Williamson v. Berry
49 U.S. 495 (1850)

Annotate this Case

U.S. Supreme Court

Williamson v. Berry, 49 U.S. 8 How. 495 495 (1850)

Williamson v. Berry

49 U.S. (8 How.) 495

Syllabus

Mary Clarke devised to Benjamin Moore and Charity, his wife, and Elizabeth Maunsell, and their heirs forever, as joint tenants, and not as tenants in common,

"all that part of my said farm at Greenwich aforesaid, called Chelsea &c., to have and to hold the said hereby devised premises to the said Benjamin Moore and Charity, his wife, and Elizabeth Maunseli, and to the survivor or survivors of them, and to the heirs of such survivor, as joint tenants, and not as tenants in common, in trust, to receive the rents, issues, and profits thereof, and to pay the same to Thomas B. Clarke &c., during his natural life, and from and after the death of Thomas B. Clarke, in further trust, to convey the same in fee to the lawful issue of the said Thomas B. Clarke, living at his death."

Under this devise, the first-born child of Thomas B. Clarke, at its birth, took a vested estate in remainder, which opened to let in his other children to the like estate, as they were successively born, and such vested remainder became a fee simple absolute in the children living, on the death of their father.

The acts of the Legislature of New York passed for the relief of Thomas B. Clarke show that he was made the trustee of the property devised; to sell or mortgage a part of it, with the assent or appointment of the chancellor.

His obligation was to account annually for the proceeds of every sale or mortgage which might be made, and it was his right to use the interest of the principal for himself and for the education and maintenance of his children.

The acts of the legislature discharged the trustees named in the devise, whatever may have been their estate in the land under it, but did not vest an estate in fee in Thomas B. Clarke.

The acts of the legislature for the relief of Clarke are private acts. They provide that the chancellor may act upon them summarily, upon the petition of Clarke, upon which orders are given, as contradistinguished from decrees in suits by bill filed. The last are judgments upon the matters in controversy between the parties before the court. The other are orders in conformity with a legislative act in a particular case. Whatever the chancellor does in either case, he does as a court of chancery. It will stand when it has been done within the jurisdiction conferred by the private act, until it has been set aside upon motion, as his decrees in suits upon bill filed do, until they have been set aside by a bill of review.

In such a case, the court will not deviate from the letter of the act, nor make an order partly founded upon its original jurisdiction, and partly upon the statute. It cannot confound its original jurisdiction in a suit with the powers it may be authorized to execute by petition, either in a public act giving statutory jurisdiction to the court, to be exercised summarily upon petition, or in a private act providing for relief in a particular case, which is to be carried out by the same mode of procedure.

In these acts for the relief of Clarke, what the chancellor can do is precisely stated. No authority was given to him, in giving his assent to Clarke's making sales of any part of the devised premises, to order that Clarke might make sales of any portion of it, in payment and satisfaction of any debt or debts due and owing by Clarke, upon a valuation to be agreed upon, between him and his respective creditors. Or that Clarke might take the money arising from the sales of the premises, and apply the same to the payment of his debts, investing the surplus only in such manner as he may deem proper to yield an income for the maintenance and support of his family. This was not an exercise of jurisdiction, but an order out of and beyond it.

These were private acts for the alienation of land, to be made with the assent of the chancellor that there might be an assurance by matter of record, under his sanction, of a transfer of the property to such as might become purchasers from Clarke.

Neither orders summarily given upon petition in chancery, nor decrees in suits upon bill filed, can be summarily reviewed as a whole in a collateral way.

But it is a well settled rule in jurisprudence that the jurisdiction of any court exercising authority over a subject maybe inquired into in every other court, when

Page 49 U. S. 496

the proceedings in the former are relied upon, and brought before the latter, by a party claiming the benefit of such proceedings.

The rule applies to the case in hand, though it may have been decided by the highest tribunal in New York, that the chancellor had jurisdiction, under the acts for the relief of Clarke, to give the order permitting him to sell the property to his creditors, in payment of his debts, for though this Court will recognize as a rule for its judgments the decisions of the highest courts of the states relative to real property as a part of the local law, it does not recognize as in any way binding upon them, as a part of the local law, the decisions of the state courts upon private acts of any kind, or such of them as provide for the alienation of private estates, by particular persons, with the sanction of a court or of the chancellor. Decisions upon private

acts form no part of the local law of real property. They concern only those for whose benefit they are made, and can be no rule for any other case.

