2 Johns. Ch. 242 | New York Court of Chancery | 1816
[ * 245 ]
Several objections are taken on the part the defendants to the regularity of the proceedings.
1. The lunatic himself is not made a party defendant.
[ * 247 ]
Until the statute of 43 Geo. III., there was no special authority given to the Court, or to the committee of the lunatic, in England, to sell or mortgage his real estate for the payment of his debts. The Court did not conceive it to be any part of its duty, or that it had the power. (2 Vesey, jun. 73. 74. 14 Vesey, 182. 8 Vesey 79.) The English cases are not, therefore, quite applicable on this point. The custody of the lunatic is committed, in England, not to the Court of Chancery, but to an individual selected by the crown, who is generally, though not always, the person who has the custody of the great seal. (3 Atk. 635. Dickens, 553.) But here the charge of the person and estate of the lunatic, and' his maintenance, is expressly committed to the chancellor; (N. R. Laws, vol. 1. 147.) and the duty of providing for the payment of the debts is specially enjoined. For this purpose, the committee is to exhibit, under oath, within six months from his appointment, an inventory of the estate, debts, and credits of the lunatic; and when the personal estate shall be insufficient for the discharge of the debts, he is to present a petition to the chancellor, setting forth the particulars and amount of the estate and debts. If the personal estate shall appear to be insufficient, it is made the duty of the chancellor to cause so much of the real estate to be sold as shall be necessary for the discharge of the debts. These provisions render the payment of the debts out of the lunatic’s estate no longer a matter of discretion, but of indispensable duty; and they contemplate the committee as being charged, (though, undoubtedly, under the control and direction of this Court,) with a trust to be performed for the benefit of creditors, and an agency in the payment of the debts and the administration of the estate. To what extent *these new duties of the committee may necessarily lead, I need not now examine, nor am I altogether prepared to say. The view of the subject under our statute is, certainly, greatly varied from that under the English law ; and I entertain no doubt that the committee may be called upon in this Court by the creditors for the payment of their debts, without making the lunatic a party.
This question of necessary parties is always more or less
2. Another objection is, that the appearance of the defondants in pursuance of the subpoena was in a suit of the plaintiffs against them individually, and not in their official capacity as committee; and that, as all the subsequent proceedings of the plaintiffs were against them as a committee, no notice was taken of them, as if the proceedings were not in the suit' to which they had appeared.
[ * 248 ]
I apprehend that the defendants are too late with this objection, whatever consideration might have been due to it, if it had been made on the return of the subpoena, and the entry of the appearance. There was no bill filed by the plaintiffs, but the one in the suit against the defendants, as committee, in which the existence and history of the debt against the lunatic, and of their neglect or refusal to pay it, after admission of its being due, is particularly set forth. A copy of this bill was taken by the solicitor for the defendants, before their appearance. If the subpoena was not properly filled up, according to the prayer in the bill, and they were not properly entitled by their addition, why was not the objection made in season ? They were informed of the contents of the bill. I shall *consider the process and appearance as sufficiently applicable to that bill, and the defendants shall not now be permitted to deny it. It is not to be tolerated in this Court, which is governed by substance, and not by forms, that the party, after taking a copy of the bill on which the subpoena had issued, and in which he was properly entitled, and entering his appearance without his addition as committee, shall lie by silently, and suffer the complainant to go on, unsuspectingly, step by step, down to a final decree, on the ground of a valid appearance, and then start up with the objection that he had never appeared in that suit. I can only say, that such a course of practice will never answer any purpose here.
3. Another objection is, that the defendants having entered their appearance on the 18th of July, 1815, they were entitled to the service of a special rule to answer, before the bill could be taken against them pro confesso.
4. The last objection is, that by an order of the 19th of September last, the master’s report was to stand confirmed, unless cause was shown to the contrary in eight days, and
The answer to this is, that the setting down the cause within the eight days, for a day subsequent to the expiration of them, way a preliminary measure, which did not prevent the defendants, if they had so been inclined, from showing cause against the report within the eight days, or afterwards, when the cause was to be brought on to a hearing on the report of the 30th of September. They never availed themselves of any opportunity of showing cause, either within the eight days, or afterwards at the term, but evidently and intentionally waived it. They have sustained no prejudice by this proceeding. They do not pretend to any. The report was not confirmed until the 30th of October. The objection applies only to a point of formal and regular practice; and if it was, in itself, well founded, the defendants have justly lost the benefit of it by not making it in season.
5. But there are objections to the form of the decree, as it now stands, which appear to me to be well founded.
[ * 251 ]
The bill charges, and the master reports, and the defendants, by suffering the bill to be taken pro confesso, admit, that there is no personal estate of any consequence, it being insufficient to pay any material part of the debt. It would, however, have been more regular to have caused the defendants, by citation, or otherwise, to have filed their inventory as the statute enjoins, and to have stated, by petition, the particulars and amount of the estate and debts, to have enabled me to judge, in the first instance, of the situation of the estate. But, notwithstanding the defendants may have omitted their duty, yet I apprehend that the real estate can be sold, if the insufficiency of the personal estate is made out to my satisfaction, by the same proof, in substance, as it is, in this case, by the charge in the bill, *the order for taking it pro confesso, the report of the master, and the petition of the defendants.
The decretal order is, however, defective in this respect, that it directs the real estate to be sold by the master, whereas the statute evidently contemplates that the committee shall be a party to the sale and conveyance, after a report of the sale shall, previously to the execution of the deed, have been made and confirmed. A master, or other person, may, however, be joined with the committee in conducting the sale and executing the deed, and the time and manner are subject to my direction.
I shall, accordingly, set aside the decretal order of the 30th of October last, with liberty to the plaintiffs to set down the cause again for hearing at the next term, to the end that
Order accordingly.