1 Sand. Ch. 46 | New York Court of Chancery | 1843
It is my present impression, that the case is to be considered as standing upon the original agreement, made by James Underdunck with Miles Smith, for the sale of dll his property in Hancock, for the
Assuming, however, that the heirs of Miles Smith were entitled to compel a specific performance of this agreement, has the complainant any claim for the relief which he seeks by his bill-?
1. As to his title to the 100 acres, part of the tract of 800 acres, the defendant, Catalina U., having admitted the conveyance as set forth in the bill, she can raise no question upon the power of attorney under which Miles C. Smith executed that conveyance. It is otherwise as to the infant—and against him the complainant’s whole case must be proved. The power of attorney recites the names of eight heirs of Miles Smith, one of whom, Digby B. Smith, did not execute
The seisin of the lands in question, was clearly in the defendants in this suit. In equity, it is true, they are deemed to stand seised of it, for the benefit of the heirs of Smith, or in trust for them. (2 Story’s Eq. 98, § 790.) But it seems to be an entire confusion of terms to say, that the beneficiaries of this mere equity, are seised of the land. (See, per Lord Mansfield, in Taylor v. Horde, 1 Burr. 60. 107. Kennedy v. Wood, 20 Wend. 230.) I need not determine whether the attorney’s mode of executing the deed, by signing his name, Miles O. Smith, <c and as attorney for H. Smith, &c.,” naming his constituents, and affixing one seal, made it the deed of the constituents. See Townsend v. Corning, (23 Wend. 435;) Jones’ devisees v. Carter, (4 Hen. & Mun. 184.) On the ground that they were not seised, I am satisfied that the conveyance to the complainant vested in him the equitable interest of Miles O. Smith only.
As against the infant, the complainant, therefore, comes into this court, requiring him to execute a deed to the complainant, for one seventh, (or one eighth, if Digby B. Smith was an heir,) of one hundred acres, parcel of eight hundred acres, which the defendant’s father contracted to Miles Smith, and seeking no relief in respect of the remainder. As against the adult defendant, the case differs only in this, that the complainant shows himself vested with all Miles Smith’s right to the 100 acres.
I am clearly of the opinion, that such a bill cannot be maintained. If the complainant had become the purchaser of the whole 800 acres from the Smiths, and had sought to enforce the contract in question, the heirs of Smith would have been necessary parties. Hooper v. Donnelly, (3 Hen. & Mun. 316.)
I am reluctant to turn out of court a complainant who has any merits, but it is doubtful whether any addition of parties would aid him, were the cause to stand over to enable him to introduce them. In-v. Walford, (4 Russ. 372,) A.
In reference to directing the cause to stand over, in order to bring the heirs of Smith before the court, assuming for the argument, that the suit could then be maintained. The case of Van Epps v. Van Deusen, (4 Paige, 64. 75,) is an authority against retaining the suit. The bill states the contract erroneously, as being for the 100 acres of the complainant, and not for the whole tract of 800 acres. Although it speaks of the tract by its local name, “ the Hathaway lot” yet the lot is described by metes and bounds, and as containing one hundred acres, and the length of the sides given in the description, makes precisely that quantity. The bill, therefore, made the case of a transfer by the vendee, of the whole subject matter to the complainant. A demurrer to the bill, on the ground that Smith’s heirs were not made parties, would not have presented the whole ground of objection on that score. The adult defendant, in her answer, distinctly insists both that the complainant had no right to file the bill, and that Smith’s heirs ought to have been made parties. The complainant ought then to have amended his bill; and considering his omission to amend, when his attention was thus called to the subject, and the very serious doubt whether any addition of defendants will render his suit available, I feel that I should err in the exercise of the discretion, which the court possesses over the subject, if I directed the suit to stand over for that purpose.
The bill must be dismissed with costs, but without prejudice
Also Jervis v. Smith, (1 Hoff. ch. R. 470.)
See Miller v Bear, (3 Paige, 466.)
A bill was subsequently filed by tha heirs of Smith, which came before the court in September, 1844, on a demurrer by Underdunck’s heirs—See post.