This Court decides that, under the acts of New York, the chancellor had not the jurisdiction to give an order, permitting Clarke to convey any part of the devised premises in satisfaction of his debts, and that neither De Grasse, nor his alienee Berry, can derive from the order of the chancellor, or from the conveyance by Clarke to De Grasse, any title to the premises in dispute.

A sale is a word of precise legal import, both at law and in equity. It means a contract between parties to take and to pass rights of property for money, which the buyer pays or promises to pay to the seller for the thing bought and sold.

A sale ordered, decreed, or permitted by a chancellor, subject to the approval of a master, requires the master's approval, and confirmation by the court, before a purchaser can have a legal title to the estate that he means to buy or has bid for under the decree of the court.

In any sale under a decree or order in chancery, the purchaser, before he pays his money, must not only satisfy himself that the title to the property to be sold is good, but he must take care that the sale has been made according to the decree or order.

If he takes under an imperfect sale, he must abide the consequence.

The sale in this instance by Clarke to De Grasse, if it were otherwise good, which it is not, would be a nullity, for it wants the approval by the master to whom the execution of the order was confided by the chancellor.

Nor was Clarke's sale to De Grasse a judicial sale. By judicial sale is meant one made under the process of a court, having competent authority to order it, by an officer legally appointed and commissioned to sell.

In order that the sale by Clarke to De Grasse should be a judicial sale, it was requisite that the chancellor should have had the authority to direct a sale of the premises to his creditors for their demands, and that it should have been approved by the master in the way the order directed it to be done.

It was an action of ejectment for one-third of eight lots of land in the City of New York. Mrs. Williamson was the daughter of Thomas B. Clarke, being one of three children who survived him, the other two being Mrs. Isabella M. Cochran and Bayard Clarke.

In the year 1802, Mary Clarke died, leaving a will, from which the following is an extract:

"Item, I give and devise unto the said Benjamin Moore and Charity, his wife, and to Elizabeth Maunsell, and their heirs forever, as joint tenants, and not as tenants in common, all that certain lot of land number eight, in the said thirteenth allotment of the said patent, containing one hundred acres; also that part of

Page 49 U. S. 497

my said farm at Greenwich aforesaid, called Chelsea, lying to the northward of the line herein before directed to be drawn from the Greenwich Road to the Hudson River, twelve feet to the northward of the fence standing behind the house now occupied by John Hall, bounded southerly by the said line, northerly by the land of Cornelius Ray, easterly by the Greenwich Road, and westerly by the Hudson, including that part of my said farm now under lease to Robert Lenox; also all my house and lot, with the appurtenances, known by number seven, within the limits of the prison, and now occupied by Thomas Byron; to have and to hold the said hereby devised premises to the said Benjamin Moore and Charity, his wife, and Elizabeth Maunsell, and to the survivor or survivors of them, and the heirs of such survivor, as joint tenants, and not as tenants in common, in trust to receive the rents, issues, and profits thereof, and to pay the same to the said Thomas B. Clarke, natural son of my late son Clement, during his natural life, and from and after the death of the said Thomas B. Clarke, in further trust to convey the same to the lawful issue of the said Thomas B. Clarke living at his death in fee, and if the said Thomas B. Clarke shall not leave any lawful issue at the time of his death, then in the further trust and confidence to convey the said hereby devised premises to my said grandson Clement C. Moore and to his heirs, or to such person in fee as he may be will appoint, in case of his death prior to the death of the said Thomas B. Clarke."

On 2 March, 1814, Thomas B. Clarke presented a petition to the Legislature of New York, stating the will; that the trustees had signed a paper agreeing to all such acts as the legislature might pass, and requesting to be discharged from the trust; that Clement C. Moore, the devisee in remainder, had also consented to such acts, and that the estate could not be so improved and made productive as to answer the benevolent purposes of the testatrix. The prayer was for general relief.

