Murray v. Finster

2 Johns. Ch. 155 | New York Court of Chancery | 1816

The Chancellor.

£ * jgg j

Neither the plea nor answer deny notice of the pendency of the suit, and of the claim of Mrs. Green, prior to the payment to Winter of the purchase money. The denial of notice was essential to the validity of the defence. (1 Johns. Ch. Rep. 302.575.) But here is positive proof of notice prior to the payment of the money. The money was paid in 1812, and the defendant was duly warned long before. I have considered Henry Green as a competent witness. He has no direct or certain interest in the suit. The estate is in his mother, and under her control, and subject to her disposition, in respect to her children. The fact of notice prior to the payment of the purchase money being clearly established, the defendant paid the money to Winter in his own wrong. It was in fraud of the rights of *the cestui que trusts, and destroys the goodness of his defence. (1 Johns. Ch. Rep. 301. and the cases there cited.)

May 6th.

I shall, accordingly, decree, that the defendant, within 40 days from the service of a copy of this decree, pay to the solicitor, for the plaintiffs, or bring into Cpurt, the sum of 703 dollars, with interest from the 29th of July, 1809, unless he shall, within that time, elect to convey in fee the premises in the pleadings mentioned, to Mary Green and Henry Green, to be held by them in trust; and that in either case he pay the costs of this suit, ^(a)

(a) See Green v. Winter, vol. 1. p. 26—44. 60.