to a legacy bequeathed to her, and her children have no equity to prevent its payment to them.</p>

<p>An insolvent debtor, on the eve of making a general assignment, transferred a bond and mortgage in trust for the benefit of certain of his creditors. The bond and mortgage were not payable until about four years thereafter. The transfer contained a proviso, that the assignee should retain the bond and mortgage until the expiration of fhe period it had to mature, and should not part with it, or attempt to collect the principal, until that time.</p> <p>Held, that the transfer was fraudulent, as against creditors.</p> <p>Held, also, that it being valid against the assignor, it did not pass by his general assignment, made a few days subsequently</p> <p>The debtor having been declared a bankrupt, pending the suit, it was held that no final decree could be made until the assignee in bankruptcy was made a party.</p>

The bill was filed to foreclose a mortgage executed by Richard Brown to the complainants on the 1st day of January, 1840. The mortgage was given for the purchase money of the lands included in it, which were conveyed to Brown by the complainants at the time the mortgage was executed. Brown after-wards died intestate, leaving no heirs, or widow, or other person entitled to claim the premises.

This was a judgment creditor’s bill, filed September 13th, 1842, after the return of an execution, wholly unsatisfied. The defendants set forth in a plea the following defence. The complainant, Cochran, resided in the city of New-York, and in July, 1841, commenced a suit by attachment against the defendants, in the county court of Fairfield county, in the state of Connecticut, to recover the demand upon which this bill was filed.

Thomas Campbell,, the father of the complainant, died in 1838, leaving a will in which he appointed Oliver Johnston and George Cummings, the defendants, guardians of his children, and executors of his estate, real and personal, which, in the terms of the will, he devised to them in trust, to be sold for the benefit of his heirs.

The bill in this cause was Sled on the 17th of October, 1842. Held: taken and reckoned as distinct and separate from that of the said Robert, and that he would not intermeddle therewith by assuming the control or disposition thereof, or by charging or encumbering the same with his debts or otherwise, and also that, for the purpose of giving effect to the intention of the parties to those presents of…

This was a bill to foreclose a mortgage. The defence to the suit, the grounds upon which it was urged, and the facts which were established, are sufficiently stated in the opinion of of the court.

The case came before the court on a demurrer to the bill for want of equity. The opinion delivered contains a summary of the bill.

These causes were precisely similar, and were heard together.

The contest in this case was between judgment creditors of Ezekiel Williams, each of whom claimed the surplus which arose from the sale of the mortgaged premises, in the suit of Russell v. Williams. The’ judgment in favor of the agent of the state prison was the prior lien, but Hayden and Buck, who had the next judgment, insisted that the former was satisfied as to them.

This was a bill for the partition of lands, which was brought to a hearing on pleadings and proofs. The three complainants became the purchasers, at a sheriff’s sale, of a house and lot owned by F. J. Clute. After Clute’s death they received a deed from the Sheriff, and then exhibited a bill in this court against the widow of Clute, to compel a partition of the premises, or a sale and division of the proceeds.

The bill in this cause was filed to set aside a bond as usurious, which had been executed by J. and S. V. R. Bogert to one Van Brunt, and by him assigned to the defendants. One of the complainants signed the bond as a surety, the other guaranteed its collection.

The bill was filed by the Receiver of The North American Trust and Banking Company, to set aside an assignment of real and personal estate, made by the company to Daniel E. Tylee, in trust to indemnify him and others for liabilities which they had previously incurred as the sureties of the company. This company was an association organized in 1838, under the act to authorize the business of banking, and it had become insolvent prior to the 26th of August, 1841.

The bill in this cause was filed by Marsh against Noah T. Pike, Cornelius M'Lean and Jeremiah Towle, to compel Pike to collect a mortgage, or to release the complainant from liability upon the debt. On the 18th of January, 1839, Pike lent Marsh $3000 on the house and lot No. 29 Fourth street in the city of New-York, upon bond and mortgage, payable in three years, with interest half-yearly.

Charles Dickinson, Jr. and Anna Maria his wife, filed their bill on the 20th day of April, 1842, against Mary Codwise and others for the partition of ten stores and lots lying on Front-street, Burling Slip, and South-street, in the city of New-York; whereof, as the bill alleged, George Codwise, Jr., died seised in fee simple. Mary Codwise was his widow ; and as the bill charged, had no estate in the premises, except her dower right, at the death of her husband.

