3 Paige Ch. 470 | New York Court of Chancery | 1831
No regular appeal having been entered from the order overruling the demurrer, within the time allowed by law for appealing from an interlocutory order, that decision of the vice chancellor cannot be reversed on this appeal from the final decree. That order must therefore remain in full force; and the complainant is entitled to his costs of the argument of the demurrer, whatever may be the final result of the appeal as to the merits of the cause. But if there is no equity in the complainant’s bill, nor any thing which could entitle him to any kind of relief, this decree cannot be sustained.
As the defendant acquired no title or interest whatever in the idiot’s share of the real estate in this case, the agreement on his part to support the idiot was wholly without consideration, and void. It cannot therefore be enforced, either at law or in equity. But as he has had the use of the idiot’s interest in the one sixth of the whole lot, he is answerable for one third of the rents and profits of the west half, of w'hich he has been in possession, as an off set against his claim for the maintenance of the idiot in the mean time. The decree of the vice chancellor is manifestly wrong, inasmuch as it. compels the defendant to indemnify the complainant against any order or decree which may be made for the sale of the estate of the infant, and also against all costs. The case made by the bill, although it shows that one third of the west half of the lot should in an equitable partition be appropriated as the share of the infant in the whole estate, forms no foundation for a claim against the defendant personally for an indemnity ; particularly as to the costs which must necessarily arise on a partition of the estate. As both parties were under a mistake in supposing that they could make a valid division of the estate so as to give the idiot’s share to the defendant as an equivalent for her support, there can be no good
The decree of the vice chancellor must be reversed: And as it appears to be impossible to make any decree on the bill as it now stands, the case must be remitted to the vice chancellor, with directions to permit the complainant to dismiss his bill without costs and without prejudice to his right to file a new bill against the defendant and the idiot for an equitable partition of the lot between the parties according to their respective rights; or to permit him to apply for leave to amend the present bill, at any time within three months, as he may be advised. Neither party is to have costs on this appeal. And as the defendant will have an opportuuity to make a defence to the bill if it is amended, the amendment, if granted, is to be without costs to either party.