3 Paige Ch. 368 | New York Court of Chancery | 1831
The grounds of objection to the original decree, and to the decree of Chancellor Sanford affirming the same, as stated in the bill of review, are, 1. That no replication having been filed to the answers of the now complainants, who were defendants in the original suit, those answers ought to have been taken as true; so far at least as to prevent their co-defendants, Pell and wife, from obtaining a decree establishing their pretended mortgage. 2. That the instrument set out in the pleadings was established as a lien on the whole 'of the premises; whereas, by its terms, it only purported to bind the one undivided half part of the lands, therein described as belonging to Martha, the wife of C. Pell. 3. That the instrument in writing, established as a mortgage, by the decree, was so defective and absurd in its terms, that it never was operative as a lien on any part of the premises. 4. That if it ever was a lien, it appeared sufficiently to the court, and should have been so decreed, that it had ceased to be a lien, and had become extinct by payment or satisfaction,
The complainants insist that all the decrees and orders in the cause, so far as they allow to A. Pell and wife, or either of
The question whether a decree, in favor of the defendants, A. Pell and wife, which affected the rights of the present complainants, could be made upon the answer of the former, and in opposition to the allegations contained in the answers of the latter, was a proper subject of consideration upon the original hearing of the cause, and also upon the re-hearing. But I do not see how this point can be properly raised on a bill of review. As the admission of one defendant in equity cannot prejudice the rights of another, having a separate and distinct interest, it seems to be equally reasonable that the answer of one defendant asserting a right in himself should not be used in his favor to the prejudice of a co-defendant.- It is true, the answer of a defendant, responsive to the bill, is evidence against the complainant; but it does not follow that it is to have the same effect as against a co-defendant who has not asked for that answer. Cases must frequently occur, where the defendants have conflicting interests, and where their answers will be directly in hostility to each other, although both are responsive to the bill. In such a case, the complainant should file a replication to the answers of both; or if a replication is filed to the answer of one defendant only, both should have notice of the rules to produce proofs, &c. to,enable both to examine witnesses upon the issue joined upon the answer pf one, Here the allegations in the answer of A, Pell and
It is also doubtful in this case whether the present complainants have shown such an interest in the controversy, as it now stands, as to entitle them to review this decree. No person can file a bill of review who has no interest in the question intended to be presented by'such bill, or who cannot be benefitted by the reversal or modification of the former decree. Here it appears that the property has been sold under the decree, and the proceeds of that sale are the whole subject of controversy. Even if A. Pell and wife are excluded from a share of such proceeds, it is admitted that the executor of Elliott is entitled to his debt and costs out of the fund before these complainants can receive any thing. There was nearly $1000 due to Elliott in May, 1824, which, with the interest thereon to November, 1827, when the proceeds of the sale were directed to be invested, would amount to about the $1300, for which, the property was sold, exclusive of costs. And these complainants cannot litigate the cause for tire benefit of Elliott’s executor.
The plea and demurrer must be allowed, and the bill must be dismissed, with costs,
See the case of Farquharson v. Seton, (5 Russ. Ch. Rep. 45,) as to the effect of a decree in favor of one of the defendants upon the rights of his co-defendant, where the latter had a common interest with the complainant.