3 N.J. Eq. 397 | New York Court of Chancery | 1836
The matter in controversy in this suit, is twenty-four hundred dollars and interest, which became payable after the death of Sarah Vandoren, the widow of Joseph Vandoren, of the county of Somerset, who died intestate in the year of our Lord eighteen hundred and one, leaving several sons and daughters his heirs at law. In M.arcb, in the year of our Lord eighteen hundred and fourteen, after the youngest child arrived at full age, the real estate of the said intestate, consisting of -a farm, with mills thereon, and which is frequently called the mill property, and a lot of woodland, was sold at public vendue, and purchased by Jeromus V. i). B. Vandoren and Peter Vandoren, two of the said sons, for the sum of eighteen thousand dollars. One third of the purchase -money, being six thousand dollars, was to remain on interest, at seven per cení, and be paid to the widow, during her life, in lieu of her dower, and the principal to be divided, one month after her death, among the children of the intestate, according to law, viz. one share to each daughter, and two shares to each son. The complainants afterwards gave a mortgage on the same to the widow, to secure the sum of four hundred and twenty dollars yearly, being the interest of the said six thousand dollars ; and to secure to the other heirs their shares, amounting to three thousand six hundred dollars, according to bonds given for their proportions thereof — no mention being made in said mortgage of the balance of the said six thousand dollars, which was thc two thousand four hundred dollars, the proportions belonging to the complainants.
In March, in the year of our Lord eighteen hundred and sixteen, the complainants sold and conveyed the farm to {Philip Vanarsdalen, for about nineteen thousand dollars; of which purchase money six thousand dollars was to remain until after the death of the said widow, and for which the said Philip Vanarsdalen gave his bond to the said complainants, in the penal sum of
It does not appear that this conveyance and reconveyance was for any other purpose than to vest in the said Peter Studdiford the title to the said farm, to be held as purchaser thereof, and not as
It is charged in the bill, that the said James W. Todd mortgaged the said farm and mills to the New-Brunswick Fire Insurance Company; and also, that he agreed to sell the same to Randolph Titus.
Separate answers have been put in to the complainants’ bill, by Philip Vanarsdalen, Lawrence V. Studdiford surviving executor of Peter Studdiford, and by James W. Todd ; to which replications have been filed, and several witnesses examined, and exhibits made. As to the other defendants, no answers have been filed. Peter Vandoren, one of the complainants, having died, an order was made, in October last, that his administrators, Henry PI. Wilson and Sarah Vandoren, be made complainants in this suit, in the place of the said Peter Vandoren.
By an order of this court in April, eighteen hundred and thirty-five, the complainants’ bill appears to have been taken as confessed against the said James W. Todd, Peter Vanarsdalen, (no doubt intended for Philip Vanarsdalen,) Ijawrence V. Studdiford, surviving executor of Peter Studdiford, deceased, and Randolph Titus. 1 So far as regards the defendants who have filed answers, this decree may be considered irregular or waived ;
By the articles of vendue for the sale of the real estate of Peter Studdiford, the farm in question was sold subject .to a mortgage thereon of Mrs. Sarah Vandoren, of six thousand dollars. By a subsequent agreement in writing, bearing date October eighteenth, eighteen hundred and twenty-seven, executed by the executors of the said Peter Studdiford and the said James W. Todd, it is among other things stated, that the said farm.was purchased for eleven thousand two hundred and ninety dollars, of which six thousand .dollars was a mortgage on the property in favor of the widow Sa,’rah Vandoren. It further states ; “ and whereas difficulties have -arisen in relation to a part of the amount of said mortgage, that is to say, the sum of twenty-four hundred dollars, whether, after the death of the said Sarah Vandoren, the said sum is to be paid to the estate of the said Peter Studdiford, or to Jeromus V. D. B. Vandoren and Peter Vandoren, two of the heirs of the estate of Joseph Vandoten, deceased, both parties having made known their intention to claim the same.” The writing then certifies, “that the sum of twenty-four hundred dollars is a part of the incumbrance of six thousand dollars mentioned in the conditions ©f sale, and part of the sum of eleven thousand two hundred and ninety dollars mentioned in the said conditions as the purchase money, and that the property is liable for the same after •the death of the said Sarah Vandoren, to whomsoever may be lawfully entitled to the same.” And among other things in the said writing set forth, “ it was expressly stipulated on the part.of
Upon examining the accounts of the executors of the Rev. Peter Studdiford, the second item of charge is, u To amount of sale of mill property, seventy-eight acres, to James W, Todd, •subject to the payment of the interest on six thousand dollars thereof at seven per cent, until the death of Sarah Yandoren, and then to bo paid accountants to redeem mortgage, eleven thousand two hundred and ninety dollarsand the first item on the credit side of said account is, “ By amount retained for widow Sarah Yandoren, interest on mortgage, six thousand dollars.” After deducting the allowances to the executors from the charges against them, there is not sufficient to satisfy the claims of creditors exhibited under oath, but leaves the estate insolvent more than two thousand dollars ; and by the orphans’ court the estate is declared insolvent, and the executors are for ever discharged from any further claim than a dividend pro rata for creditors.
