In re Hemiup

| New York Court of Chancery | Dec 7, 1830

The Chancellor.

The heirs at law who come here to oppose this application are now parties to a suit or proceeding before the court; and as such parties they may be compelled by an order of the court to do, or to refrain from doing any thing which is necessary to enable the chancellor to exercise the jurisdiction and give such relief to the petitioner as was contemplated by the statute. It would be a matter Of course, on a bill filed, to enjoin the heirs at law from proceeding in the ejectment suit until the question could be disposed of on this application. The relief asked for here would be in a great measure useless if the heirs were permitted to go on with their suit at law and obtain possession of the property, and collect their costs and the mesne profits, while these proceedings were delayed by a protracted examination of the merits, or by an appeal to the court for the correction of errors from the decision of the chancellor.

The provision of the revised statutes, (2 R. S. 179, § 71,) which prohibits the issuing of an injunction until the bill is filed, is to.be construed in connection with the section, immediately preceding, relative to the subpoena. Those provisions relate only to cases where the court obtains jurisdiction of the cause by a proceeding by bill ; and where, by the English practice, the plaintiff was in some cases permitted to take out and serve a subpoena and injunction before his bill was actually filed. (1 Grant. Ch. Prac. 18.) It is a mere extension of the 22d section of the statute 4 Anne, ch. 16, which contained an exception in favor of injunction bills. There is a variety of cases in which this court enforces its orders and decrees by injunction, where the proceeding is founded on a petition only, and without any bill filed. The filing of the petition in these cases, which is a substitute for a bill, is a substantial compliance with the requirement of the statute. In this case the notice which is required to be served on the heirs at law, or to be published if they are absentees, is a substitute for the subpoena, and gives the court jurisdiction over their persons, so far as is necessary to compel obedience to any order properly made in relation to the subject of this proceeding.

Wherever this court has power to make an order in consequence of having jurisdiction over the subject matter of the suit or proceeding, and which a person is bound to obey in consequence of his being either actually or constructively a party to the suit, it may enforce obedience to such order by the process of injunction, under the seal of the court ; which is the usual way of giving notice of its orders and decrees to-those who are not actually or constructively present in court. Thus in the case of Creagh, a lunatic, whose property was under the control of the court, in the hands of a committee, an injunction, founded on a petition merely, was' issued, to restrain the tenant of the estate from committing waste there-on. (1 Ball & Beat. 108.) And in Casamajor v. Strode, (I Sim. & Stu. 381,) where a person, not a party to the suit, had becom e a purchaser under the decree, the court decided that' he had thereby submitted himself to its jurisdiction, as to all matters relating to him in that character, and might by order be compelled to pay the purchase money. He was therefore enjoined from committing waste on the property sold until the purchase money was paid. It is also the ordinary practice of the court, where it has made a decree for an account and1 distribution of the fund in the hands of executors and trustees, to restrain legatees and creditors, not parties.to the suit, - Irom proceeding at law against the executors or trustees , whether such. creditors or legatees have come in and proved their debts under the decree or otherwise. And this is com sfantl-y done by petition in the original suit, and without the expense of a new bill against the parties enjo.itied. • (Beauchamp v. The Marquis of Huntley, Jacob’s Rep. 546. Farlon v. Wilson) 11 Price’s Rep. 95. Eden on Inj. 25.) . go also in proceedings before- the, English, chancellor in bankruptcy, which is not strictly a proceeding in the court of chancery, it. is his constant practice-|o exercise the power of making ■ orders affecting -the rights of persons who' are actually or constructively parties to the proceedings and to enforce obedience to such orders by process of injunction, under th e great seal, or by commitment. (Ex parte Hardenburgh, 1 Rose’s Rep. 204. Ex parte Pease, id. 232. Ex parte Figes, 1 Glyn & Jam. 122. Ex parte Gould, id. 231.; Ex parte Hawkins, 1 Mont. & M’Arth. 115.)

■ In the case now before me the court has jurisdiction over the.parties who have appeared to oppose this application. It will be. necessary to direct a reference to a master, so as to give, both parties an Opportunity to examine witnesses, as to the bona tides of the sale, who may be unwilling to make af- ■ fidavits of the facts., / The ends of justice therefore require a temporary stay of the. proceedings at law until- this court can dispose of the question now pending before it, and an ■ injunction must issue accordingly ; unless the plaintiffs in the suit at law will stipulate on the trial to waive the objection that no discreet person was joined, with the. administratrix. in the sale and conveyance. , , ,

The other objections to the regularity of the proceedings such as the neglect of the surrogate to appoint guardians for the infant, children, and the question whether he could au- ’ thorize.the administratrix to decide that apart of the lot could not be' sold without ■ prejudice, to. the heirs, or whether he should have examined, ánd adjudicated, upon that point-himselfe before the order of sale was made, must be left open for the decision of the court of law.. If these are' defects which render the title acquired under the sale invalid at law, they cannot be cured by the chancellor on this petition. And the purchaser must seek his remedy against the administratrix and her husband, on the covenants in the deed ; or if he has any equity as against the heirs at law, on the ground that they have been actually benefitted by the proceeds of the sale, he must seek his relief by bill against them, in the usual manner.