Volume 26 — Wendell's New York Reports

Walter Wood by his last will and testament, made in August, 1826, after making several specific devises and bequests, disposed of all the residue of his estate, real and personal, to five executors in fee, upon trust to sell and dispose of the same, and after payment of debts and legacies to invest the proceeds in stocks or in bonds and mortgages upon unincumbered reaj estate.

A PPEAL from Chancery. John Clendining, by his -CA. last will and testament, bearing date 22d July, 1829, after making a specific bequest to his wife, gave all his real and personal estate to trustees, and directed them to convert the whole into money, and from the proceeds of the same to pay to his wife an annuity ; to pay his daughter Margaret, the wife of Horace Bulkley, five dollars, as and for her full and entire portion of his estate, he having already advanced and…

The appellants filed a bill in chancery for the purpose of obtaining a decree, declaring a deed of certain lands in the city of New-York, executed by Henry Eckford to Sarah Drake, bearing date 14th August, 1826, a mortgage, and giving them the right to redeem.

<p>Where an act of incorporation, of an insurance company contained a clause subjecting the stockholders of the company, at the time of its dissolution, individually to the payment of the debts of the company contracted before its dissolution, and such company had, in compliance with an act of the legislature, assigned its property for the benefit of the creditors of the company, (such act declaring, that upon the making of such assignment the stockholders should in no wise be liable for the demands of the creditors of the corporation,) and the creditors received dividends under such assignment: It was held that though the act under which the assignment was made was unconstitutional and void, as to creditors whose demands existed previous to the passage of the act, still, that the creditors having come in and accepted dividends under the assignment were estopped, and deprived of the right of calling upon the stockholders individually for the payment of the residue of their debts not received under the assignment.</p> <p>Whether the section of the statute limiting the bringing of actions to three years, for any forfeiture or cause upon any statute made or to be made, the benefit or suit whereof is given to the party aggrieved, embraces actions for statutory liabilities, such as the action given in this case against stockholders, or whether it is limited to actions upon penal statutes where the penalty is given to the party aggrieved, or where the statutes are penal in their nature and the remedy is confined to the party injured, quere.</p> <p>The effect and operation of the insolvent laws of a state upon contracts to which the citizens of another state are parties considered.</p>

<p>Where a lease contained a covenant that at the expiration of the term the buildings erected by the tenant on the premises should be appraised, and that the lessor should either pay the appraised value or grant a new lease of the premises for the term of twenty years upon such terms as he might think proper, and os might he approved hy the lessee; and in case the lessee should not approve of the terms offered, that he should have the right to remove the buildings within three months after the expiration of the lease, It was held that the covenant was too vague and indefinite, to authorize a decree for a new lease, and that the offer of a lease, though at an exorbitant rent, released the lessor from all obligation under the covenant, except to permit the removal of the buildings, and consequently, that he was not liable to pay the appraised value.</p>

The appellants, stockholders of the Sea Insurance Company, presented a petition to the Chancellor, under 2 R. S. 463, § 39, praying for an injunction, restraining the directors and officers of the company from disposing of its property, and for the appointment of a receiver, alleging various violations of the provisions of the act of incorporation.