On 1 April, 1814, the legislature passed an act entitled, "An act for the relief of Thomas B. Clarke." It recited the facts above mentioned, and then provided in the first section

"That it shall and may be lawful for the court of chancery on the application of the said Thomas B. Clarke, to constitute and appoint one or more trustees to execute and perform the several trusts and duties specified and set forth in the said in part recited will and testament, and in this act, in the place and stead of the said Benjamin Moore and Charity, his wife, and the said Elizabeth Maunsell, who are hereby discharged from the trusts in the said will mentioned. Provided, that it

Page 49 U. S. 498

shall be lawful for the said court at any time thereafter, as occasion may require, to substitute and appoint other trustee or trustees in the room of any of those appointed in this act, in like manner as is practiced in the said court in cases of trustees appointed therein, and such trustee or trustees so appointed, are hereby vested with the like powers as if he or they had been named and appointed in and by this act."

The second, third, fourth, and fifth sections prescribed minutely what should be done by the trustees, and authorized them to sell and dispose of a moiety of the estate, and invest the proceeds in some productive stock, the interest, excepting a certain portion, to be paid to Mr. Clarke, and the principal to be reserved for the trusts of the will.

The sixth section was as follows:

"VI. And be it further enacted that in every case, not otherwise provided for by this act, the trustees appointed, or to be appointed, in virtue thereof, shall be deemed and adjudged trustees under the said will, so far as relates to the premises mentioned and described in the recital to this act, in like manner as if such trustees had been originally named and appointed in the said will; and they shall, in all respects, be liable to the power and authority of the court of chancery for or concerning the trusts created by this act."

It did not appear that any proceedings took place under this act.

On 1 March, 1815, Clarke presented another petition to the legislature, stating that Clement C. Moore the contingent devisee, had released all his interest in the property to Clarke and his family, whereby the petitioner and his infant children had become the only persons interested in the estate. He stated also that he had been unable to prevail upon any suitable person to undertake the performance of the trust.

On 24 March, 1815, the legislature passed an act supplemental to the "act for the relief of Thomas B. Clarke." This act being a very important part of the case, it is proper to recite it.

"An act supplemental to the "act for the Relief of Thomas B. Clarke,""

"passed April 1, 1814"

"Whereas, since the passing of the act entitled 'An act for the relief of Thomas B. Clarke,' Clement C. Moore in the said act named, by an indenture duly executed by him, and recorded in the office of the secretary of this state, and bearing date 21 February, in the year 1815, hath, for the consideration therein expressed, and in due form of law, released and

Page 49 U. S. 499

conveyed unto the said Thomas B. Clarke, his heirs and assigns, forever, all the estate, right, title, interest, property, claim, and demand whatsoever of the said Clement C. Moore of, in, and to the real estate mentioned in the said act, whereby the said real estate became exclusively vested in the said Thomas B. Clarke and his children. And whereas the said Thomas B. Clarke hath prayed the legislature to alter and amend the said act, particularly in relation to the interest of the said Clement C. Moore and the execution of certain trusts in the said act mentioned, therefore"

"I. Be it enacted by the people of the State of New York, represented in Senate and assembly, that all the beneficial interests and estate of the said Clement C. Moore or those under him, arising or to arise by virtue of the act to which this is a supplement, or by the will mentioned in the said act, shall be, and the same is hereby, vested in the said Thomas B. Clarke, his heirs and assigns, and so much of the act to which this is a supplement as is repugnant hereto, and so much thereof as requires the trustees to set apart and reserve a certain annual stipend out of the interest or income of the property thereby directed to be sold for the purpose of creating and accumulating a fund at compound interest during the life of the said Thomas B. Clarke, and so much of the said act as requires the several duties therein enumerated to be performed by trustees, to be appointed by the court of chancery as therein mentioned, be, and the same is hereby, repealed."

"II. And be it further enacted that the said Thomas B. Clarke be, and is hereby, authorized and empowered to execute and perform every act, matter, and thing, in relation to the real estate mentioned in the act to which this is a supplement in like manner and with like effect that trustees duly appointed under the said act might have done, and that the said Thomas B. Clarke apply the whole of the interest and income of the said property to the maintenance and support of his family and the education of his children."

"III. And be it further enacted that no sale of any part of the said estate shall be made by the said Thomas B. Clarke until he shall have procured the assent of the chancellor of this state to such sale, who shall, at the time of giving such assent, also direct the mode in which the proceeds of such sale, or so much thereof as he shall think proper, shall be vested in the said Thomas B. Clarke as trustee, and further that it shall be the duty of the said Thomas B. Clarke annually to render an account to the chancellor or to such person as he may appoint of the principal of the proceeds of such sale only, the interest

Page 49 U. S. 500

being to be applied by the said Thomas B. Clarke, in such manner as he may think proper, for his use and benefit, and for the maintenance and education of his children, and if, on such return, or at any other time, and in any other manner, the chancellor shall be of opinion that the said Thomas B. Clarke hath not duly performed the trust by this act reposed in him, he may remove the said Thomas B. Clarke from his said trust, and appoint another in his stead, subject to such rules as he may prescribe in the management of the estate hereby vested in the said Thomas B. Clarke as trustee."

