The Chancellor.
The agreement of sale and purchase between the Colfaxes and Haythorn included three lots which were not covered by the mortgage to Samuel S. Seward, namely, the Butler Seward lot, the lot at the south end of the farm, and the turnpike house lot.
Haythorn went into possession of these, as well as of the part mortgaged to Samuel S. Seward, in 1814, under the said agreement of sale and purchase between the Colfaxes and him.
In November, 1820, the lands mortgaged to Samuel S. Seward were sold, under a decree and execution for the sale thereof, to satisfy Seward’s mortgage; and the title to these mortgaged premises became snbsequently vested in Smith.
In May, 1821, the said three lots not included in the mortgage were exposed to sale by the Sheriff, on judgments and executions in favor of the State Bank at Newark against Haythorn and the Colfaxes ; and two of them, viz., the Butler Seward lot and the turnpike lot, were struck off to Nicholas Ryerson; and the third was struck off to the Bank. No deed was ever made to the Bank for the lot struck off to them ; nor was any deed ever made to Ryerson for the lots struck off to him.
[337]*337The debt due the Bank, and for the payment of which these three lots were so exposed to sale and struck off, was afterwards paid by Haythorn and the Colfaxes; the judgments were obtained on notes of the Colfaxes on which Haythorn was indorser. Nothing was ever paid by Ryerson or the Bank for or on account of the lots so struck off to them, respectively.
Jn August, 1821, Smith obtained from the Sheriff deeds for the two lots so struck off to Ryerson, and paid to the Sheriff the sums for which the said two lots were, respectively, struck off. That money remained in the hands of the Sheriff until and at the time of his death; and is still in the hands of his representatives.
Afterwards, the commissioners appointed to divide the estate of Smith after his death sold all his real estate to Margerem, the defendant, at public sale; and included in said sale the Butler Seward lot and the turnpike lot, for which Smith had so obtained deeds from the Sheriff.
As to the lot at the south end of the farm, then, the case is simply this : Haythorn went into possession of it under a written agreement under seal for the purchase of it from the Col-faxes, and paid the purchase money, and remained in actual possession of it until he removed to Paterson, in 1825; and neither Smith nor Margerem ever acquired any title or pretense of title to it. Neither Smith nor Margerem has ever had anything to oppose to Haythorn’s right to the possession of this lot, except a possession, if they had possession, without any title or right of possession. Haythorn’s prior possession was at all times sufficient for his recovery of the possession of it from them or either of them by ejectment. And he had not only the prior possession, but that was accompanied with the right of possession, under the said agreement between the Colfaxes and him. I do not see that the fact that Haythorn had not obtained a deed from the Colfaxes of the legal title and that in that view his title was only an equitable title is any reason why this Court should be applied to to give him possession as against an intruder upon his possession. It would have been proper for him to come here to obtain the legal title from the Colfaxes; but that is not the object of this bill; the Colfaxes are not parties to the bill. The [338]*338prayer of the bill is for possession as against Margerem. His remedy was by ejectment.
As to the turnpike lot, the defendant says he is informed and believes it was never in the possession of Smith; and that he, the defendant, never held or took possession of it until April, 1842, when Jos. Sharp sold and conveyed it to him. If, then, Haythorn is entitled to the possession of this lot as against the defendant, he has a plain remedy by ejectment.
If, by reason of the state of things between Jos. Sharp and John Seward, (whose interest in or claim to a title for said turnpike lot, from Sharp, is said to have passed from said John Seward to the Colfaxes, and from the Colfaxes to Haythorn,) Sharp was under no obligation to make a title for said lot to John Seward, or to any one claiming his interest, but was at liberty to convey it to whom he pleased, then his grantee cannot be disturbed in the possession of it. As to this lot the remedy of Hay-thorn is either by ejectment against Margerem, if, under the circumstances, that shall be deemed the proper remedy, or by bill against Sharp for a conveyance or compensation, making all necessary parties defendants. I do not see how this Court can take any action in reference to this lot on a bill against Marge-rem alone. The question between Sharp and John Seward, or the assignees of his interest, cannot be settled on a bill to which Sharp’s representatives are not parties.
There seems to have been a misapprehension on the part of the complainant as to the two lots struck off to Ryerson on the sale under the Bank judgment and execution. The bill states that' at that sale the Butler Seward lot and the lot at the south end of the farm were struck off to Ryerson; and the answer admits this; but the Sheriff’s deeds to Smith for the two lots struck off to Ryerson at that sale show that they were the Butler Seward lot and the turnpike lot, and not the lot at the south end of the farm ; and Margerem, at the commissioners’ sale of Smith’s lands, bought the lots which had been so deeded by the Sheriff to Smith. But the defendant, in his answer, says he is informed and believes that Smith never had possession of this lot, and that he, the defendant, never took possession of it until 1842, when he took possession of it under a deed from Sharp to him ; and [339]*339this is the title under which the defendant claims to hold this lot. Now, Sharp may or may not have been bound to convey this lot to John Seward, or the assignees of his interest in it. It is clear that the Court cannot on this bill, to which Sharp’s representatives are not parties, give Haythorn any relief as to this lot.
