9 Paige Ch. 28 | New York Court of Chancery | 1841
Cases seldom occur, even in this court, where such a complication of conflicting rights and entangled equities are presented as in the one which is under consideration upon this appeal. And the difficulty of properly settling and adjusting - them in this suit is considerably increased by the provisions of the revised statutes relative to the proceedings of creditors against heirs and devisees. It is not improbable, therefore, that I may have erred in some of the conclusions at which I have arrived, as to the legal and equitable rights of the parties to this bill; as I think the vice chancellor has done in some of the provisions of the decree which is appealed from.
The case of Jackson v. Hoag, (6 John. Rep. 59,) and of Whitaker v. Young, (2 Cowen's Rep. 569,) have long since settled the point that the statute relative to proceedings against joint debtors, where a part of the defendants only are served with process, is not applicable to suits at law against heirs and devisees who are sued for debts due from the testator or intestate. And according to the decision in the first case, the sheriff’s sale to Adams conveyed no right or interest whatever in the brick house and lot on Green-street, or in the half morgan of land which were devised to the appellant in fee, I am inclined to think, therefore,
Although it is at least doubtful whether any court can relieve against a mistake arising from mere ignorance of law, this court can relieve a party from the consequences of a mistake of fact. And there is room for doubt in this case whether Adams had seen the will of John J. Barhydt, at the time of the sheriff’s sale, so as to be fully cognizant of the fact that the premises which he was purchasing had been devised in fee to that one of the defendants in the suit against whom the judgment, upon its face, was wholly inoperative, on the ground that the writ was returned, as to him, non est inventus. The statute which was then in force, authorizing the supreme court to relieve certain purchasers at sheriffs’ sales who should be afterwards evicted from the lands purchased on account of irregularities in the proceedings, or want of title in the person against whom the execution issued, (1 R. L. of 1813, p. 594, § 11,) does not appear to have contemplated the case of a purchase by a party to the judgment; who is presumed to be cognizant of the proceedings which have been had in the suit. But the principle of that statute was wholly inconsistent with the idea that a sale of land in which the parties to the judgment had no estate or interest whatever, and which had been bid in by the plaintiff in the judgment under a misapprehension of the fact, should in equity be considered as a payment of the judgment, to the extent of such bid. In Lansing v. Quackenbush, (5 Cowen’s Rep. 38,) the supreme court refused to interfere in such a case upon motion; saying that the proper forum to apply to for relief was a court of equity. Subsequent to the commencement of the present suit, however, the supreme court has decided that it will relieve the plaintiff in such cases, on special motion. (See Mulks v. Allen, 12 Wend. 253.)
But if the whole amount of the debt due from the ancestor of the defendants had been paid by the three sons against whom the judgment was recovered, or either of them, the defendant who had thus paid the whole debt would have been entitled to call upon the other heirs at law for contribution, in proportion to the value of the lands which each had received by descent, not exceeding
A similar remark may be made in reference to the objection that the giving of the bond and mortgage by Henry Barhydt, for the whole amount of the debt and costs, was a novation, or extinguishment of the original indebtedness.
As Henry was one of the debtors, who by suffering a general judgment to pass against him without showing the particular property which had come to him by devise or descent had become personally liable for the payment of the whole debt, a payment of the bond and mortgage by Mm would undoubtedly have been a satisfaction of the judgment at law as well as in equity ; so far as the rights of the judgment creditor were concerned. But as Henry stood in the situation of a mere surety for the other heirs and devisees, so far as the property which they had received by descent or devise was bound to contribute for the payment of the debt due to Adams, if he had paid the bond and mortgage in full he would have been entitled to claim contribution, against such heirs and devisees, even at law. And in equity he would have been subrogated to all the rights and remedies of the original creditor against the other heirs and devisees, and the property devised or descended to them, to that extent, as well as against his co-defendants in the judgment who had also become personally liable to the plaintiff in that judgment. (Cuyler v. Ensworth, 6 Paige’s Rep. 32. 1 Story’s Eq. 477, § 499.) This principle of equitable substitution is distinctly recognized and adopted by the legislature in the provisions of the revised statutes relative to contribution between several persons, whose lands are bound by a judgment. (2 R. S. 376, § 72.) As the bond and mortgage in this case were not in fact valid and available securities for the whole amount of the judgment, and Adams took such bond and
In the case of Butts v. Genung, (6 Paige’s Rep. 254,)
In framing these provisions of the revised statutes, the revisers may not have intended to change the form of proceedings in this court against the heirs and devisees. For by referring to their notes, it will be seen that these statutory proceedings, as originally reported, were intended to apply to actions at law, against heirs and devisees. (2 R. S. 2d ed. App. 752.) But when the legislature changed these provisions as reported by the revisers, so as to make them applicable to such suits in this court, and prohibited the bringing of actions at law against heirs and devisees, this court became bound to carry into effect the will of the legislature thus expressed. The proceedings in this court, in such cases, must therefore be in conformity to these statutory regulations; although the effect of the statute, when applied to suits against heirs and devisees in this court, is not only to increase the number of separate suits, but also to make the remedy of the creditor in each suit more complicated and expensive than it would have been under the former practice here.