On 28 June, 1815, Clarke presented a petition to the chancellor. It recited the will and the two acts of the legislature; stated that he had a large and expensive family and no means of maintaining them except from the rents and income of the devised property, which were then and always had been insufficient for the purpose; that he had been compelled to resort to loans and incur debts; that he had borrowed, in order to meet the exigencies of his family, the sum of $4,400 in the year 1805, and $4,500 since; that a sale of a moiety of the devised property had become necessary, so much of the proceeds of which as might be required should be applied to the payment of the above debts, and the residue vested in him as trustee under the acts, and praying the chancellor to authorize, order, and direct a sale for the above-mentioned purposes.

On the same day, the chancellor referred this petition to one of the masters, to examine into the allegations and matters contained in it, and report thereon.

On 30 June, 1815, the master reported, and stated the condition of the property and the income which it produced; the debts of the petitioner; the opinion of the master, that they had been contracted for the support of his family, and that the rents and profits were insufficient for the reasonable and proper support of the petitioner and his family according to their situation in life.

On 3 July, 1815, the chancellor issued an order, reciting all the circumstances of the case, and concluding thus:

"Therefore, on motion of Mr. S. Jones Jr. of counsel for the petitioner, it is ordered that the assent of the chancellor be, and hereby is, given to the sale, by the petitioner, of the said house and lot in the Fifth Ward of the City of New York, and of the eastern moiety or half part of the said premises at Greenwich, in the Ninth Ward of the City of New York, to be divided by the line in the manner for that purpose mentioned in the said petition; and the petitioner is authorized and directed

Page 49 U. S. 501

to sell and dispose of the same, under and according to the aforesaid acts of the legislature in that behalf, the said sales to be made under the direction of one of the masters of this court, and the petitioner to proceed in making the sales and conveyances of the said premises, so to be sold, in the manner for that purpose in and by the said acts prescribed and directed."

"And it is further ordered, that the purchase moneys for the said premises so to be sold be paid by the purchasers to the said master, to be disposed of by him as hereinafter directed. And it is further ordered and directed, and his Honor the chancellor hereby doth authorize, order, and direct, that so much of the net proceeds, to arise from such sales, as may be necessary for the purpose, be applied, under the direction of one of the masters of this Court, in and for the payment and discharge of the debts now owing by the petitioner, and to be contracted for the necessary purposes of his family, to be proved before the said master; and the costs, charges, and expenses of the petitioner, on his petition in this matter, and the proceedings had, and to be hereafter had, under or in consequence thereof; but so, however, and it is further ordered and directed, that the net proceeds of the said eastern moiety of the said premises at Greenwich aforesaid, or so much thereof as shall be necessary for that purpose, be applied in the first place, and before and in preference to any other appropriation or application thereof, to pay and satisfy to the President and Directors of the Manhattan Company aforesaid the aforesaid debt or sum of four thousand four hundred dollars, with the interest thereof up to the time of such payment, or such part and balance of the said debt, and interest, as shall not have been otherwise paid or satisfied. And it is further ordered and directed, and his Honor the chancellor hereby doth further order and direct, that the residue of the said net moneys, and proceeds arising from such said sales, after the said debts, costs, charges, and expenses shall be discharged and paid by and out of the same, be placed out at interest, on real security, in the City of New York, in the name of the petitioner as trustee, under the direction of one of the masters of this Court, upon the following trusts, to be expressed upon the face and in the body of the said securities respectively, whereon the same shall be so placed, that is to say, upon trust that the interest and income thereof, or so much of the same as may be required for that purpose, be applied, from time to time, in and for the suitable and proper maintenance and support of the petitioner, and his wife and children, already born and to be hereafter born, according to their situation in life, and for the suitable education

