Wright v. Miller

3 Barb. Ch. 382 | New York Court of Chancery | 1848

The Chancellor.

The only question which it appears to be necessary to consider is, whether the notice of the appeal, and the giving of the bond of $250 for the costs and damages upon the appeal, operated as a stay of the proceedings upon the decree appealed from. For if it did not, this does not appear to be a proper case in which to proceed and take the accounts, directed by the decree, pending the appeal, and before a new trustee has been appointed.

Had this been an interlocutory decree, the second clause of the 116th rule of this court would have applied to the case, and the proceedings would have been stayed by the appeal, without a special order of the appellate court, or the giving of a further bond. (Williamson v. Field, 2 Barb. Ch. Rep. 281.) But it is clearly a final decree, according to the decisions. For it gives all the consequential directions, so as finally to dispose of the whole case upon the coming in and confirmation of the master’s report, by a common order in the clerk’s office; without the necessity of bringing the cause again before the court for any other decree or further directions. And it also disposes of the questions of costs. (Coithe v. Crane, 1 Barb. Ch. Rep, 21. Johnson v. Everitt, 9 Paige’s Rep. 639. Mills v. Hoag, 7 Id. 19.) The first clause of the 116th rule of the court, therefore, leaves the question as to the stay of proceedings pending the appeal to depend upon the provisions of the sections of the revised statutes referred to in that rule ; except as to the justification of the sureties in the appeal bond, as provided for expressly in the rule itself.

The decree appealed from not only sets aside the fraudulent contrivances by which the legal title of the trustee in the trust estate was divested, and such legal title transferred to this appellant, but it directs the appointment of a new trustee, and a transfer of the legal title to him, as well as the delivery of the possession. And if the part of the decree which directs, the appointment of a new trustee had. not been appealed from, or if such new trustee had been actually appointed before this appeal was perfected, the appellant would unquestionably have been compelled to comply with the provision^ of the 84th and 85th sections of the article of the revised statutes relative to appeals from the court of chancery, to have stayed the proceedings, to compel the execution of the deed to the trustee, and the delivery of the possession to him. (2 R. iS. 606.) Even in that case, however, the conveyance of the Flushing farm, and the delivery of the possession thereof, could not have been compelled until after the taking of the account directed by the decree. For until such account had been taken it could not' be known whether that farm was to be conveyed to the new trustee, and the possession thereof delivered to him, or whether he was to have a mere lien thereon, for the amount due to the trust estate, if any sum should be found necessary to reimburse the trust estate, for the losses it might have sustained by the wrongful act of the appellant.

But as no trustee has been appointed, and E. W. Miller appeals from the part, of the decree directing a new trustee to be appointed, there is no person to whom the appellant can execute the deed and deposite it with the clerk, to abide the event of the appeal, as required by the 84th section of the statute. It is true the appellant might have waited until a new trustee was appointed. But that he was not bound to do. For it might, and probably would, vest the legal title, to a part of the trust property, at least, in such new trustee, under the provisions of the. revised statutes ; and thus enable the latter to recover the possession of the property at law, notwithstanding the appeal.

The appellant could unquestionably have given the security to the adverse party, that no waste should be copamitted upon the premises pending the appeal, and that he- would pay the value of the use and occupation of the premises in the mean time, to the new trustee when appointed, in case the a ppea was unsuccessful. But Ms neglect to comply with the provision of the revised statutes on that subject, does not prevent the appeal from staying the appointment of a new trustee. And there is no way, therefore, in which the respondents can enforce a compliance with that part of the decree pending the appeal; although the appellant neglects to give the security required.

The respondents were entitled to security for the costs awarded to them, in order to stay the collection of the costs which the appellant was directed to pay. (City Bank v. Bangs, 4 Paige's Rep. 285.) But the neglect of the appellant to give security for the payment of the costs awarded by the assistant vice chancellor would not prevent the appeal from operating as a stay of the proceedings as to other parts of the decree appealed from. And as a matter of expediency it may not be advisable for the respondents to tax their costs, and attempt to collect them, in this stage of the proceedings. For as there cannot be separate taxations, and separate executions, for different portions of the same bill of costs, where the decree makes no provision therefor, the taxation and collection of the costs which have accrued up to this time would probably deprive the solicitor of the complainants, in the first of the above causes, of the costs upon the reference.

Except as to the costs, this is not a decree for the payment of money, within the intent and meaning of the 82d section of the statute, so as to make it necessary to give security to pay the amount decreed, before the coming in and confirmation of the master’s report showing that some money is to be paid. It is not a decree directing the payment of money absolutely; and merely referring it to the master to compute the amount due. For if the value of the trust property which remains, in specie, with the permanent improvements made thereon by the appellant, is equal to, or greater than what the present value of the whole trust property would have been, at this time, if the fraudulent destruction of the trust had not taken place, including that part of the rents and profits which ought to have been accumulated for the children, then no money whatever is directed to be paid to the master for the new trustee. Or if the loss which the trust estate has sustained is just equal to.the value of the Flushing farm, and the respondents elect to have, that farm conveyed to the new trustee to make up such loss, then there is nothing to be paid by this appellant except the costs of the complainants in the first suit; including the costs of the reference and the proceedings subsequent to the decree. It was therefore impossible to ascertain, at the time of appealing, whether any, or if any, how much money would be payable under the decree. And to require the appellant to give security in double the amount that upon a certain contingency' might become payable under this final decree, to make the appeal a stay Of the proceedings, would be to deprive him of the possibility of staying the proceedings. The case is different where the decree directs the payment of costs which have not been taxed, or the payment of the amount due upon a bond and mortgage, which is a matter of .mere computation. (Coithe v. Crane, 1 Barb. Ch. Rep. 21.) For these reasons, I think this is a case in which the giving of the ordinary appeal bond stayed all proceedings upon the decree appealed from, except the proceedings ■for the costs which the appellant was directed to pay ; and that the master was right in declining to proceed with the reference before the appeal was disposed of by the appellate court.

There are many cases in which the revised statutes authorize appeals without any adequate security for the eventual performance of the decree appealed from, if it shall not be found to have been erroneous, or for the payment of the damages caused by the appeal; the necessary effect of which is that appeals are often Fraught for the mere purpose of delay and vexation. And the rule of this court relative to the security to be given upon appeals from decrees of vice chancellors, has not required any security in such a case as this, other than the ordinary appeal bond in the penalty of $250. If the appellant is really insolvent, therefore, the remedy of the respondent is by an application for the appointment of a receiver of the rents and profits of the trust property pending the appeal, and for an in- • junction to restrain the appellant from receiving such rents. But upon the papers before me the respondents have not made out a case entitling them to such relief.

The order appealed from must be reversed, and the application to direct the master to proceed in the reference, denied ; but without costs to either party.