2 Johns. Ch. 441 | New York Court of Chancery | 1817
The question is, whether the executors of Lylburn are to be held accountable to the cestui que trusts (in whose behalf Murray, as receiver, instituted the su^) f°r the bond and mortgage, in like manner as Winter may be, or would have been, had he not assigned them.
The case states, that the bill has been taken pro confesso against Sprague, the purchaser, and against Davis, who holds under him. It also states, that Davis is in possession,
[ * 443 ]
The cestui’que trusts are not entitled to the land, and also to the purchase money. The two claims, as I observed in the analogous case of Murray v. Ballou and Hunt, (1 Johns. Ch. Rep. 581.) are inconsistent with each other. The one sets aside,find the other affirms the sale. If the cestui que trusts choose to disregard the alienation made by the trustee, pending the suit against him, (as they may do, according to the settled doctrines of the Court,) then they have nothing to do with these securities, but are to look solely to the land, taking no notice of the alienation by Winter. They ought to be put to their election. I am inclined to think they may, if they please, affirm the sale, *and look to these securities; and if they do, then the bill, as against Sprague and Davis, ought to be dismissed.
[ * 445 ]
[ * 446 ]
I shall, accordingly, decree, that the plaintiffs, by their solicitor, signify, by an election in .writing, signed by such *solicitor, and filed in the register’s office, their determination whether to proceed against the defendants Sprague . and Davis for the land, or against the defendants Lylburn and Isham for the bond and mortgage mentioned in the pleadings. 1 That if such election be to proceed against the defendants Sprague and Davis, then the bill, as against the defendants Lylburn and Isham shall, from the time of filing such writing, stand dismissed; and the defendants S. and D. shall, within thirty days, convey the lot in the pleadings mentioned to the present trustees, &c., and pay the costs of the suit against them; but that if such election be to proceed against the defendants Lylburn and Isham, then the bill, as against the defendants Sprague and Davis, shall, from the time of filing such writing, stand dismissed, and the said defendants Lylburn and Isham shall, within thirty days from the service of a copy of this decree, and of such election, at their own expense, reassign and deliver to the said solicitor, or his order, for the use of the cestui que trusts, for whose benefit this suit Was instituted, the said bond and
[ * 447 ]
As to the question of costs, I have not charged the executors with costs, because there is no evidence that their testator purchased the securities under any other than construetive notice of the suit against Winter; and actual notice is denied. The case, therefore, falls within the decision in Murray v. Ballou. But Sprague and Davis are *made chargeable, in one event, with costs, because they are charged with notice, in fact, of the suit and injunction, and they have admitted it, by suffering the bill to be taken pro confesso. And in the cases in which the bill is to be dismissed, there having existed a just cause of suit, which is lost only in consequence of an election, or a default founded upon the direction in the decree, the defendants, even then, will have no equity to entitle them to the costs of the suit, and the dismissal is to them a favor.
Decree accordingly.
N. B. In the suit by the same plaintiffs against Lylburn, isham and Shepherd, a similar decree was entered, except in regard to Shepherd, who, not being charged with actual notice of the pendency of the suit against Winter, was not decreed to pay costs.
In the suit, also, by the same plaintiffs, against Hardenbrook and Roma, on a similar case, there was the like decree as to Hardenbrook, the assignee; but as to the defendant Roma, who purchased before the suit brought against Winter, the chancellor held that his title was not affected by it, and dismissed the bill as to him, unconditionally, and with costs.