<p>APPEAL from Chancery. Durant, a resident of the city of Albany, was in 1833, taxed $197.50 as his proportion of the county charges, his personal property being assessed at $25,000; and in 1834, he was taxed $215 upon a like assessment. Warrants for the collection of the taxes thus imposed, were duly issued and delivered to collectors who demanded payment of Durant, which he refused. Durant having no goods or chattels the county upon which a levy could he made to enforce payment, the warrants were returned unsatisfied to the county treasurer. The supervisors of the county thereupon filed a bill in chancery, stating the above facts and alleging that Durant was the owner of property liable to taxation to the amount at which the same had been assessed, and had not appeared before the boards of assessors and made oath or offered to make oath to reduce the valuation of his estate; that he was the owner of personal property to a large amount, which could not be reached by a warrant authorized by law to be issued for the collection of taxes, and (for the purpose of giving jurisdiction) that he had equitable effects to the value of more than $100. The bill prayed for a discovery of choses in action, credits, &c. and for the appointment of a receiver. The defendant interposed a demurrer, which was overruled by the Vice-Chancellor of the third circuit: which decision on appeal was sustained by the Chancellor, who delivered the following opinion:</p> <p><( The case made by the complainants’ bill presents the question, whether a wealthy individual taxed on account of his personal estate, can escape from his liability for the payment of the tax, if he thinks proper to invest his funds jn bonds and mortgages, or other property, which cannot be distrained and sold under the supervisors’s warrant to _ 1 the collector. It is a general principle of the common law that every person is bound and hath virtually agreed to pay such particular sums as are charged upon him by law on the sentence, or direction of a competent tribunal, having legal authority to impose such charge, 3 Black. Comm. 158; and where a statute gives the right, without furnishing an adequate remedy to enforce such right, it is a part of the established jurisdiction of this court to lend its aid and furnish an effectual remedy where it cannot be had by a common law proceeding. Here the law has imposed a tax upon the defendant in respect of the estate of which he is the owner, to be collected for the benefit of the city and county in which he resides, and if the mode prescribed by the statute for the collection of the tax, is found to be ineffectual for that purpose, the common law, or the court of chancery, must supply the defect. Where a charge upon the person of an individual is created by statute, without prescribing the mode in which the payment of the charge is to be enforced, the common law gives an action of debt to recover the amount of the charge thus created. Thus, where a revenue law directs that goods imported shall be charged with certain duties, if the owner of the goods, or the importer, neglects to pay such charge, an action of debt will lie against him to recover such duties. Atty. Gen. v. Strangforth, Bunb. Rep. 96. United States v. Lyman, 1 Mason’s Rep. 482. United States v. Hathaway, 3 idem. 324. Meredith v. The United States, 13 Peters’ Rep. 486. Whether an action of debt would lie against the defendant in the case under consideration, to recover the amount of the taxes assessed upon him, after the supervisors had exhausted the remedy prescribed by the statute, is a question not material to be discussed here, as I am satisfied it was not necessary to bring a suit at law, and exhaust the remedy by judgment and execution, before this court could have jurisdiction to compel payment out of the equitable assets and choses in action of the defendant.</p> <p>The tax itself, after it had been legally assessed, was conclusive, as to the amount which the defendant was bound to pay. And the assessment of the tax and the issuing of the warrants to the collectors to levy the same out of the property of the defendant, and the return of such warrants unsatisfied, for want of visible property whereon to levy, was equivalent to the recovery of a judgment, and the return of an execution thereon unsatisfied in other cases. For by such proceedings the complainants have exhausted the remedy which the statute gives them against the property of the defendant. In analogy, therefore, to the proceedings by creditors’ bills in other cases, I think the complainants had a right to come into this court for relief as soon as the collectors had made their return to the county treasurer in the mode prescribed by law, that the defendant refused to pay the taxes, and that he had no tangible property out of which such taxes could be levied upon the warrants delivered to them. I think, also, the allegations in the bill are sufficient to show the collectors had complied with every thing required by the statutes in making their returns to the county treasurer.</p> <p>The remaining question is, whether the suit is properly instituted in the name of the supervisors of the county, instead of the county treasurer. Although the tax, when collected, is to be paid to the county treasurer, he does not appear to be the proper person to represent the county, as the complainant in a suit for its benefit. Under the provisions of the Revised Statutes, the liability and duty of the defendant to pay these taxes are to the people of the county in their corporate capacity, as their funds in the hands of the county treasurer are diminished to the extent of the taxes uncollected, as all the other officers to whom the taxes are payable are first to receive the amounts payable to them for other purposes, and the balance is to be paid into the county treasury, for county expenses, 1 R. S. 396, § 37. The statute makes the county a corporation for cerPurPoses) and directs that all acts and proceedings by or against a county in its corporate capacity, shall be in the name of the board of supervisors, 1 idem. 364, § 1 & 3. It also authorizes the supervisors of a county to bring suits to enforce any liability or any duty enjoined by law to the body which they represent, 2 idem. 473, § 92. I conclude, therefore, that this bill was properly filed to reach the equitable interests and choses in action of the defendant for the payment of these taxes; and that the suit was rightfully. brought in the name of the supervisors of the county of Albany, to the inhabitants of which county in their corporate capacity, the moneys due from the defendant for taxes belong. The decretal order of the Vice-Chancellor must, for these reasons, be affirmed, with costs, and the proceedings are remitted to the Vice-Chancellor.</p> <p>The defendant appealed from the decision of the Chancellor to this court, where the case was argued by:</p>

<p>On a bill filed for the foreclosure of a mortgage given on the purchase of real estate, equity will not relieve the mortgagor on an allegation of defect of title as to part of the premises purchased, where the mortgagor, or person claiming under him, entered into possession on receiving the conveyance, and continues in possession without disturbance, where there is no pretence oí fraud, and where the deed conveying the premises contains covenants of seizin and warranty .*</p> <p>The principle of this rule of law is not affected by the Revised Statutes authorizing a decree in personam against the mortgagor, for any balance that may remain after a sale under the mortgage.</p>