As to the Butler Seward lot, the case seems to he this: It was not included in the mortgage to Samuel S. Seward. In May, 1821, it was struck off to Ryerson at the Sheriff’s sale under the Bank execution. On the 20th of August, 1821, the Sheriff made a deed for it to Smith. On the 23d of November, 1824, Smith recovered a verdict in ejectment against Haythorn for that part of the premises mortgaged to Samuel S. Seward of which Hay-thorn then remained in possession. On that day Smith gave to Haythorn a writing by which, in consideration of $1 and other good considerations, he covenanted, granted and agreed with Haythorn to convey to him in fee 200 acres of land in the Scriba patent, Oswego county, New York, to be selected in a body by the said Haythorn, and to execute the deed as soon as the said Haythorn should notify him of the selection; and Smith, by the said writing, further agreed to deliver to Haythorn a yoke of oxen, ox yoke and chain, and a two-horse wagon, in 30 days from the date of said writing. These latter articles appear to have been delivered to Haythorn shortly after. Judgment in the ejectment was entered at the term of the Supreme Court succeeding the verdict; and in July, 1825, Haythorn was dispossessed of the premises for which the ejectment was brought; and thereupon moved to Paterson. This Butler Seward lot, though not included in the mortgage to Samuel S. Seward, lay within the enclosures of the farm.
In 1826, William Smith died.
Free access — add to your briefcase to read the full text and ask questions with AI
The Chancellor.
The agreement of sale and purchase between the Colfaxes and Haythorn included three lots which were not covered by the mortgage to Samuel S. Seward, namely, the Butler Seward lot, the lot at the south end of the farm, and the turnpike house lot.
Haythorn went into possession of these, as well as of the part mortgaged to Samuel S. Seward, in 1814, under the said agreement of sale and purchase between the Colfaxes and him.
In November, 1820, the lands mortgaged to Samuel S. Seward were sold, under a decree and execution for the sale thereof, to satisfy Seward’s mortgage; and the title to these mortgaged premises became snbsequently vested in Smith.
In May, 1821, the said three lots not included in the mortgage were exposed to sale by the Sheriff, on judgments and executions in favor of the State Bank at Newark against Haythorn and the Colfaxes ; and two of them, viz., the Butler Seward lot and the turnpike lot, were struck off to Nicholas Ryerson; and the third was struck off to the Bank. No deed was ever made to the Bank for the lot struck off to them ; nor was any deed ever made to Ryerson for the lots struck off to him.
[337]*337The debt due the Bank, and for the payment of which these three lots were so exposed to sale and struck off, was afterwards paid by Haythorn and the Colfaxes; the judgments were obtained on notes of the Colfaxes on which Haythorn was indorser. Nothing was ever paid by Ryerson or the Bank for or on account of the lots so struck off to them, respectively.
Jn August, 1821, Smith obtained from the Sheriff deeds for the two lots so struck off to Ryerson, and paid to the Sheriff the sums for which the said two lots were, respectively, struck off. That money remained in the hands of the Sheriff until and at the time of his death; and is still in the hands of his representatives.
Afterwards, the commissioners appointed to divide the estate of Smith after his death sold all his real estate to Margerem, the defendant, at public sale; and included in said sale the Butler Seward lot and the turnpike lot, for which Smith had so obtained deeds from the Sheriff.
As to the lot at the south end of the farm, then, the case is simply this : Haythorn went into possession of it under a written agreement under seal for the purchase of it from the Col-faxes, and paid the purchase money, and remained in actual possession of it until he removed to Paterson, in 1825; and neither Smith nor Margerem ever acquired any title or pretense of title to it. Neither Smith nor Margerem has ever had anything to oppose to Haythorn’s right to the possession of this lot, except a possession, if they had possession, without any title or right of possession. Haythorn’s prior possession was at all times sufficient for his recovery of the possession of it from them or either of them by ejectment. And he had not only the prior possession, but that was accompanied with the right of possession, under the said agreement between the Colfaxes and him. I do not see that the fact that Haythorn had not obtained a deed from the Colfaxes of the legal title and that in that view his title was only an equitable title is any reason why this Court should be applied to to give him possession as against an intruder upon his possession. It would have been proper for him to come here to obtain the legal title from the Colfaxes; but that is not the object of this bill; the Colfaxes are not parties to the bill. The [338]*338prayer of the bill is for possession as against Margerem. His remedy was by ejectment.