Page 49 U. S. 502

of the said children; and upon further trust, that the principal sum or sums, with the securities whereon the same may be vested or placed, and may stand, shall be held, and he, the petitioner, as trustee, stand and be possessed thereof in trust, for the benefit of the lawful issue of the petitioner who shall be living at the death of him, the petitioner, according to the trusts upon which the unsold moiety of the said premises at Greenwich aforesaid, in the aforesaid acts of the legislature mentioned, are or shall be held; and so, and in such manner, that the said interest and income of the said trust moneys, funds, and securities, or so much thereof as may be requisite thereto, shall be appropriated, applied, and secured in the first instance, and exclusively, to the suitable maintenance of the family of the petitioner, according to their situation in life, and the suitable education of his children, and shall not be subject or liable to or for the engagements, debts, or control of the petitioner, or for any other purpose whatsoever than the said purposes hereby designated and authorized; provided that any surplus of the said interest and income, that may be left and remain after the said objects and purposes, hereby designated as aforesaid, are first fully and liberally fulfilled and accomplished, according to the true meaning hereof, shall be for the use and at the disposal of him, the petitioner."

"And it is further ordered that the master, under whose direction the said sales should be made, and the debts paid, and surplus proceeds placed out as aforesaid, report to this Court the proceedings that may be had in the premises, and the securities that may be taken therein, pursuant to this order, with all convenient speed; and that all and every person or persons who are, or is, or may become interested therein, have liberty to apply to this Court, at any time or times hereafter, for any further or other orders or directions in or touching the premises."

On 12 March, 1816, Clarke again applied to the legislature. The petition is short, and may be inserted.

"To the Honorable the Legislature of the State of New York. The memorial and petition of Thomas B. Clarke, of the City of New York, respectfully showeth:"

"That his Honor, the chancellor, under the act 'for the relief of Thomas B. Clarke,' passed April 1, 1814, and the act 'supplemental to the act for the relief of Thomas B. Clarke,' passed March 24, 1815, did order and direct that the said Thomas B. Clarke should sell the eastern moiety or half part of the premises in the said act and order mentioned."

"And your petitioner further shows, that, owing to the scarcity

Page 49 U. S. 503

of money, and the present low price of property, no sale can be made without a great sacrifice."

"Your petitioner therefore prays that he may be allowed to mortgage such part of the property in the said act mentioned as the chancellor may appoint, and for the purposes mentioned in the said acts and order, and that your petitioner be allowed to bring in a bill for that purpose. And he will ever pray, &c."

On 29 March, 1816, the legislature passed the following act:

"An act further supplemental to an act entitled 'An act for the relief of Thomas B. Clarke.'"

"Be it enacted by the people of the State of New York represented in senate and assembly that the said Thomas B. Clarke be, and he is hereby, authorized, under the order heretofore granted by the chancellor or under any subsequent order either to mortgage or to sell the premises which the chancellor has permitted or hereafter may permit him to sell as trustee under the will of Mary Clarke, and to apply the money so raised by mortgage or sale to the purposes required or to be required by the chancellor under the acts heretofore passed for the relief of the said Thomas B. Clarke."

On 27 May, 1816, Clarke presented another petition to the chancellor, again reciting all the facts in the case, and praying his assent to a mortgage.

On 30 May, 1816, the chancellor passed the following order:

"It is ordered, that the said petitioner, under the act entitled "An act further supplemental to the act entitled An act for the relief of Thomas B. Clarke,'" passed March 29, 1816, be and he is hereby authorized, so far as the assent of this court is requisite, to mortgage, instead of selling, the lands he was authorized to sell in and by an order of this Court of the third day of July last, and that the moneys to be procured, and the debts to be extinguished by such mortgage or mortgages, be appropriated and adjusted in the same manner and under the same checks, and not otherwise than is prayed for in and by said order, and the said order is to apply to and govern the application of the moneys to be raised by mortgage, equally as if the same had been raised by a sale of all or any of the lands authorized to be sold in and by the said order."

"May 30, 1816 J. KENT"

On 8 March, 1817, Clarke presented another petition

Page 49 U. S. 504

to the chancellor, representing the propriety and expediency of dividing the estate by an eastern and western, instead of a northern and southern, line, and of granting to the petitioner the power to sell or mortgage the southern, instead of the eastern, moiety. This being referred to James A. Hamilton, a master in chancery, he reported that it would be expedient to divide the estate by a line running from east to west, passing through Twenty-sixth Street.