From these proceedings it plainly appears that the executors, the surrogate, and the court, considered the six thousand dollars deducted as not belonging to the estate of Peter Studdiford, deceased. If, however, such incumbrance existed only as to thirty-six hundred dollars, whether tire twenty-four hundred dollars balance would belong to his creditors or the creditors of Philip Yanarsdalen, could not be determined without further proceedings and proofs, inasmuch as there is no new assignee of the said
In the articles of vendue, it is said to be a mortgage of Mrs. Sarah Yandoren of six thousand dollars. In the articles of agreement aforesaid, it certifies that the sum of twenty-four hundred dollars is part of the incumbrance of six thousand dollars mentioned in the conditions of sale. In the charge against the executors for the amount of sale, it is subject to the payment of interest on six thousand dollars thereof at seven per cent, until the death of Sarah Yandoren, and then to be paid accountants to redeem mortgage; and in the credit, is amount retained for widow Sarah Vandoren, interest on mortgage, six thousand dollars.
From the various modes of referring to this incumbrance, its amount is always the same, but to whom it is due is variously slated. To entitle the complainants to recover, they ought to establish that six thousand dollars was a lien or incumbrance on the farm when they sold it to Philip Yanarsdalen, which continued until purchased by the defendant Todd, of which the twenty-four hundred dollars in controversy is the part due to them. There was of record the mortgage to secure the interest to Sarah Yandoren during her life, aud after her death .to secure several sums to persons therein named, amounting to thirty-six hundred dollars, which have been paid, being the shares of the other heirs of the said Joseph Yandoren, and are no longer in controversy, and were the mortgage and bonds given by Jeromus and Peter Yandoren while they owned the faim ; when they sold it to Philip Yanarsdalen, they took his bond for six thousand dollars, as before mentioned, for part of the purchase money. This bond still remains unpaid, except so far as the payment of interest and thirty-six hundred dollars, as before mentioned, is considered a satisfaction, leaving twenty-four hundred dollars still due thereon
The lien for unpaid purchase money on the sale of real estate, appears to have been recognized and enjoined in chancery in many cases. In Mackreth v. Symmons, 15 Ves. 329, is a decision by lord Eldon, that the vendors have a lien for unpaid purchase money against the vendee and others with notice, containing an elaborate investigation of the cases on this subject, and to which I refer to save a review of them. In Grant v. Mills, 2 V. and B. 306, the doctrine respecting the vendor’s lien was not disputed. See also Hughes v. Kearney, 1 Sch. and Lef. 135. In ex parte Peak in re Lightoller, 1 Mad. R. 196, the vice chancellor says, “A great variety of cases establish it as a clear equity, that a vendor has in all cases a lien upon the estate sold for the purchase money, unless there has been a special agreement extinguishing that equity.” In Winter v. Ld. Anson, 3 Eng. C. R. 496, part of the consideration money was secured by bond with interest at four per cent, and so to remain during the life of the vendor. On appeal from the vice chancellor’s decision that the lien was discharged, the lord chancellor says, “ The circumstance that the money was to be paid at a future day, does not affect the lieu.” “ I do not think that the lien is affected by the fact of the period of payment being dependent on the life of the vendor.” The period of payment in this case being dependent on the life of the vendor’s mother, does
* But it is objected to'this lien, that the purchaser gave his bond for the six thousand dollar?, and thereby extinguished the lien-in 2 V. and B. 306; 1 Mad. R. 346 ; 1 Sch. and Lef. 135 ; 3 Eng. C. R. 495 ; 1 John. Chan. R. 308; it was held, that taking the bond, bill or note of the vendee did not discharge the lien ; and in 4 Kent's Com. 153, 154, (n. b.) the better opinion is, that taking a note, bond or covenant from the vendee, for the payment of the money, is not of itself an act of waiver of the lien, for such instruments are only the ordinary evidence of the debt.