<p>It is waste for a tenant to cut down and use wood growing on the demised premises to bum brick for sale, where he has covenanted not to cut down, destroy, or carry away any more wood or timber than should be actually used and employed on the farm, and that he would not make any manner of waste, sale or destruction of the wood or timber.</p> <p>An appeal lies from an order of the Chancellor dissolving an injunction to prevent waste.*</p>

<p>Where advances are made and responsibilities assumed by one individual to aid another in establishing and carrying on a particular business without benefit or advantage to accrue to the party making the advances, although there be an agreement that he shall have the control and disposition of the property acquired by the means thus furnished, the property is subject to a creditor’s bill, unless previous to the filing thereof actual possession be taken The relation between the parties is that of debtor and creditor; it is not that of mortgagor and mortgagee—nor are the parties partners.</p>

PPEAL from Chancery. The respondents filed a bill in chancery. By the death of their father in 1827, they became seized of a tract of twenty-one acres of land in the town of Brooklyn. They are females, and at the time of the death of their father, one was about three years old, and the other only about one year old.

This is an appeal from an order of the Chancellor, refusing to open a sale of mortgaged premises, and to order a re-sale. Tripp was the holder of a mortgage upon two lots of ground in the city of Albany, executed to him by Walter Cunningham, bearing date 21st September, 1836, given to secure the payment of $1,500, with the interest thereof, in three years.

PPEAL from Chancery. Marvin filed a bill for relief in reference to a purchase made by him of a tract of land situate in the now city of Buffalo, alleging misrepresentation on the part of the vendors prior to the sale, as to the quantity of land embraced in the tract.

<p>Concurrent jurisdiction is possessed by the state courts and the Supreme Court of the United States, in all controversies between a state and citizens of another state.</p> <p>The contract of an agent to be binding upon the principal must be within the authority conferred; and if the power of the agent be created by a written instrument, and that be known by the party with whom the contract is made, it must be strictly pursued, and cannot be enlarged by evidence of usage.</p> <p>Authority to sell, does not authorize a sale on credit, unless it be a known usage of trade that the article in question is ordinarily so sold.</p> <p>Consent or ratification of the doings of the agent may be presumed from the acts or omissions of the principal; where however a state is the principal, acts and omissions which in the case of an individual would be deemed sufficient to authorize the presumption, will not be held so.</p> <p>Where a state passed a law for the borrowing of money and authorized its governor to issue and sell bonds or certificates of stock for the amount borrowed, declaring, however, that the stock should not he sold for less than its par value, and empowering the governor to appoint agents to effect the loan; and a loan was effected upon the terms that the money should be paid hy instalments and at deferred periods, but that interest should commence immediately upon the whole sum, and certificates of stock were issued and delivered to the lender: It was held, that the contracts were not obligatory upon the state, because the agents had exceeded their authority, first, in selling the stock upon credit, and secondly, in agreeing that the interest should commence running- previous to the advance of the money—thus virtually selling the stock for less than its par value, and that therefore the state was entitled to a return of the certificates of stock.</p> <p>It was further held, that the approval by the governor of the acts of his agents, the receipt and appropriation of a portion of the proceeds of the certificates, and other acts of acquiescence of executive officers of the state, were not enough to amount to a ratification of the contracts; that they could be ratified only by the legislature, and inasmuch as it appeared that the legislature, when specially convened for the purpose, disavowed the contracts and took measures to recover back the certificates all pretence of ratification failed.</p> <p>Certificates of state stack, certifying a certain amount of money to be due to A. B .or hearer, in the hands of subsequent hona fide holders are binding upon the state in faith amd honor; and would be binding in law if the state eould be reached by legal judgment, whatever may be the equities existing between the state and the party to whom they were originally issued; it is therefore the proper exercise of the power of a court of equity to restrain hy injunction the transfer of such certificates where a case calling for its interference is established.</p>

PPEAL from Chancery. Mary C. P. Macomb filed a bill against Justus D. Miller for the specific performance of an agreement whereby the complainant contracted to sell and convey in fee, and the defendant contracted to purchase, certain real estate situate in the city of New-York, which contract defendant refused to carry into effect, alleging that the complainint had not a title in fee.

