8 Paige Ch. 212 | New York Court of Chancery | 1840
As I have not been furnished with the reasons of the decree of the court below, it is difficult for me to conjecture upon what grounds the decision of the vice chancellor was based. The effect of the decree, as admitted by the counsel of both parties upon the argument, although I have not been furnished with a copy so as to enable me to judge of its particular terms, is to restrain the appellant from even proceeding upon his mortgage to recover any part of the arrears of rent which he paid to Thompson in September, 1830. I presume, therefore, the vice chancellor must have concurred with the complainant’s counsel in his first point, that the defendant had not been compelled, and could not have been compelled by Thompson, to pay any part of the arrears of rent which had accrued previous to the conveyance to him in September, 1827. In the peculiar situation of this title there certainly might be seme difficulty in proceeding at law to collect the arrears of rent which became due, while the premises were occupied by another tenant than the one against whom the proceedings were instituted, in case no distress could be found upon the premises. For the grant to A. Thompson, and his heirs, appears to have been an interest in the nature of a rent seek, without any provision for a re-entry for non-payment of rent. The object and intent of the commissioners of forfeitures undoubtedly was to sell all the interest of the state, which had accrued by the attainder of Johnson, subject to the incumbrance of such a lease as Vechte was in equity entitled to receive. And indeed such was their duty under the statute. In case of any
It was admitted by both parties that the elder Thompson was dead, and that the person who received the rent after his death, was his son ; nor was there any evidence that he had any other children or descendents living at the time of his death. And it did not lie upon the defendant to prove negatively that the original grantee of the rent did not make a will, devising the rent to a stranger to his blood. This, in the absence of all proof that any other person .had any interest in this rent, was sufficient to show that it had been paid to the right person. Indeed, the payment of the rent originally to him, by the complainant, previous to 1817, was of itself a recognition of his right. And the allegation that he claimed to receive it as agent of his mother, is not supported by any proof; nor by the production of the receipts, in the hands of the complainant, showing that it was receipted for in the character of agent only. If he received any part of the rent as the agent of his mother, it was probably that part of it which accrued before his father’s death, and which, therefore, might have belonged to her as the personal representative- But the subsequent rent belonged to the heir. The defendant in his answer also states that the complainant told him that Thompson, to whom it was paid, was the owner of the rent, and the proper person to settle with for the same. And this part of the answer is responsive to the interrogatory in the bill, which called upon the defendant to state whether Thompson showed any, and what title to, or authority to receive the rent. There is no foundation for the objection that the grantee of the rent could not recover the arrears thereof for more than six years. Even if the only remedy for the recovery thereof was by an action of debt, as upon simple contract, or an action for use and occupation, the facts in this case show that the remedy would not have been barred ; for there was such an admission that the rent remained due and unpaid, as would have been sufficient to take the case out of the statute of limitations.
I think the defendant however wag wrongly advised, if he supposed he was liable for or could in any way be compelled to pay interest upon the arrears of rent which had become due and payable before he purchased the premises from Vechte in September, 1827 although from the writing which Brownell gave to Vechte, showing what was the object and intent of the mortgage, it is .evident both parties then supposed the land was chargeable with inter
The rent for which the complainant was liable under his agreement, he having sold the 16 acres to Monro free of rent, was the rent upon the whole lot from the 1st of January, 1817, to the 2d of April, 1823, when he sold the 40 acres to Heacock free of rent up to that day ; and t7^ of the rent of the lot from that time until the 15th of Sep
As the defendant claimed more than he was entitled to under his statute foreclosure, I shall make no provision to pay him the expense which he incurred by advertising. And if the complainant had been willing and had offered to pay him what he had a legal right to demand, and he had still persisted in selling the property for the purpose of raising a larger sum, to which he was not entitled, the complainant would have been justified in filing this bill to stay the sale; although he would have had a perfect remedy at law to recover back the proceeds of the sale beyond the amount actually due. It is evident, however, from the whole case, that the complainant did not intend to carry into effect his agreement, in good faith, in relation to the arrears of rent; and that he meant to drive the defendant to protect his rights by expensive and useless litigation, knowing himself to be insolvent and irresponsible. I shall not therefore give costs to either party upon the proceedings previous to this decision provided the amount for which the complainant was liable, as above declared, together with the interest thereon from the 28th September, 1830, when the arrears of rent were received by Thompson, are paid to the defendant or his solicitor within three months after the service of a copy of the decree to be entered hereon. But if the amount is not paid within the time prescribed, the complainant’s bill is to be dismissed with costs, including the defendant’s costs on this appeal.