• That Philip Vanarsdalen was a man of property when he made that purchase, does not appear from any case cited to- be sufficient to defeat the lien ; nor in case, as he states in his answer, that in one of the bonds he gave security, when it does not appear to have been in pursuance of his contract, ought the lien to be affected, when he further states that the giving the security was his own voluntary offer.*
’ Although this lien is an invisible trust, known only to the vendor and vendee and those- that have notice, and is not without its difficulties, yet there seems to be that natural justice and equity which ought to induce the court to enforce it, especially in cases where the parties understood it, and no one is defrauded thereby. •,
Upon an examination of the testimony taken- m the causey much important evidence is given tending to prove the existence of this lien, and the actual knowledge thereof by the purchasers of the property in question.. The deposition of Sarah Sohenck,
Prom the testimony of Daniel Latourette, it appears that he owned the property in question, and bought it of Philip Vanarsdalen for something like twenty-one thousand dollars. “ He bought it subject to alien of six thousand dollars, to be paid to the heirs of Joseph Vandoren upon the death of their mother, and to their said mother the interest to be paid during her life. The six thousand dollars was considered at the time of the said purchase, part of the purchase money, and deducted from it. When it was again sold afterwards by the sheriff of Somerset county, it, was sold subject to the said six thousand dollars, .and Philip Vanarsdalen again became the purchaser.”
Arthur Schenck says, he met Todd on the ¡road, before Mrs. Vandoren’s death. “ Mr. Todd then said there was six thousand dollars of the purchase money of said property, of which Peter and Vanderbilt Vandoren ought, to have a share, but be thought •it would cause a lawsuit.” The witness also sajrs, he was .present at the sale by .the executors of Studdiford. It was stated
John J. Schenek, another witness, says: “Deponent was present at the lime of the sale, when Mr. Todd was the purchaser thereof, sold by the executors of Studdiford. The said property was sold subject to the six thousand dollars on mortgage.” Also, “ Witness recollects hearing Mr. Todd saying he wished for the privilege of paying off the six thousand dollars, as it would save him some interest. At the time of sale witness did not hear any claim made by the executors of Mr. Studdiford to the twenty-four hundred dollars.”
Cornelius Peterson says, he was present at the sale of the mill property by the heirs of Joseph Vandoren, deceased. “At this sale one third of the purchase money was to be on the property during the widow’s life. The interest to be paid to the widow during her life, and the principal after her death. Was present at the subsequent sale by the executors of Mr. Studdiford. Thinks it was sold at this sale at eleven thousand two or three hundred dollars. During the time that Latourette owned the property, the six thousand dollars was considered a lien upon said property.”
Abraham D. Baird, another witness, relates conversations with Philip Vanarsdalen, which do not in some respects corroborate the statement made in his answer respecting the lien on the property at his first purchase thereof; and, among other things, the •witness also says, “ He, Vanarsdalen, said, that as he had lost so much by the property, in strict justice the money ought to belong to him, Vanarsdalen.” On cross-examination on the part of the defendants, witness says, “that the six thousand dollar bond spoken of, was the incumbrance upon the property, so understood from Vanarsdalen and others, the same for which the mortgage was given, and for which he, Vanarsdalen, had paid the interest to the old lady.”
It also appears from the deposition of Isaac Vanarsdalen, that in conversations with Philip Vanarsdalen, but the time when
These were complainants’ witnesses. There were also two witnesses examined on the part of the defendants, principally to prove that Philip Yanarsdalen, when he purchased the mill property, was in good circumstances, and considered an industrious and thriving man ; and one of them says he lost his property by the depreciation in value and by other circumstances.