<p>Whether the vendor of land is entitled to a decree for a specific performance against the purchaser, under the circumstances hereinafter detailed, quere 1 The contract bears date 15th December, 1836. The vendor agreed to sell the premises for $10,000, to be paid as follows: the purchaser to obtain the assignment of a judgment held by a third person against the vendor, and to retain the same until the vendor executed to him a deed for the premises, and then to pay the balance of what should be left of the sum of $4000, after deducting the amount of the judgment, and the residue of the $10,-000, to be paid in four instalments, the first payment to be made on the 1st December, 1837. The purchaser to enter into immediate possession, and no interest to be demanded on the judgment, provided the vendor executed the deed. The defendant entered and within seventeen days after the contract, obtained the assignment of the judgment, and paid to the vendor the balance of $4000, after deducting the amount of the judgment. The premises were greatly out of repair and required the expenditure of a large sum of money to render them profitable. On the 24th July, the purchaser demanded a deed, and on 27th September, tendered full performance on his part, and repeated the demand for a deed, and not receiving it, he on the 2d October, gave notice of abandonment of the contract, and tendered a delivery of possession of the premises, reserving the right to take out hides put by him into vats in a tannery on the premises, when they should be fit to be removed. After which, on the 12th October, the vendor tendered to the purchaser a deed of the premises, executed in due form, which the purchaser refused to accept.*</p>

In August, 1834, Alice Lispenard, of the city of New-York, made her last will and testament, whereby she gave and devised all her estate real and personal, to Alexander L. Stewart, and appointed him sole executor. She died in 1836, and in March following, the executor applied to James Campbell, Esq., then surrogate of the county of New-York, for probate of the will.

PPEAL from Chancery. The question in this case arose upon an application to admit to probate a will made since the adoption of the Revised Statutes. Dorothea Brinckerhoff made her will, dated 25th February, 1834.

ERROR from the Supreme Court. Shields brought an i action of assumpsit in the superior court of the city of New-York, for the non-delivery of a quantity of iron purchased by him of Davis and others. The purchase was made on 31st January, 1836, of a broker of the defendants, of fifty tons of English iron at $70, per ton, at a credit of six months, the iron to be in good order, and the plaintiff not to be bound to take it unless it arrived in reasonable time.

Tjl RROR from the Supreme Court. This was an action -*—* of trover for a quantity of rollers for printing calicoes, brought by Bryce and Rennie against Brooks in the superior court of the city of New-York.

ERROR from the Supreme Court. Turrill brought an action against Dolloway for the publication of an alleged libel. Held: and of the suffrages of his fellow-citizens for the important office for which he was a candidate; that the supreme court had passed on the construction of the libellous article in question in accordance with these views, and had determined that the paper was not susceptible of an innocent construction, but was libellous in its…

lilRROR from the Supreme Court. In the construction * of the new aqueduct at Rochester, a race-way by which water was conducted from the Genesee river to a valuable grist-mill belonging to Kempshall was obstructed by the agents of the state, from the 20th March to the 1st day of June, 1837, whilst the arch for the aqueduct was constructing, by which he sustained damages assessed by the canal appraisers at $1,866.66.

ERROR from the Supreme Court. This was an action of assumpsit brought in the superior court of the city of New-York by Daniel McLaren, on an instrument bearing date 28th August, 1828, executed by Joseph Watson, whereby the latter guarantied the payment of a promissory note for $300, drawn by W. A. and E. C. Blackney, payable to the order of William Watson.

ERROR from the Supreme Court. An action was brought by Stevens & Cagger against Adams, for the services of Stevens as counsel in arguing two causes for the defendant, in this court.

XT'! RROR from the Supreme Court. Wheeler and oth- ■* ers brought an action of replevin in the Washington common pleas, against McFarland for taking a quantity of boards, which they as the owners of a saw-mill had sawed for one Vaughan. It was agreed they should receive $2.-25 per one hundred pieces, and have a lien upon the same until paid.

Tjl RROR from the Supreme Court. Lyon sued Jerome * in an action of trespass for taking a quantity of stone from his quarry, used in the construction of locks on the Oswego canal. The defendant justified the taking as chief engineer in the construction of the canal, under the statutes relating to the construction of the state canals. The stone was taken by his direction.

ERROR from the Supreme Court. Ring and another brought an action of debt in the New-York common pleas against Gibbs and another, on a bond executed by the defendants to release from arrest a ship against which summary proceedings had been had under the statute, 2 R. S. 493.

