King v. Wilson

54 N.J. Eq. 247 | New York Court of Chancery | 1896

Pitney, V. C.

The defendant was permitted on the hearing of the petition to prove any facts which tended to show that he had any defence to the complainant’s equity against him set out in his bill, or any ground to vary the decree which had been made. In this he failed.

By the fifty-third section of the Attachment act (Rev. 1877 p. 51) the complainant’s title relates back to the date of the issuing of the attachment, and that date in this case was, confessedly, anterior to the date of the lease. This was conceded by defendant’s counsel. He put himself upon the ground that his client was an ignorant Italian, who imperfectly understood the English language; that he was not aware of the effect of the sale under the attachment, and that the complainant had ratified the lease by accepting rent under it, and had encouraged the defendant in clearing and planting the land.

On these issues of fact the defendant fails. It was abundantly proved that it was thoroughly explained to him at the time of the auditor’s sale that the title under it would be paramount to his lease, and that he was advised to bid, and did bid nearly to the amount at which the property was struck off to the complainant. Then the complainant thoroughly explained to him that he would not in any manner recoguize the lease, and carefully protested on the occasion of each payment by giving him a receipt for use and occupation only.

Complainant waited three or four years before filing his bill for partition in the hope that negotiations for a sale of his interest to the defendant Capella would result in such sale.

The defendant further set up that complainant acquiesced in the improvements made by Capella after the sale. This is also thoroughly denied by the complainant, and he swears, and I believe him, that he protested against those improvements, and warned Capella that he was liable to lose them. Defendant’s counsel again set up that his client did not understand the partition proceedings. Here, again, the facts are against him. They were fully explained to him by the complainant, and his conduct pending the proceedings is consistent with his fully understanding them.

I can find nothing in the case which would warrant the court in opening the decree and allowing the defendant to come in and defend.

The next question is as to the remedy by injunction.

The law on the subject of the power of the court to execute a decree of this kind was thoroughly examined and established by Chancellor Green in the case of Schenck v. Conover, 2 Beas. 220, and the practice established by that case of a writ of assistance issued to the sheriff to put in possession the purchaser at sheriff’s sale of mortgaged premises. The reason which furnishes the basis of the authorities cited by Chancellor Green in Schenck v. Conover, is not confined to the cases of purchasers at a sale under foreclosure, but includes all cases in this court where the right to the possession of land is involved and directly dealt with. In fact, it applies with more force to such cases than to one where a stranger purchases land at a sale by virtue of a decree of this court; because, in the latter case, the decree does not, in direct terms, declare that any person is entitled to the possession of the land, but only directs it to be sold and that a good title shall pass thereby. It was, at one time, seriously questioned whether or not it could be said to be the duty of the court in executing its decree of sale to put the purchaser in possession. But in a case of partition, where the possession is distinctly decreed to each of the parties, the case is quite different.

I do not find among the authorities any case of partition where the principle has been applied. But it appears to have been assumed by Lord Hardwicke, in Roberdeau v. Rous, 1 Atk. 543, that it did apply in partition. In Huguenin v. Baseley, 14 Ves. 273, the court set aside a conveyance of land, at the instance of the grantor, on the ground of fraud; ¿nd, subsequently, in the same case (15 Ves. 180) enforced the decree by injunction for possession. And the same remedy was applied in Devaucene v. Devaucene, 1 Edw. Ch. 272.

Our .statute (Rev. 1877 p. 115 § 61¿) declares that after a decree

“it shall be lawful for the court * * * to cause, by injunction, the possession of the estate * * * whereof the possession * * * is decreed, to be delivered to the complainant or otherwise, according to such decree and as the nature of the case may require.”

This language covers the case in hand.

It is not necessary here to resort to the writ of assistance, since the' land consists of open fields and woods, and is incapable of more than formal delivery and possession.

An injunction to prevent defendant from interfering with complainant’s possession is all that is necessary, in the first instance, at least. See Stribley v. Hawkie, 3 Atk. 275. Moreover, an injunction here is the more efficient remedy, since the weight-of the evidence is that'the damage which will result from defendant’s interference will be serious and not easily computed, and the defendant is of doubtful pecuniary responsibility.

I will advise an order that the defendant be restrained from entering upoii any part of the premises set- off to the complainant, or molesting him in any way in the possession and' enjoyment thereof.