6 Wend. 63 | Court for the Trial of Impeachments and Correction of Errors | 1830
The following opinion was delivered,
The decree of Chancellor Sanford necessarily involves or presupposes the following propositions: 1. That Henry I. Van Rensselaer and John Livingston were co-sureties for William Y. Burroughs,
As to the amount paid by Van Rensselaer to Brockholst Livingston,, there is no dispute. It was a mere matter of computation, and is slated by the master to have amounted, with interest up to the 15th day of August, 1809, to $>8027, 75. That date was assumed by the master as the proper lime to strike the balance, because it was the day on which the premises covered by the mortgage of Martin Kellogg were sold, and purchased in, by or on behalf of Van Rensselaer. The master considered Van Rensselaer as having acquired the legal title to the premises by that sale, and as being justly chargeable with the fair cash value on that day. The report of the master was excepted to substantially upon the three following grounds : 1. Because Van Rensselaer was charged with the value of the mortgaged lands, on the 15th July, 1809, the day of the mortgage sale, by virtue of which the legal title, according to the report, became vested in him ; whereas he should have been charged with whatever sums they produced in the subsequent sale or disposition made of them by him or by Jacob or Jeremiah Van Rensselaer, who it is alleged were his agents, and acted for him ; 2.
It cannot be pretended that there was any express trust between Henry Van Rensselaer and John Livingston ; that is, that there was any understanding that Van Rensselaer should take an assignment of the mortgage and foreclose it, and purchase in the mortgaged premises, to be subsequently disposed of for their mutual benefit. Livingston utterly refused to advance any money, or to enter into any arrangement upon the subject, and left Van Rensselaer to pay the debt and to reimburse himself as he best could. It was a fair public sale, conducted in the usual manner, and if the premises had been purchased by a stranger, he would undoubtedly have acquired a clear and absolute title in his own right. Van Rensselaer had a right to become a purchaser. He had been compelled to pay the debt for which this mortgage was given as collateral security, and having paid the debt, he was entitled to the security. He bad a personal interest in it, which put
The commission of 5 per cent, and $50 for the expense of foreclosing the mortgage were properly allowed by the master. They were objected to principally, as I understand, on the ground that they were not within the order of reference, and not on the ground that the allowance was not equitable and proper in itself. The order directed the master to state such account as he should think proper to shew the true sum with which Henry I. Van Rensselaer ought to be charged by reason of the bond and mortgage. In such an account, the expenses incurred in perfecting his title to the mortgaged premises, and the probable delay or loss in converting them into money, would be necessary ingredients. The allowance was clearly within the scope of the order, and was in itself reasonable and proper.
The objection to the admission of the depositions of Jacob Van Rensselaer is also unfounded. He had no interest in the event of this cause at the time when it was commenced, in 1816, nor until the spring of 1822. His examination in chief was in August, 1817, and his subsequently acquired interest could not affect the competency of those depositions. He was however examined, upon the reference before the master in August, 1826, after his interest accrued; but it was merely for the purpose of correcting his depositions upon a point which obviously had no influence upon the report of the master or the subsequent decree. The competency of the witness does not appear to have been questioned be
The only remaining question is whether the relief, given is compatible with the pleadings and issues in the cause. The decree proceeds upon the ground that Livingston and Van Rensselaer was both sureties for Burroughs' in the bond given to Brockholst Livingston. The bill, it is said, alleges that the debt to Brockholst Livingston was the joint debt of Burroughs and John Livingston, and that the complainant Van Rensselaer united in the bond as their surety only, while the answer asserts that it was the debt of Van Rensselaer and Burroughs, and that Livingston was surety for them both. It will be recollected that the bill was filed by the administrators of Van Rensselaer after his death, and that it sought discovery as well as relief. The position which is so often found in the books, that the plaintiff must have his decree according to the form of his bill, does not mean that he can have no decree unless he makes out in proof the precise case stated in his bill, but merely that the relief given must be within its general scope and equity. It very seldom occurs that either party is entirely right or entirely wrong in his claims or pretensions. The great business of a court of equity is to weigh these conflicting claims, to ascertain from the pleadings and the proofs what are the substantial rights of the parties, and to decree accordingly. A complainant files his bill for an account in relation to various transactions, claiming a large balance; the proofs sustain his claim only in part; he is entitled to a decree for that amount. The principle in equity must be substantially the same as at law; the issue may be more or less general and comprehensive; the proof must be confined to the issue, and the recovery may be of the whole or a part of any demand embraced within the issue, according to the evidence. Here the complainants, when they filed their bill, supposed that the debt which their intestate had paid to Brockholst Livingston was the joint debt of Burroughs and John Livingston the defendant,
My opinion therefore is that the decree of the chancellor should be affirmed.
In which opinion Chief Justice Savage and Mr. Justice Makcy and eighteen senators concurred. Two senators dissented ; they being of opinion that the decree of the chancellor ought to be reversed.
Whereupon the decree of the chancellor was affirmed, with costs,