42 N.J. Eq. 215 | New York Court of Chancery | 1886
Hagan was the owner of a shore front, a portion of which he leased to Howard, with the right to build a pier thereon, extend
“In case of the destruction of said pier, or failure on the part of the said George W. Howard to keep the said pier in operation, or the abandoning of it, then this lease shall become null and void, cease and determine; otherwise to remain in full force to the'end of said term.”
On the 7th day of September, 1886, the said Howard executed a paper-writing which, after reciting the agreement or,.lease by which he held the land whereon said pier stood, used these words:
“Know all men by these presents, that I, George W. Howard, the above-named lessee, do hereby abandon and yield up the above-described pier to the said John Hagan and his heirs.”
Prior to the execution of the last-named instrument, Hagan recovered a large judgment against Howard, and so also did Gaskill, the defendant. Hagan’s judgment was a general judgment, but Gaskill’s was special, by virtue of the statute respecting mechanics liens. Gaskill advertised the pier for sale, by virtue of his special judgment. The bill was filed to restrain such sale. The bill sets forth many alleged irregularities in the proceedings at law in recovering the judgment upon the lien claim, and also sets forth the abandonment of the pier by Howard, as is expressed in the above quotation. An order to show cause why an injunction should not issue was allowed. Counsel have been fully heard. There never was any doubt in the mind of the court as to its duty to refrain absolutely from interfering with the common law proceedings, so far as any question could possibly arise as to methods or practice, whether regular or irregular, in the prosecution of the suit. The only question worthy of consideration was whether Howard, under the circumstances, could abandon his right to the pier under his lease so as to effectually defeat the lien of the judgment creditor. It is admitted that if such abandonment were effectual, it could be pleaded at law, but it is insisted that if that be so Hagan should be pro
But it is claimed that this contract between Hagan and Howard was purely a personal affair, and that Hagan had a right to abandon the pier at any time, and that upon such abandonment the lease or agreement was terminated, and Hagan as effectually entitled to the absolute and unqualified possession as though the whole term of ten years had expired. This is too broad a view, and I think must be qualified by the observations already made. It seems to me that if valuable legal rights can thus be abandoned, .it would be a hopeless task for creditors to attempt to enforce their just claims, for if I am right in the foregoing remarks, the act of Howard amounts to nothing more than a voluntary conveyance of this property to Hagan. It was done evidently without consideration, and most plainly to prevent Gaskill from enforcing his lien.
But there is another consideration which it is impossible to overcome, that is, the effectual security of the lien itself, from
