Payne v. Atterbury

1 Harr. Ch. 414 | New York Court of Chancery | 1841

The Chancellor.

From the case presented the complainant has made out a legal title to the property in question. In the case of Still-well vs. Williams, 6 Madd., R. 39, it is said “that where from the answer itself there is a strong presumption against the defendant’s title which is impeached by the bill, the court will grant a receiver.” The answer of the defendant in this case shows or raises a strong presumption of title in the complainant. It admits the deed to Crooke — the deed from Crooke to the complainant, and it states no facts which invalidate it. It denies generally its validity, but that is swearing to a conclusion which the defendant’s own deed denies. He should state the facts which make the deed invalid, that the court may pass upon them, and not having done this, his deed must be held to bind him. The evidence in the case raises a strong presumption that the defendant' in attempting to evade the payment of his debts was so far guilty of a fraud, as that he could be estopped from setting up the facts upon which he relies even as against Crooke himself. Indeed, from the testimony of Thomas Constantine and John S. Chipman, it is apparent that this must be so. And if this shall prove to be the conlingency referred to in the answer, it would constitute no defence either in law or equity. He should have shown in what his equity consists, for as a question of law he is estopped from denying his own deed. A receiver will be appointed in behalf of a vendor as against a vendee who has obtained possession and refuses to pay the purchase money.

It .is held in 15 Vesey, 344, that a vendee, who has paid the purchase money prematurely, has a lien as against the vendor analagous to that of a vendor in the opposite case. The defendant as the case is presented is holding over as against his own deed, and is not responsible for mesne profits or permissive waste. The amount of incumbrances including the drafts paid by the complainant amounts with interest and costs to about the sum of sixteen thousand dollars ; this, from the testimony, must be the full value of the properperty or more. -It also appears that the property could and should he made productive, and that it should yield sufficient to keep down the accruing interest on the incumbrances.. But instead of that, that nothing whatever is paid on the outstanding mortgages, some of which are in process of -foreclosure, and which the complainant must extinguish in order to protect himself; that a property which should produce some $2,500 per annum, is actually not doing more than about one-tenth of the business of which it is capable.

The evidence in regard to the danger of the property is contradictory, but the weight of evidence is that the mill is badly managed and the dam in a hazardous condition. The facts show bad management, a depreciation in the value ot the property, and a total neglect of duty or inability to perform iton the part of the defendant. The case "under all its circumstances is one pressing itself very strongly upon •the discretion of the court. There is a large amount of interest constantly accruing on the outstanding incumbrances, all of which must fall on the complainant-. This Valuable property which, under ordinary management should produce sufficient to keep down the incumbrances, is actually paying nothing upon them, but the interest is suffered to accumulate, and the defendant is irresponsible. If this mo-tion is refused the complainant is subjected to almost irreparable, in•evitalbe injury, for which he has do redress. No rule is better settled than that the complainant is entitled to the rents and profits from the time his title accrued. Lord Hardwicke in Dormer vs. Fortescue 3 Atk. R., 128, observes: “Nothing can be clearer both in law and equity and from Natural justice than that the plaintiff is entitled to the rent.s and profits from the time his title accrued.” Green vs Biddle 8 Wheat., 1, The case is still stronger where there are large outstanding incumbrances, and no part of the rents and profits are applied to keeping down the interest, and the defendant totally irres ponsible.

The answer of the defendant is in, testimony has been taken ;— from the answer and testimony it results that there is imminent danger that the complainant must lose the intermediate rents and profits unless the motion be granted ; that the interest is permitted to accumulate on this large amount of incumbrances, and that the property is not made productive, and a portion ispurmitfed to go to entirely to waste, and the weight of evidence is that it is in danger of destruction.

Under this state of facts the court cannot be satisfied that its duty is performed without the appointmet of a receiver.

Order accordingly.