From an examination of this testimony, I am satisfied, that on the sale by Jeromus and Peter Yandoren to Philip Yanarsdalen, six thousand dollars of the purchase money was understood between them to remain a lien or incumbrance on the property in question — the interest to be paid to the widow Sarah Vandoren during her life, and the principal to be paid in one month after her death, for the heirs of Joseph Yandoren. That this same lien continued while the property was owned by Daniel Latourette, and when sold by the sheriff to said Yanarsdalen. That when he assigned it as an insolvent debtor for the benefit of his creditors to Peter Studdiford, as before mentioned, it was then, and still is, charged and chargeable with this lien. The assignment, by operation of law, passes the rights of the insolvent in the same plight and condition that he possessed them: Sugden, 364 ; 1 Vern. 267 ; 2 Mad. C. 128 ; 9 Vesey, 100 ; 2 John. Chan. R. 443 ; 10 John. R. 540.
In the case of Bayley v. Greenleaf, 7 Wheat. 46, the lien for purchase money was attempted to be established against a mortgagee who had entered into engagements, and for further advances. The court would not allow the lien against creditors holding a bona fide conveyance from the vendee. In the cause in question, I consider the defendants holding under assignment
There does not appear to have been any money or valuable consideration paid or given upon the conveyance of the said premises from Studdiford to Vanhorn, and reconveyance by him to Studdiford. In Studd ¡ford’s deed, it is expressed to be subject to all lawful incumbrances thereon after devoting the purchase money to their payment as far as the same may be sufficient. In Vanhorn’s deed, he covenants as to his rights conveyed by his assignee. These are unusual words in common conveyances, and from all the facts and circumstances connected with those deeds, it appears that whatever incumbrances existed were not ■changed by the transfer and retransfer of the property. It appears that Peter Studdiford knew of, and recognized the debt that Philip Vanarsdalen owed for the property, by an indorsement on his bond for six thousand dollars, on the twenty-fifth of April, eighteen hundred and twenty-two, when John Frelinghuysen, one of the agents of the Rev. Peter Studdiford, who was assignee of Philip Vanarsdalen, paid four hundied and twenty dollars interest on that bond, which was received and a receipt signed for the same by Sarah Vandoren.
And to all this is to be added the acts, proceedings and accounts of the executors of Peter Studdiford, before mentioned, whereby the payment of this lien or incumbrance of twenty-four hundred dollars is provided for, and the purchaser is bound to pay it as the .court directs. On the hearing of this cause there
The result of the consideration which I have given to this ease, is; That the complainants ought not to have brought separate suits, as was insisted on by the defendants, but very properly joined in the suit when they filed their bill; and that the present complainants are entitled to the twenty-four hundred dollars in question. With respect to the interest on that sum, which Todd objects to paying pending this controversy, there is no allegation in the answer of the said James W. Todd, that he has ready the amount of principal and interest, nor any offer to pay the same into court when directed j but says, the complainants
I do, therefore, advise your excellency to dismiss the complainants’ bill as against the New-Brunswick Fire Insurance Company, without prejudice to any party; and to vacate and set aside the decree pro confesso against the defendants who have answered ,• and to declare and decree, that the complainants are entitled to the said twenty-four hundred dollars, with interest at six per cent, for the delay of payment, from the tenth day of December, eighteen hundred and thirty-four, being one month after the death of the said widow of the said Joseph Yandoren, until the date of the said master’s report; and that the same constitute an equitable mortgage, lien and incumbrance on the property in question, sold by the executors of the Rev. Peter Studdiford, and now owned by the defendant James W. Todd, and that the said premises are chargeable therewith, and charged accordingly with the same; that it be referred to one of the masters of this court to take an account of what is due to the said complainants, for the said principal and interest as aforesaid, and fix a day for the payment thereof. But if the said James W. Todd shall pay the said twenty-four hundred dollars into this court, which he has liberty to do, and produce a certificate thereof to the said master before he finishes his report, the said master shall then compute interest from the tenth day of December, last aforesaid, to the time of such payment into court, and may then inquire how long that
Elias Yanarsdale, Master in Chancery.
Decree accordingly.
