Beach v. Bradley, 8 Paige Ch. 146

Beach v. Bradley

8 Paige Ch. 146 | New York Court of Chancery | 1840

The Chancellor.

If it was proper to file a bill in this case for the recovery of the complainant’s demand, I am not prepared to say he had not a right to make the drunkard a party with his committee, so that the former would be bound by the proceedings in case he should be restored to his estate before the termination of the litigation ; although it was not necessary, probably, to make him a party for any other purpose.

I have no doubt, however, that the provision contained in the original order, upon the petition, authorizing the *150filing of a bill, was erroneous 5 on the ground that there was nothing to settle between the parties which rendered the filing of a bill necessary or proper, and that a proceeding by bill, instead of a summary application to compel the committee to comply with the order of the court, must necessarily subject the estate to great and useless expense. After the debt had been liquidated by the order of the court, if the committee neglected to comply with the order to sell the land and pay the amount due, the court, upon a. summary application, should have removed him and appointed another in his place who would discharge his duty. And if he had neglected to pay, after he had sold and obtained funds for that purpose, the creditor should have proceeded by attachment to compel payment by him, instead of subjecting the estate to the extra expense of a bill. If this case therefore depended upon the allegations in the complainant’s bill alone, I am not prepared to say he ought to be paid his costs of such an unnecessary proceeding, out of the estate in the hands of the committee ; though- it might not be right to charge him with the costs of the adverse party, where he has the express permission of the court to proceed by bill in the contingency contemplated. The case, however, does not depend upon questions of this kind, as I am satisfied the decree of the vice chancellor is wrong upon the merits.

The vice chancellor must have founded his decree upon the supposition that the answer, containing the statement of the settlement subsequent to the date of the order, was not responsive to the bill, and that it was not sustained by the proof. But in either view of the case, I think the decision was erroneous. There was, it is true, an evident mistake in the answer, in substituting the word March for December, as the time when the alleged settlement took place. But that it was a mere clerical mistake is evident from the answer itself; as .the written memorandum, which is stated in the answer to have been made at the same time, and which was set out in the answer in full, was dated on the 7th of December, instead of the 7th of March. And *151the money which was paid pursuant to such agreement is, in another part of the answer, stated to have been made previous to the 7th of March. The -mistake as to the month in which the settlement was made, therefore, could not have misled the complainant j neither did it in any manner impair the credit of the answer, so far as the same was responsive to the bill. The complainant charges in express terms that he has caused the taxed bill of costs, and the $293,16, to be demanded of the committee, but that he has wholly refused to pay the same, or any part thereof. And this statement the committee is required to answer upon oath. In his answer to this he “ denies that he has neglected or refused to apply a sufficient part of the avails of the sale to pay and discharge the complainant’s demand, with interest thereon, .and the costs.” But on the contrary he shows, by his answer, that he paid a part of the debt, in the settlement with the complainant, by the relinquishment and discharge -of the rent due and to become due from the latter to the estate ; and that the residue of the debt and costs, with the exception of twenty-one cents, was paid to the complainant’s solicitor within the ninety days prescribed in the order of the vice chancellor. In addition to this he has proved the truth of the allegation contained in this part of the answer, by the testimony of one witness whose character for truth is not impeached in any material respect. I cannot therefore, without coming to the conclusion that both the committee and the witness have been guilty of deliberate perjury, decide that the complainant had any thing due to him at the time of filing this bill, except the twenty-one cents. And it is perfectly clear, upon this answer and testimony, that if this decree in favor of the complainant is permitted to stand, the claim of the estate against him for the rent -of the farm will be forever extinguished.

But it is said that the allegation of the answer and the testimony of the witness as to the settlement and offset of the rent is wholly incredible ; as the complainant could have had no inducement for making such an arrangement. *152The witness, however, gives a very rational solution of that difficulty. The complainant was the tenant of the real estate which the committee was directed to sell for the purpose of paying the debt, and he was anxious to continue the tenancy for another year. He therefore had a sufficient inducement for making this arrangement, to prevent the absolute necessity of a sale. And he had the promise of a lease for another year if the farm was not sold before the first of April; in which case the balance due to him on that settlement was to he applied to the next year’s rent.

The decree appealed from was, therefore, erroneous, and must be reversed with costs. And the hill must be dismissed with costs; hut without prejudice to the right of the complainant to apply to the vice chancellor for the payment of the balance of twenty-one cents, if it is not voluntarily paid to him by the committee,