Cheesman v. Thorne

1 Edw. Ch. 629

• Court: New York Court of Chancery
• Decided: May 13, 1833
• Status: Published

Opinion

The "Vice-Chancem.or.

The objections in this case are not raised by any of the parties. They are made by the purchasers only.

1. I do not see that the complainant, John B. Cheesman, is debarrred froto bringing a suit in partition simply because he is a trustee for ^another. He is, in his own right, a tenant in common; and, by staítiíe, both at law and in equity, he has this power. His being -a trustee cannot destroy or affect his individual vested rights. So far, therefore, I think the objections not tenable.

2. Then, as to the rights of persons not in esse. All from whom such after-corners can spring are before the court as parties. In looking at the statute, 1 see that those entitled to the reversion, rema.'nder or inheritance, after the termination 0f any particular estate, are bound by a judgment in partition: 2- R- 8- 322. § 35, and (by the 79 § p. 329,) a decree of this court is equally binding and conclusive. Indeed, if there were no statutory provision, the case of Wills v. Slade, 6 Ves. Jr. 498. would be an authority for a decree in such cases. The court decided there could be a partition although other persons might come in esse and be entitled; the Chancellor observing, that if it were not so, then in every case where there is a settled estate with remainders to persons who may come in esse, there never could be a partition. The limitations over are not affected by a partition or sale. They are protected; and attach to the individual shares which by the decree arc preserved in trust according to the will.

3. There is nothing in the objection as to quantity. It often happens that land over runs the general description of a deed.

The buyers must complete their purchases. Order