11 Paige Ch. 470 | New York Court of Chancery | 1845
This is an appeal, by the [defendant Crawford, from an order of the vice chancellor of the first circuit, allowing James Ferris and Claiborne Ferris, the respondents, to enter an order dismissing the bill, in this cause, as against'the complainant, and setting aside a sale of the mortgaged premises, under the decree made therein in favor of the defendant James
The objection appears to be well taken, that the respondent C. Ferris, who was not a party to this suit, had no right to interfere with the proceedings therein, without making himself a party, by filing a supplemental bill to protect his rights. (Ball v. Tannard, 6 Mad. Rep. 275. Foster v. Deacon, Idem, 59. Bozon v. Bolland, 1 Russ. & Myl. 69.) And the other petitioner, J. Ferris, who is a party to the suit, swears that he has no interest in this application. It is unnecessary, however, to put the decision of this case upon any technical objection to the form of the application ; except as an answer to objections of form, which are urged against the appellant’s right to proceed under the decree. For the merits of the case, upon the papers before the vice chancellor, were clearly with the appellant Crawford.
By adverting to the facts it is perfectly evident, that there was an unwarrantable attempt to defraud the creditors and the minor children of the decedent, William Crawford, out of the property to which they were entitled. Whether Oakley, the original administrator, was a party to the fraudulent attempt, or was ignorant of his claim to be subrogated to the rights of Watt, as against the mortgaged premises, it is unnecessary to inquire. But when the vigilance of the assistant vice chancellor had frustrated the fraudulent attempt which was made while Oakley was a party to the suit, it became necessary to get rid of the effect of the decree, which had established the right of the administrator de bonis non; and for this purpose the stipulation of the 4th of January, 1841, was obtained.
What would have been the effect of a common order to dismiss the bill, in that stage of the suit, upon the right of Crawford, the administrator, to proceed under the decree, without applying to set the order aside as irregularly and improperly obtained, it is not necessary now to inquire; as no such order was in fact entered. The question here is, whether it is either just or equitable, as to the appellant, to permit an order to be entered at this time, upon that stipulation; which stipulation none of the parties had any right to make, without the consent of Crawford,
The appeal from the decree, in thé ñamé of Crawford, without his knowledge or consent, and when he had an interest in sustaining that decree, if he had been aware Of its existence, appears to have befen another device to defraud the creditófS and the children of the'decédent. And thé decféé of affirmance, which was subsequently ffegUlafly obtained, overreached this fraudulent stipulation; and deprived the vícé cháñcelibí Of the pOWCf to
I am satisfied also that the instrument called a release, a copy of which is annexed to the moving papers, was obtained by-fraud and imposition; and that the account of the manner in which such release was obtained, as given in the affidavit of Crawford, is substantially correct. Indeed the instrument, on its face, corroborates such statement; for it recites that James Ferris has agreed and undertaken to pay all the debts of the estate of W. Crawford. But there is no pretence that J. Ferris ever furnished the administrator de bonis non with any evidence of such agreement on his part. And the creditors would never have heard of that agreement, if Crawford’s eyes had not subsequently been •opened by the proceedings against him before the surrogate. But even if James Ferris had given a bond with sureties to pay all the debts, this release could not stánd for a moment. For he was well aware that a decree in favor of Crawford’s estate had been made, for a sum much beyond the amount of any debts of the estate which were then existing, and that it was a lien upon real estate which was sufficient to pay it. He therefore knew that this release would be a gross fraud upon the orphan sisters of the administrator, even if such administrator was himself fully aware of all the facts. Again; it appears that James Ferris had no interest in the mortgaged premises at the time of this release. And it is at least doubtful whether a mere'stranger, who is not named in the release, and who has paid no consideration therefor, could set it up as a release to himself; even if it was honestly obtained.
It remains to consider whether there was any irregularity, which either of the parties can take advantage of to set aside the sale by the master. After the decree of affirmance, notice was given to the solicitor for these petitioners, or at least to the only one of them who now pretends to have an interest in the
Where a sale is to be had, under a decree, for the benefit of some of the defendants, as well as for the benefit of the complainant in the suit, the complainant’s solicitor prima facie has the right to select the master and place the decree in his hands to be executed; unless the court otherwise directs. But where the complainant has no interest in the execution of the decree, or where he consents to its being executed under the direction of the defendant, who is interested in having a sale made, another person who is not a party to the suit, or who has no, interest in the question, cannot object that the decree was delivered to the master by the defendant’s solicitor, to be executed, instead of the solicitor for the complainant. The sale in this case was therefore properly made.
The order appealed from is erroneous, and must be reversed with costs, to be paid by the respondents J. Ferris and C. Ferris; and their petition must be dismissed with costs to be taxed. And the proceedings are to be remitted to the vice chancellor, to the end that the master may proceed and complete the sale and file his report; so that the purchaser may obtain possession of the premises without further delay.
The decree of the chancellor, in this case, was affirmed, upon appeal to, the court for the correction of errors. (See Ferris v. Crawford, 2 Denio, 595.)