The bill in this cause was filed by Alexander Grant, to establish a last will and testament alleged to have been made in October, 1835, by his father, Alexander Grant 3d, and lost or' destroyed after his death. The decedent died on the 1st of February, 1842, at the age of 84 years. The complainant had for a great many years after he came to manhood, lived in the same house ivith his aged parents, taken care of them, and conducted the farm.

The bill was filed in March, 1843, to compel the specific performance of a sealed agreement, by which William Simpson contracted to sell and convey a small piece of land, being a part of his farm, to Garnsey Hickox. The agreement was dated February 27, 1841, and was witnessed by John Simpson. The price was to be paid on or before February, 1843.

The suit of Cram was a creditor’s bill, founded on a judgment at law against Abraham Mitchell, on which an execution had been returned unsatisfied. L. Allen, J. Hart, and H. Hart, were made parties as the assignees of Mitchell, he having made a general assignment to them for the benefit of his creditors, on the 25th of May, 1841, The bill charged that the assignment was made with the intent to hinder, delay and defraud the creditors of Mitchell.

The hill in this cause was filed by A. B. Hayes and G. C. Thorburn, executors of Stephen Mayers, to compel the defend-, ant, Kershow, to complete a contract for the purchase of certain real estate, made by him at an executor’s sale, in February, 1842. Kershow interposed no objection to completing his purchase, except that the title to the land was imperfect.

The bills in these several cases stated in substance that the demised premises in 1842-3 belonged in fee to Mrs. Tylee and Mrs. Dempsey; one moiety to each. The several complainants hired the premises respectively of Mr. Tylee, acting on behalf of his wife and Mrs. Dempsey. They hired for one year from May 1, 1842, and are in as tenants from year to year, and have the right to the possession until May 1, 1844. The rents are payable at the usual quarter days.

<p>In the construction of a will, if it be impossible according to established principles, to give effect to the whole apparent intent of the testator; the construction must be adopted which will carry out the principle design of th.e will, if that be legal; and whatever is by law inconsistent with such design, must yield.</p> <p>A testator devised all his real estate to his wife, to be at her entire disposal, but if any part thereof remained unsold at the time of her death, he devised the same to his children and grandchildren. He died before the revised statutes.</p> <p>Held, that the wife took the entire fee simple; and that the subsequent limitation over, being repugnant to the gift, was void.</p> <p>It cannot be upheld as a remainder, because as the law then was, a remainder could not be limited on a fee : nor as an executory devise, because, it was defeasible by the act of the. first taker, contrary to the essential principle of such a devise.</p>

The Merchants’ Exchange Company was incorporated by the legislature of this state, on the twenty-seventh day of January 1823.

The bill was filed by the infant.children of Henry A. C. Sturges, and Jane M. his wife, against the executors, devisees and legatees of their grandfather, David Cargill, who died oil the 12th of June, 1840, leaving a large real and personal estate. By his will,- dated May 21, 1840, he disposed of the whole of this estate in the manner which is stated in the opinion of the court.

The bill was filed by Jonathan Havens, one of the executors of Gabriel Havens, late of the city of New-York, who died on the 7th of April, 1839, to obtain a construction of his will, and a decree for the sale of his real estate.

The bill in this cause was filed by Solon Grout, against James Van Schoonhoven and John T. M'Coun, trustees in the marriage settlement hereinafter set forth, and against his wife, Rebecca Ann Grout, and their infant children. It prayed to have the settlement declared void and cancelled, and in default of avoiding it, to have it executed according to his wife’s wishes, and a' part of the personal property paid over to him.

On the 1st of May, 1841, the complainants loaned to R. W. Redfield, $4100, to be repaid on demand, with interest; and he delivered to them, as collateral security, 200 shares of the stock of the Williamsburg Fire Insurance Company, and 200 shares of the stock of the Hudson Fire Insurance Company. Redfield was at that time the cashier of the Commercial Bank in the city of New-York, and continued to be such cashier till after its failure.

The bill in this cause was filed by a judgment creditor of William Cornell, whose execution had been returned unsatisfied, for the purpose of setting aside an assignment of all his property, real and personal, made by him to Benjamin and Elijah Farrington, on the 9th of September, 1841. Cornell and Benjamin Farrington were co-partners.

The bill was filed on the 4th of January, 1843, by the acting executors of Thomas Storm, deceased, against his children, devisees and legatees, to settle the construction of his last will and testament, which was executed by him on the 30th of March, 1833.