On 15 March, 1817, the chancellor passed the following order:

"On reading and filing the report of James A. Hamilton, esquire, one of the masters of this court, bearing date 11 March, 1817, by which it appears that no part of the northern moiety of the estate at Greenwich mentioned in the petition of the above-named petitioner, the same being divided into two equal parts by a line running from east to west through a street called Twenty-sixth Street, has been either sold or mortgaged by the said Thomas B. Clarke, and it appearing to this Court reasonable and proper that the prayer of the said petitioner should be granted, it is thereupon ordered, on motion of Mr. S. Jones, solicitor for the petitioner, that the said petitioner be and he is hereby authorized to sell and dispose of the southern moiety of the said estate, the same being divided by a line running east and west through the center of Twenty-sixth Street aforesaid, together with the lot in Broadway, instead of the eastern moiety of the said estate, as permitted and directed by the orders heretofore made in the premises. And it is further ordered that the said Thomas B. Clarke be and he hereby is authorized to mortgage all or any tract or parts of the said southern moiety of the said estate if in his judgment it will be more beneficial to mortgage them than to sell the same. And the said Thomas B. Clarke is further authorized to convey any part or parts of the said southern moiety of the said estate in payment and satisfaction of any debt or debts due and owing from the said Thomas B. Clarke upon a valuation to be agreed on between him and his respective creditors, provided nevertheless that every sale, and mortgage, and conveyance in satisfaction, that may be made by the said Thomas B. Clarke in virtue hereof, shall be approved by one of the masters of this Court, and that a certificate of such approval be endorsed upon every deed or mortgage that may be made in the premises. And it is further ordered, that the said Thomas B. Clarke shall be, and he is hereby, authorized to receive and take the moneys arising from the premises, and apply the same to the payment of his debts, and invest the surplus

Page 49 U. S. 505

in such manner as he may deem proper to yield an income for the maintenance and support of his family."

On 9 April, 1816, Clarke mortgaged the premises in question, with other property, being in the southern moiety of the estate, to Henry Simmons, which mortgage was discharged in 1822.

Having given this historical account of the facts of the case, let us now see what occurred upon the trial in the court below.

It has already been mentioned, that it was an ejectment brought by Williamson and wife against a party in possession of a portion of the property included in the devise of Mary Clarke. The following case was stated for the opinion of the court:

"Circuit Court, U.S., Southern District New York"

"CHARLES A. WILLIAMSON AND CATHARINE H., HIS WIFE v. JOSEPH BERRY"

"This is an action of ejectment for the undivided third part of eight lots of land, in the Sixteenth Ward of the City of New York."

"The pleadings may be referred to as part of this case."

"The plaintiffs claimed under the will of Mary Clarke."

"The plaintiffs gave in evidence an exemplified copy of the will of Mary Clarke, proved in the supreme court, of which a copy is hereto annexed."

"It was then admitted by the defendant's counsel, that Mary Clarke was seized of the premises described in the said will as"

"all that part of my said farm at Greenwich aforesaid, called Chelsea, lying to the northward of the line herein before directed to be drawn from the Greenwich Road to the Hudson River, twelve feet to the northward of the fence standing behind the house now occupied by John Hall, bounded southerly by the said line, northerly by the land of Cornelius Ray, easterly by the Greenwich Road, and westerly by the Hudson, including that part of my said farm now under lease to Robert Lenox."

"At the time of the making of the will, and thence until her death, which took place in July, 1802, that the said premises included the eight lots claimed herein; that the said trustees, Benjamin Moore and Charity, his wife, and Elizabeth Maunsell, are all dead -- Mrs. Moore having died since 1830, the other two previously; that Thomas B. Clarke was married in 1803; that his wife died in August, 1815, and himself on 1 May, 1826; that he left three children surviving him, Catharine, Isabella, and Bayard; that he had four other children, all of whom died before him without having had any

Page 49 U. S. 506

children, and unmarried; that Catharine was born on 5 June, 1807, and was married to Charles A. Williamson, on 10 May, 1827; that Isabella was born on 11 June, 1809, and was married to Rupert J. Cochran on 4 June, 1835; that Bayard was born on 17 March, 1815; all of whom are still living. It was also admitted that the defendant was the actual occupant of the premises at the commencement of this suit, on 6 March, 1845; and that one-third of the premises claimed was of greater value than two thousand dollars."

