4 Johns. Ch. 294 | New York Court of Chancery | 1820
The prayer of the bill is for discovery, and for relief consequent upon that discovery.
The bill states, that Robert Livingston, jun., proprietor of the manor of Livingston, conveyed about 500 acres of land in the manor, to the defendant Henry Livingston, by deed, on the 10th of September, 1773, and that he reserved an annual rent of ll. 10s. to him and his heirs, which
The only fact alleged, as a reason for coming into this Court, is, that the plaintiffs are not in possession of thecounterpart of the original deed, and have no knowledge of it. It is stated, that no rent has ever been paid since the date of the grant, but it is not alleged, that any has ever been demanded. The defendant, H. L., demurs generally to the whole bill, and assigns, among other reasons, that the bill has no equity to entitle the plaintiffs to discovery or re-. lief, and he relies upon time as a bar to the claim.
. The rule with us, as settled in the Court of Appeals, .(Laight v. Morgan, .1 Johns. Ch. Cas. 429.) is, that if a bill for discovery and relief be good for discovery, a general demurrer to the whole bill is bad. The English rule introduced by Lord Thurlow, is contrary to the ancient practice which we have followed. It is held, in England, that upon a bill for discovery and relief, if the plaintiff be not entitled to relief, he is not entitled to discovery, and' a general demurrer to the whole bill will lie where the -plaintiff, though entitled to the discovery, is not entitled to the relief. (17 Ves. 216. 2 Ves. Beam. 238. 1 Swans- ■ ton, 299. 9 Ees. 75.) There may be something said on . each side of this point of practice, but we must follow the ancient rule as adopted here; and we have no reason to be ashamed of the old rule, when we have such a sanction to ■ it as the opinion of Lord Ch. B. Comyns, (Corn. Rep. 667, 663.) that “ it would be unreasonable to refuse the aid a party is in conscience entitled to, because he asks something
If relief be sought, as well as discovery, founded upon the fact of a lost deed, an affidavit of the loss ought to have been made. (Laight v. Morgan, 1 Johns. Cas. 479.)
In Collet v. Jaques, (1 Cases in Chancery, 120.) the bill was for arrears of rent, on the suggestion, that the deeds by which the rent was created were lost, and there was proof of the constant payment of it till the last twelve years. The Master of the Rolls decreed payment of the arrears and growing rent. But in Palmer v. Whettenhal, (1 Cases in Chancery, 184.) a different decree was made, under circumstances very analagous to the present case. The plaintiff, as heir to his brother, claimed a rent of seven pounds per annum, and it was averred to have been paid by the owner of the land until within thirty years, and that the land charged with the rent had passed through several persons, and came to the defendant, and the bill prayed, that the rent and arrears might be decreed to be paid. The defendant demurred, and alleged, that he, and those under whom he claimed, had enjoyed the land for thirty years, without any demand of rent, and that being so long unpaid, it was presumed to be extinguished. On debate, the demurrer was allowed by Sir Orlando Bridgman, the Lord Keeper. Again, in Boteler v. Massey, (Rep. Temp. Finch, 241.) the Court supported a claim for a dormant rent, on a bill founded on the loss of the counterpart of the deed, and so far the case resembles the one before me. But in that case the rent had been paid for many years, and until within twenty-three years of the time of pronouncing the decree.
The case of Collins v. Goodall, (2 Vern. 235.) is too brief to give much light on the subject. The bill was to be relieved touching a rent charged upon lands, and the defendant pleaded the statute of limitations, and that there had
- Upon the application of the doctrine contained in some of these decisions, to the present case, I am disposed to reject this bill. Here has been no rent paid or demanded, for forty-four years before the filing of the bill; and this case is to be distinguished from all the others, in this peculiar cir-' cumstance, that no rent has ever been paid or demanded from the beginning. The presumption is very strong of an .extinguishment of the rent, by some grant or conveyance. The original grantor lived seventeen years after the execution of the deed, and no rent was demanded or paid. His son lived four years after his father’s death, and the same silence was preserved; and his grandson, who was entitled to the rent, if any existed, lived twenty years after he became so entitled, and there was no demand or payment. At this late day, the representatives of the grandson call on this Gourt to help them to recover this rent, on the. ground, that they can find no counterpart of the deed. The presumption is, that it has been surrendered or cancelled, and the rent extinguish
The difference between this case and the one decided yesterday, is very material. Here is a demurrer to the whole bill, and the great lapse of time taken as one ground in support of it, whereas, in the other case, the defendant, by his answer, admitted the covenants to pay, and put his defence on counter claims. Here is, also, a lapse of forty four years, and there were only twenty or twenty-two years ■ in the other case. Again, the claim here has passed through successive generations, and neither the grandfather, father, or son, as they were successively entitled, ever applied for rent, but in the other case the covenants to pay rent were with the plaintiffs’ testator. There is no case that would warrant a denial of assistance, under the circumstances disclosed in the former case, but several that would require it; whereas here we have, at least, one case sufficiently in point, ’ and none that have sustained a bill under such strong presumptions against it.
I shall, accordingly, decree that the bill, as to the defendant, Henry Livingston, be dismissed, without costs.
Decree accordingly.