<p>A mortgage of goods and chattels, though unaccompanied by an immediate delivery and not followed by an actual and continued change of possession of the thing mortgaged, is mot void if it be made to appear on the part of the mortgagee, that the same was made in good faith and without any intent to defraud purchasers or creditors.</p> <p>The want of change of possession subjects the instrument prima facie to the imputation of fraud, but such imputation may be rebutted by proof of good faith; the testimony to be received, it seems, will be governed by the general rules of evidence applicable to questions in which it is the province of a jury to pass upon the intent of parties, and that all proof tending to satisfy the understanding or the conscience of the jury as to the bona jidcs of the transaction, not inconsistent with the general law of evidence, is admissible.</p> <p>Where in the case of a mortgage of the moiety of a schooner not in port, of which delivery was not made until several months after the execution of the instrument, and not until after the forfeiture of the mortgage, although the vessel returned to port and possession might have been delivered in the meantime, the judge excluded from the consideration of the jury facts which had been proved, viz: that the mortgage was founded upon a fair and adequate consideration; that it was duly filed; that the other moiety was owned by third persons; and that the vessel was sailed on joint account of the owners until a few days previous to the delivery: It was held that the judge had erred in so doing, and a new trial was accordingly granted.</p> <p>A mortgage of a vessel (navigating the lakes) in the usual form of personal mortgages to secure the payment of a debt, and containing none of the characteristics of a contract of bottomry, is not within the exception to § 5 of the act relative to fraudulent conveyances as specified in § 7, of the same statute, saving contracts of bottomry from the operation of § 5; nor is it within the exception in the same section saving assignments or hypothecations of vessels at sea, or in foreign, ports: the fresh water lakes of this country notbeing seas within judicial interpretation, nor the port of a sister state a foreign port.</p> <p>Whether a bottomry contract in respect to a vessel navigating the lakes is a valid and binding contract, quere.</p>

TERROR from the Supreme Court. The defendant in ^ error brought an action of ejectment in the court below to recover the possession of certain premises situate at Black Rock in the county of Erie, bought in by the President of the Insurance and Loan Company, on the 27th August, 1834, at a sale by virtue of a foreclosure of a mortgage, executed by the defendant to the Company, and for the amount of the bid made by the president, the master took the receipt of the company.

jjjN RROR from the Supreme Court. Bryan and Mait- '* land brought an action in the superior court of the city of New-York against the American Insurance Company, on a policy insuring goods and merchandize to the amount of $21,000, to be transported from the city of JVew-Yor/c to New-Orleans by the ship Kentucky, and at and from thence by steamboat or boats to Tuscumbia in the state of Alabama; beginning the adventure upon the goods and merchandize from and immediately…

ERROR from the Supreme Court. Myers brought an action in the common pleas of New-York against Powell and others as common carriers, for the loss of a trunk and its contents, taken on board a steamboat owned by the defendants, at West Point, by a son of the plaintiff, who, at the time, was a minor, and took passage in the boat for New-York. The boat usually left Newburgh at five o’clock P. M., and arrived at New-York between nine and ten the same evening.

|RROR from the Supreme Court. In July term, 1840, 1* the attorney-general filed an information in the nature of a quo warranto against Thaddeus Clark, charging him with having on the first day of April, 1839, usurped the office of a justice of the peace of the fifth ward of the city of Rochester, and from thence until the filing of the information had unlawfully held and exercised the said office.

<p>Alienage cannot be set up, in bar of a recovery in an action of ejectment, by the daughter of a person, who became a citizen of the United States at the time of the declaration of independence, although the parent was a native of Scotland, and the daughter was born there in 1769, married, and remained there Under coverture until 1825, and never came to this country until 1830.</p> <p>Whether the ability of the plaintiff to taire and hold real estate here by descent, is derived from the citizenship of the father, or is conferred by the second clause of the fourth section of the act of Congress of 1802, establishing a uniform rule of naturalization, quere.</p> <p>What constituted a European subject of Great Britain, domiciled here at the time of the declaration of independence, a citizen of the United States, considered.</p>

ERROR from the Supreme Court. Williams’ administrators brought an action of covenant against Pearson i,n the superior court of the city of New-York,, on an instrument in writing under seal, executed by the defendant, Isaac Green Pearson, in the following words: “ In consideration that Cornelius Tiebout Williams, for the consideration of twenty-one thousand dollars only, has by deed of this, date conveyed to Isaac Gr.eep Pearson fourteen lots of land in the twelfth ward of…

ERROR from the Supreme Court. The attorney-general on the relation of Ebenezer P. Upham, on the second day of January, 1839, filed an information in the nature of a quo warranto, charging Robertson Whiteside with having on the sixth day of December, 1838, intruded into the office of treasurer of the county of Chautauque, without lawful authority; and with having since that time held the same, claiming to be such treasurer, and to have use and enjoy the liberties, privileges,…