Davison v. De Freest

3 Sand. Ch. 456

Opinion

The Assistant Vice-Chancellor.

In the case of Banks and others, Executors of McCarthy v. Walker, (3 N. Y. Legal Observer, 340,

(a) after a full consideration of the subject, I decided that in a suit for the foreclosure of a mortgage given for the purchase money, the mortgagor although personally liable for the debt, cannot set up as a defence, the failure of the title to the land, unless he has been evicted from the possession.

' In this suit, the mortgagors have never been disturbed in the possession of the lands. Indeed, no one makes any claim adverse to their title. Whatever may be my views of the construction of the devise in question, it cannot avail the mortgagors as a defence to the suit. At the same time, if there be any room for a doubt as to the conveyance to them having transmitted the title which the court ordered and intended, it is due to the purchasers upon the faith of the order of the court, to make suitable provision for the vesting of such title as may remain in any of the claimants of the fund, before permitting them to receive it on the foreclosure.

The other questions in the cause, arise between Kilmer and the two surviving Colehammer’s. I think they may be decided on these pleadings. The bill contains the material facts, and Kilmer’s claims were argued at large by his counsel.

There is no doubt but that by the devise, the four grandchildren each took a vested estate in fee, in an undivided fourth of the lands, determinable as to each, on their respectively dying without issue living at their decease; and in that event, the share of the one so dying, was to go equally to the survivors. The latter was a valid future estate in expectancy, but it was not vested.

The two surviving grandchildren do not insist, but that by the sale to De Freest and Sharp, their future interests were well and sufficiently conveyed under the orders of the court.

And I will assume, for the argument, that such was the effect of the orders and the sale and conveyance thereby directed.

The order of sale, appears to have assumed that each devisee had an absolute and indefeasible estate in fee, in an undivided fourth part of the lands; and it is contended by Kilmer, that the rights of the devisees were thereby fixed and determined, and that the order cannot he impeached collaterally. Also, that the order for the application and division of the proceeds, is final, and vests the respective shares absolutely, in the manner directed in such order.

As between the infants and the purchasers, the orders may be so far conclusive as to protect the latter ; but 1 do not think that they finally settle any questions between the infants themselves. The statute is express, that the sale shall not give to the infant, any other or greater interest or estate in the proceeds of such sale, than he had in the estate sold. (2 R. S. 195. § 180.) The argument in behalf of Kilmer, directly conflicts with this enactment; and if the orders were more pointed than they are, I do not see how the force of the statute could be overcome.

The same section of the statute,"provides that the proceeds of the sale shall be deemed real estate, of the same nature as the property sold. Therefore after the sale, the rights of the four grandchildren in the proceeds, continued precisely the same as they were before. And on the death of Martin Colehammer without issue, the capital of his one fourth of the proceeds, belonged to the other three grandchildren, each taking a vested and absolute interest in one third. On the death of Mrs. Kilmer without issue, the capital of her fourth part vested in like manner, absolutely in the two survivors, William and Rachel. The income which accrued on her fourth part, during her life, belongs to Kilmer as her'Administrator. Beyond that, he has no claim upon that portion of the fund.

His claim for his wife’s third part of Martin Colehammer’s share, cannot be litigated here. That share is not now in controversy, and there is no issue or evidence, upon which it can be determined with propriety.

This reminds me of the point, that the surviving grandchildren, having received in their shares, the full benefit of the order of sale, and one of them taken his fourth of the proceeds absolutely, without liability. to refund; they cannot now claim to participate in the share of Mrs. Kilmer.

This is not a just conclusion, if the facts were precisely as they are stated in the point. The receipt of his share by William does not alter its character, or exonerate his representatives from accounting for it on his-death without issue, in the life time of Rachel. If he should dissipate it, Rachel may be the loser in consequence of the order of sale and distribution, but Kilmer has no interest in the matter.

If Mrs. Kilmer’s share had been paid to her guardian and invested on other security, the same principles would' have been applied to it. It would have retained its character as real estate, held' under devise, and her interest determinable.

The court’s power of dealing with it for the support of the infant, does not affect the question.

The decree must declare the rights of the parties accordingly.

'As the whole subject is peculiarly within the disposal of the court, I think provision should be made for the protection of the purchasers who executed the mortgage, against any doubt as to their having acquired the whole estate in the lands sold. The proceedings show clearly, that the court aimed to vest them with the whole title.

The decree may provide that William Colehammer before receiving any part of the fund, shall release and convey to the mortgagors, or to the purchaser at the sale under the decree, all the title he may have acquired to the premises, by the death of Martin and Mrs. Kilmer, with a covenant for a similar release in case he survives Rachel, and she shall die without issue. And the capital of Rachel’s share in this mortgage, is to remain in court, and is not to be paid out to her, or her heirs or representatives, except on the execution of a similar conveyance.

With these provisions, the usual decree may be entered. A master’s report as to the necessity of selling the whole property together, is requisite, unless the parties agree upon a mode of sale; and the cause must be heard on such report, prior to directing the sale.

Since reported, 2 Sand. Ch. R. 344.