This, however, is not an ordinary bill to obtain payment of a subsisting legal demand against the estate of the decedent, according to the original rights of the parties as they existed at his death. But the complainant comes into this court for relief upon a state of facts which renders his claim against some of the defendants purely equitable. It would therefore be wrong to compel him to conform strictly to the requirements of these statutory regulations in matters of form merely. It is sufficient if they have been complied with in substance; so far as they are applicable to this case, and may affect the equitable rights of the complainant as against any of the defendants. I shall not, therefore, dismiss the bill, even
It only remains therefore to modify the decree of the vice chancellor, according to my views of what is just and equitable between the parties under the peculiar circumstances of this case. The following must be substituted for the decree of the vice chancellor, which is reversed and modified accordingly, without costs to either party on the appeal:
1st. Declare that the judgment was inoperative and void as against the appellant and his estate; and that the sale and conveyance by the sheriff to Adams of the property devised to the appellant was a nullity, and conveyed no title to the purchaser, and was not, in equity, a satisfaction of any part of the judgment. And decree that the sheriff’s sale and conveyance, and the subsequent deed to Henry Barhydt from Adams and so much of the mortgage as includes those premises, be annulled and set aside.
2d. Declare that by the will of the testator, Henry Barhydt took an estate for life only, under the will, in the pasture lot bought of Maybie ; and that the remainder in fee in that lot, subject to such life estate, descended to him and his other five brothers and sisters in equal shares, as the heirs at law of the testator John J. Barhydt • that the sale of that lot by the sheriff, and the conveyance thereof, was valid and effectual to transfer to the purchaser such life estate, and the interests of Henry, John S. and Jeronimus in the remainder of the fee as such heirs; that such sale was a satisfaction of the judgment upon the bond, to the extent of the bid of $500, less the sheriff’s fees on that sale, from the time when the property was sold and bid off by Henry ; and that the mortgage to Adams is a valid and subsisting security upon the interest in that property thus acquired under the sheriff’s deed, for the amount of the $500 and interest thereon from the time when the property was struck off to the mortgagor by the sheriff. Direct a reference to a master to compute amount due, upon that principle, and decree a sale, in the usual form, of the undi
3d. Declare that the residue of the judgment is a subsisting claim in equity against the lands, or any future, contingent, or reversionary interest in lands, which descended to the children of John J. Barhydt, deceased, as his heirs at Jaw; but that in ascertaining the value of the lands thus descended, and which are liable to contribute for the payment of the balance still due, the three-sixths of the remainder in fee in the pasture lot which were legally transferred to the purchaser under the sheriff’s deed, should not be taken into account; that the lands which thus descended, and which are liable to contribution for the satisfaction of such balance, are the remaining three-sixths of the remainder in fee in the pasture lot which descended to the appellant and his two sisters, the remainder in fee in the lot which by the will was also devised to Henry for life only on the north end of the lot devised to the appellant, and the remainder in fee, after the termination of the life estate of Jeronimus, in the two lots devised to him, in which two lots Jeronimus only took a life estate under the will of his father.
4th. Declare that if the value of the estate so descended to the heirs of the decedent is not sufficient to satisfy the balance due on the judgment, the devisees of the testator are bound to contribute rateably towards the satisfaction of the deficiency in proportion to the value of the lands, or the interests therein, which were devised to them respectively, at the death of their testator; but that the interest of Henry in the pasture lot from the time when the same was sold under the judgment, is not to be taken into the account in ascertaining the interests in the lands devised which are thus liable to contribution. And that the lands
5th. Direct a reference to a master to ascertain the value of the real estate descended to each of the defendants as an heir of John J. Barhydt as aforesaid, or te-the heirs of such heir, and to compute the amount remaining due to the complainant upon his judgment, and to apportion the same and the taxed costs of the complainant, except his costs as to the foreclosure and sale of the mortgaged premises, among the heirs and representatives of heirs according to the value of the lands liable to contribution ; and to ascertain and report whether any and what part or parts of the lands thus liable to contribution had been aliened previous to the commencement of this suit, and by whom. And if the value of the lands of the heirs so liable to contribute is not sufficient to pay the whole amount due upon the judgment, and costs as aforesaid, then the master is to ascertain the value of the lands and interests in lands devised, and ap
6th. Declare that if the lands and interest in lands descended and devised shall not be sufficient to pay the complainant’s debt and costs, or if the complainant shall not he able to obtain satisfaction of any part of such debt and costs in consequence of the insolvency or otherwise of any defendant or other person who was bound to contribute, and who had rendered himself personally liable by the alienation of his estate, or otherwise, then the defendants John S. Barhydt and Jeronimus Barhydt, who are personally liable to the complainant for the payment of the whole of the balance due on the judgment, must make good the loss.
Lastly. Decree that upon the confirmation of the master’s report, the complainants have execution for the amounts due from the defendants respectively for debt and costs apportioned against them; such execution to be special against the lands descended or devised, as to the defendants who have not become personally liable by the alienation of the lands descended or devised. But as to the defendants John S. Barhydt and Jeronimus Barhydt, who are personally liable in consequence of the recovery of the judgment, and as to any other defendant who shall appear by the master’s report to have rendered himself personally liable by the alienation of the lands descended or devised, the execution may be general, or both general and special. The complainant must pay the costs of the guardian ad litem, for his services as such guardian for the infants during their minority, but not afterwards; and the amount to be thus paid may be taxed with the complainant’s costs. The heirs at law of Henry are not however to be made personally liable beyond the amount or value of the lands descended to them from him.