As to the turnpike lot, the defendant says he is informed and believes it was never in the possession of Smith; and that he, the defendant, never held or took possession of it until April, 1842, when Jos. Sharp sold and conveyed it to him. If, then, Haythorn is entitled to the possession of this lot as against the defendant, he has a plain remedy by ejectment.
If, by reason of the state of things between Jos. Sharp and John Seward, (whose interest in or claim to a title for said turnpike lot, from Sharp, is said to have passed from said John Seward to the Colfaxes, and from the Colfaxes to Haythorn,) Sharp was under no obligation to make a title for said lot to John Seward, or to any one claiming his interest, but was at liberty to convey it to whom he pleased, then his grantee cannot be disturbed in the possession of it. As to this lot the remedy of Hay-thorn is either by ejectment against Margerem, if, under the circumstances, that shall be deemed the proper remedy, or by bill against Sharp for a conveyance or compensation, making all necessary parties defendants. I do not see how this Court can take any action in reference to this lot on a bill against Marge-rem alone. The question between Sharp and John Seward, or the assignees of his interest, cannot be settled on a bill to which Sharp’s representatives are not parties.
There seems to have been a misapprehension on the part of the complainant as to the two lots struck off to Ryerson on the sale under the Bank judgment and execution. The bill states that' at that sale the Butler Seward lot and the lot at the south end of the farm were struck off to Ryerson; and the answer admits this; but the Sheriff’s deeds to Smith for the two lots struck off to Ryerson at that sale show that they were the Butler Seward lot and the turnpike lot, and not the lot at the south end of the farm ; and Margerem, at the commissioners’ sale of Smith’s lands, bought the lots which had been so deeded by the Sheriff to Smith. But the defendant, in his answer, says he is informed and believes that Smith never had possession of this lot, and that he, the defendant, never took possession of it until 1842, when he took possession of it under a deed from Sharp to him ; and [339]*339this is the title under which the defendant claims to hold this lot. Now, Sharp may or may not have been bound to convey this lot to John Seward, or the assignees of his interest in it. It is clear that the Court cannot on this bill, to which Sharp’s representatives are not parties, give Haythorn any relief as to this lot.
As to the Butler Seward lot, the case seems to he this: It was not included in the mortgage to Samuel S. Seward. In May, 1821, it was struck off to Ryerson at the Sheriff’s sale under the Bank execution. On the 20th of August, 1821, the Sheriff made a deed for it to Smith. On the 23d of November, 1824, Smith recovered a verdict in ejectment against Haythorn for that part of the premises mortgaged to Samuel S. Seward of which Hay-thorn then remained in possession. On that day Smith gave to Haythorn a writing by which, in consideration of $1 and other good considerations, he covenanted, granted and agreed with Haythorn to convey to him in fee 200 acres of land in the Scriba patent, Oswego county, New York, to be selected in a body by the said Haythorn, and to execute the deed as soon as the said Haythorn should notify him of the selection; and Smith, by the said writing, further agreed to deliver to Haythorn a yoke of oxen, ox yoke and chain, and a two-horse wagon, in 30 days from the date of said writing. These latter articles appear to have been delivered to Haythorn shortly after. Judgment in the ejectment was entered at the term of the Supreme Court succeeding the verdict; and in July, 1825, Haythorn was dispossessed of the premises for which the ejectment was brought; and thereupon moved to Paterson. This Butler Seward lot, though not included in the mortgage to Samuel S. Seward, lay within the enclosures of the farm.
In 1826, William Smith died. Commissioners were appointed to make partition of his lands ; and on a report that the lands could not be divided without prejudice, the commissioners were ordered to sell them at public sale. The defendant, Margerem, was the purchaser at this sale. This Butler Seward lot was included in this sale ; and the commissioners executed to Margerem a deed for the land so sold by them, including the Butler Seward lot, on the 1st of August, 1821; and Margerem, thereupon, went into possession.
[340]*340Previous to May, 1830, Haythorn sued the administrators of -William Smith, in the Common Pleas of Sussex, in an action on •the case, for work and labor, &c. In the term of May, 1830, of that Court, it was ordered by the Court, with the consent of the parties, that all matters in dispute and difference between the parties be referred to the award, order, arbitrament, final end and determination of Jos. E. Edsall, Robert A. Lum and David Ford. On the 16th of August, 1830, the referees reported that they found due to Haythorn, from the administrator of Smith #129 84, with costs; and further reported, that as respects a certain article of agreement for the conveyance of 200 acres of land by Wm. Smith to Haythorn, made Nov. 23, 1824, they took the matter contained in the said articles into consideration, and were not influenced in making out their report by anything contained in that article ; and that they could not allow to Hay-thorn his claim for damages for the neglect of said Smith to execute the conveyance for the said land; Haythorn having failed or neglected to make his selection and notify Smith thereof.