The bill was filed by judgment creditors of William Laimbeer, to reach his things in action, and to set aside a judgment and deed, which he had given to his brother George.

This case was heard on a general demurrer to the bill for want of equity.

On the 18th of March, 1843, in pursuance of a previous contract, R. S. Hartshorne conveyed to the complainant, Balchen, certain real estate; and Balchen thereupon executed to Hartshorne a covenant to pay him $3750 on the 5th of April following, if the title conveyed turned out on examination, to be valid and unincumbered.

The bill was filed to foreclose a mortgage executed by Garmo to Banta, and for relief, if necessary, upon a prior mortgage. The facts shown by the pleadings and proofs were as follows : On the 12th of January, 1831, Garmo executed a mortgage to the County Clerk for $2100 with interest at six per cent. The money being called for, Garmo negotiated a loan for $2200 from Banta at seven per cent, in order to pay off the mortgage.

The bill in this case was filed to obtain a partition of the real estate of which Daniel Carmichael died seised. The complainant, Eleanor Thompson, is a daughter of Carmichael. The defendants, are his widow, his four infant children and his executors. Mrs. Thompson was a child of the decedent by a former wife.

The b-ill was filed by Silas M. S til well and Caroline Norsworthy his wife, and Silvanus Rapalje, the trustee of Mrs. Stihvell under a marriage settlement, for an account of her share of the personal estate, and of the rents and profits of the real estate of her father, Samuel Norsworthy,- deceased. The defendants were his executors, and two of them were testamentary guardians.

The bill in this cause was filed on the 25th day of October, 1843, to foreclose a mortgage executed by John Dougherty to Porter W. Earl, to secure the payment of a bond executed by the mortgagor and Alexander M‘Cotter to Earl, both dated 5th December, 1835, and conditioned for the payment of $1400 in four annual instalments with annual interest. The mortgaged premises were situate in the city of Buffalo.

The Triton Insurance Company was incorporated on the 4th day of April, 1838, with a capital stock of $250,000, in shares of $50 each. The commissioners appointed to receive subscriptions and distribute the stock, were to receive five per cent, on each share at the time of subscription. The residue might be secured on bond and mortgage on unincumbered real estate.

The bill was filed in. September, 1839, by Catharine L. Stuyvesant, widow of Nicholas W. Stuyvesant, deceased, to foreclose a mortgage for $4,666 66, executed by Charles Henry Hall and his wife to N. W. S., dated September 28, 1824, and payable twenty years after its date, with annual interest on the first of May in each year.

This was a suit to foreclose a mortgage. The bill was filed on the 26th of January, 1841. It stated that W. W. Backus, on the 1st day of May, 1836, executed to John Darley his bond and mortgage for $500, payable in four years with semi-annual interest at six per cent. The property mortgaged was on Hudson street in this city. The bond is lost. The mortgage was recorded, May 26, 1836.

The bill in this cause was filed on the 23d day of March, 1839, by Philip Kniskem and Daniel Angle, two members of the Lutheran Church and Congregation, or Society of New Rhine-beck, in the town of Sharon, Schoharie County, known by the corporate name of “ The Ministers and Trustees of the Lutheran Church in Rhinebeck,” commonly called St- Peter’s, or New Rhinebeck Church; and Marcus Brown, one of the trustees, and David Sommer, a member of the Lutheran Church or Society at…

The bill in this cause was filed on the 14th day of October, 1840, against Martin, Williams, Browne, and Jacobson, and it prayed to have a transfer of a bond and mortgage made by the complainant to Browne, declared fraudulent and void, and to have the same restored. The bond and mortgage were executed to the complainant in 1835, to secure $1000, and were a good security. The defendants, except Browne, answered severally, and the cause was heard on pleadings and proofs.

The bill was filed by the heirs of Miles Smith, against the heirs of James Underdunck, for a specific performance of the contract set forth in Lord v. Underdunck, (ante p. 46,) so far as to obtain a conveyance of the 800 acres.

The bill in this cause was filed by Bernard Lynch against John Clarke and Julia Lynch, for the purpose of obtaining a declaration that Clarke was seised of the celebrated Congress Spring and the adjacent lands, at Saratoga Springs, in trust as to an undivided moiety thereof, for Thomas Lynch, formerly of the city of New-York, deceased; and that the complainant was entitled to all the equitable interests which T. Lynch had in the property. .