The plaintiffs thereupon rested.

The defendant's counsel then proved the acts of the legislature, the deed of Clement C. Moore the petitions to the chancellor, the master's reports, and the orders of the chancellor (excepting only the order endorsed on petition), of which copies are hereto annexed.

The defendant's counsel then offered in evidence the deed from Thomas B. Clarke to George De Grasse, of which the following is a copy:

"This indenture, made this 2 August, in the year of our Lord 1821, between Thomas B. Clarke, of the City of New York, gentleman, of the first part, and George De Grasse of the second part. Whereas the said Thomas B. Clarke, by virtue of sundry conveyances, acts of the legislature, and orders of the Court of Chancery of the State of New York, hath been empowered to sell, or mortgage, or convey, in satisfaction of any debt due from him to any person or persons, the southern moiety of the estate at Greenwich, devised by Mary Clarke, deceased, for the benefit of the said Thomas B. Clarke and his children, or any part thereof. Now, therefore, this indenture witnesseth that the said Thomas B. Clarke, in consideration of the premises, and of two thousand dollars lawful money of the United States to him in hand paid by the said party of the second part, at or before the sealing and delivery of these presents, the receipt whereof is hereby acknowledged, hath granted, bargained, sold, aliened, enfeoffed, conveyed, and confirmed, and by these presents doth grant, bargain, sell, alien, enfeoff, convey, and confirm unto the said party of the second part, his heirs and assigns, forever, all those lots of ground situate, lying, and being in the Ninth Ward of the City of New York, known and distinguished on a certain map of the property of the said Thomas B. Clarke,"

&c.

(The deed then described twenty-nine lots, with a covenant of general warranty.)

James A. Hamilton joined in this deed, as a trustee for Clarke's life estate, of which he had become possessed.

Page 49 U. S. 507

This deed was objected to by the plaintiffs' counsel, for two reasons:

1. Because not approved by a master.

2. Because not shown to have been given upon a sale for cash.

The objections were overruled, and the plaintiffs' counsel excepted.

The deed was then read in evidence, as was also a deed from George De Grasse to Margaret Van Surlay. (It is not necessary to insert this deed.)

The defendant's counsel then rested.

The plaintiffs' counsel then offered to read the petitions to the legislature, the extracts from the journals of the two houses, and the order endorsed on petition, of which copies are hereto annexed. They were objected to by the defendant's counsel, the objection sustained, and the plaintiffs' counsel excepted.

The plaintiffs' counsel then proved the mortgage executed by Thomas B. Clarke to Henry Simmons, of which the following is a copy. (It is not necessary to insert this mortgage.)

The plaintiffs' counsel then offered evidence to show the consideration of the deed from Clarke to De Grasse. The defendant's counsel objected; the objection was overruled, and the defendant's counsel excepted.

The plaintiffs' counsel then called as a witness James A. Hamilton, who testified that he knew Thomas B. Clarke and George De Grasse; that in 1821, and for some years previous, he was a master in chancery in the City of New York; that the order of March 15, 1817, was put into his hands for execution, and that Clarke and De Grasse applied to him to approve the deed from Clarke to De Grasse above set forth; that on that occasion, which was at or about the time the deed was given, they explained to him the consideration of the deed, and that the consideration for which it was given was some wild lands in Pennsylvania or Virginia, and an account for articles previously furnished to Clarke by De Grasse, out of any oyster house which he kept, including some items of money let. On thus ascertaining its consideration, he refused to approve the deed.

On his cross-examination, he said that he could not state the time at which the transaction occurred, except by reference to the deed; he had more than one interview with Clarke and De Grasse, he was sought by them more than once; he did not consider the execution of the life estate deed a matter of any interest; he executed it as trustee. He did not remember at all a person by the name of James Cunningham, and on being

Page 49 U. S. 508

shown the signature of James Cunningham, as subscribing witness to the deed for the life estate, witness said that his recollection of the person was not thereby revived. He received from De Grasse no fee. It was his impression that the account for articles furnished at the oyster shop was exhibited. He held the life estate of Clarke in the premises as trustee for Clarke. His impression was that Clarke filled up his own deed to De Grasse, and to obtain his sanction called upon witness; he was not certain that De Grasse was present upon that occasion. He did not recollect that De Grasse was present when the deed for life estate was executed, but he recollected that both Clarke and De Grasse came together to witness' office more than once on the subject, and he was besought by them frequently to approve the deed. In answer to a question by defendant's counsel what evidence he had of the insufficient value of the lands which formed part of the consideration, the witness stated that he had evidence enough then, though he did not recollect it now, that the lands were worthless tax lands. There might have been some money charged in De Grasse's account against Clarke; the whole account was for articles furnished previously. He did not recollect that there were any notes forming part of the consideration of the deed from Clarke.