On the 5th of May 1835, Thomas C. Ryerson, as late Attorney of Thomas W. Haythorn, in a controversy between him and the Administrators of Smith, deceased, gave a writing by which he acknowledged to have received from Elias L’Hommedieu, in behalf of the said Administrators of Smith, a deed for 161 1-4 acres of land in Oswego county, New York, executed to said Haythorn, and also #47 41 in money; which deed, he in pursuance of instructions from the said Haythorn, accepted for him in full satisfaction and fulfillment of a written promise made by said Smith in his lifetime to the said Haythorn, for the conveyance of two hundred acres of land in the State of New York.
Matters stood in this situation until the filing of the bill in this cause, on the 25th of October 1842; the defendant, Marge-rem, having been in possession of the Butler Seward lot, under his deed from the said commissioners since August 1827, a period of 15 years, and Smith in his lifetime having been in possession of this Butler Seward lot from July 1825, when Haythorn removed to Paterson till his death, claiming title thereto under his deed from the Sheriff in Aug. 1821; and as to the possession [341]*341of this lot between. Aug. 1821 and July 1825, the evidence of an exclusive possession hy Haythorn is not very satisfactory.
Here, then, is a period of at least 17 years, during which Margerem, and Smith, under whom he claims, have been in exclusive possession of this lot prior to the filing of the bill, claiming title under deeds. This would not he conclusive against Hay-thorn’s report either at law or in this Court; hut it shews a staléness in the present claim, which added to the facts before stated, should admonish the Court not to venture on any doubtful ground or ahead of jurisdiction, or any exercise of a jurisdiction properly belonging to a Court of law, for the purpose of giving the Complainant relief in this Court.
The ground on which the Complainant comes here seems to ho that 1ns title is only an equitable title, he never having obtained a deed from the Colfaxes, and that the deed from the Sheriff to Smith for this lot, struck off to Ryerson at the Sheriff’s sale oñ the Bank execution, was improperly obtained by Smith from the Sheriff, and was illegally given by the Sheriff to Smith; that it was agreed, at and before this sale, between the persons there representing the bank and Haythorn and the Sheriff, that the deed should not he delivered, but that time should he given, notwithstanding the striking off the lots at the sale, for the payment of the hank judgment; and that if it was paid within some short time no deed should he executed by the Sheriff; that the bank judgment was paid before the Sheriff made the deed to Smith; and therefore the Sheriff had no right or authority to make a deed, even to Ryerson, the person to whom this lot was struck off; much less to Smith ; and that the deed was procured hy Smith from the Sheriff hy misrepresentations made by him to the Sheriff, and was therefore fraudulent and void.
And the complainant comes into this court praying that Margerem, to whom this lot, with other lands, was conveyed hy the commissioners who sold Smith’s real estate, may he decreed to deliver possession of this lot to the complainant; and to account for the rents and profits of it; and that the deed from the Sheriff to Smith therefor may be declared void, and that the complainant’s right to the said lot may be established.
If the complainant was in possession, it may be that a, bill [342]*342would be entertained in this court for the purpose of setting aside a deed obtained under such circumstances as those under which Smith obtained a deed from the Sheriff for this lot. A party in possession may come into this court under proper circumstances to remove a cloud from his title. But I am not aware that a party out of possession can come here as against another in possession, and claiming title under a deed, and obtain a decree declaring the defendant’s deed void and putting the complainant in possession and giving him an account of the rents and profits. If the deed from the Sheriff to Smith was void, it was void at law as well as in equity ; and the complainant’s prior possession and right of possession under the agreement between the Col-faxes and him was sufficient for him to maintain ejectment against Smith. And, in ejectment against Margerem, the questions, whether the case was. within the principle that a bona fide purchaser from a fraudulent grantee will hold unaffected by the fraud, and whether Margerem was such a bona fide purchaser, were questions as proper for a court of law as for this court.
This court could not grant the relief sought by this bill without declaring that the title set up by Margerem is bad, and that the complainant is entitled to the possession of the lands against that title. This, I conceive, would be going beyond the province of this court.
Smith had a deed for this lot from the Sheriff, and came into possession of it at least as early as July, 1825, when Haythorn moved to Paterson ; and he died in possession, in 1826. Margerem bought it at the commissioners’ sale of Smith’s estate •, and has been in possession ever since. If there were any equities in the case proper to be settled by this court, after a trial at law, this court might retain the bill until the question of title should be settled at law. But an ejectment, with the action for mesne profits, if judgment should be recovered in the ejectment, would afford full relief. There would be nothing left for the action of this court. If the time which has elapsed would now be a difficulty in the way of the complainant, at law, that difficulty cannot affect the determination of this court as to the propriety of ■its granting the relief sought by this bill.
Bill dismissed.