The plaintiffs' counsel then proved that seven of the lots in suit, viz., numbers 5, 6, 7, 41, 42, 43, and 45, were reconveyed to De Grasse on the 31st of October, 1844.

The defendant's counsel then proved that lot number 44 had been conveyed to Samuel Judd.

They also proved the bond of Clarke to Simmons, referred to in the aforesaid mortgage to Simmons, and called Henry M. Western, who, being shown two endorsements on the said bond, as follows:

"Received, New York, October 18, 1821, from Mr. George De Grasse, one hundred dollars on account of the within bond."

"100 H. SIMMONS"

"Received of George De Grasse two hundred and fifty dollars, being in full for principal and interest, and all other claims and demands on account of the within bond, and also of the mortgage therein mentioned, for which mortgage I have this day entered satisfaction of record."

"H. SIMMONS"

"New York, March 28, 1822"

"Witness: H. M. WESTERN "

Page 49 U. S. 509

testified that he was a subscribing witness to the last, which he wrote; but that he recollected nothing of the transaction but from the paper.

The plaintiffs' counsel then offered to prove --

(1) That the acts of the legislature were not for the benefit of the infants, but for the benefit of Thomas B. Clarke merely.

(2) That the orders of the chancellor had the effect to take the proceeds of their future interest in the property, and to apply the same to the father's debts, without giving them any benefit, by support or otherwise, out of the income of the life estate in other parts of the property.

(3) That, under the acts and orders, he actually aliened the lot on Broadway, and all of the southern moiety of the Greenwich property, excepting two lots, and that none of the children received any benefit from such alienation.

(4) That the whole of this property was mortgaged or conveyed for old debts; that no proceeds were ever invested, or secured, or even received from the grantees or mortgagees.

(5) That, so far from providing for the children, or protecting the estate, he suffered a large portion of the northern moiety to be sold for assessments, and was proceeding to dispose of the northern moiety for twenty-one years, when, on 31 March, 1826, a bill was filed against him on behalf of the children, and an injunction issued.

(6) That the plaintiff, Mrs. Williamson, was, from the death of her mother in August, 1815, supported entirely by one of her aunts, and that after about two years from the mother's death, the other children were supported by their friends, and were entirely neglected by their father, and that this was notorious in the City of New York, and would have been immediately known to anyone making inquiry.

The defendant's counsel objected; the objection was sustained, and the plaintiffs' counsel excepted.

A verdict was then taken for the plaintiffs for one undivided third part of the eight lots, subject to the opinion of the court upon the questions of law, with power to enter a verdict for defendant, if such should be the opinion of the court, and with liberty to either party to turn this case into a special verdict or bill of exceptions.

On 18 May, 1846, the judges of the circuit court pronounced their judgment upon the four following points, viz.:

1. Under the will of Mary Clarke, the first-born child of Thomas B. Clarke, at its birth, took a vested estate in remainder, which opened to let in his other children to the like estate as they were successively born.

Page 49 U. S. 510

2. This estate would have become a fee simple absolute in the children living on the death of T. B. Clarke, the first day of May, 1826, and it is not important now to decide whether the trustees took a fee, under the will, in trust to convey to the children after his decease, or a fee for his life, as in the latter case the estate would vest in possession in the children at the death of T. B. Clarke, and in the former case the law would presume an execution of this trust by the surviving trustee on the death of T. B. Clarke, or the trust would be executed in 1830, by force of the Revised statutes.

3. The several offers of the plaintiffs to give parol evidence to the jury touching the objects and operation of the acts of the legislature, referred to in the case, or the effect of the orders of the chancellor therein stated upon the interests of the children of T. B. Clarke, or the failure of T. B. Clarke to apply or secure the proceeds of the devised estate, when disposed of by him, to and for the benefit of his children, or the consideration on which the devised estate was disposed of by T. B. Clarke, or his neglect to protect the estate from sacrifice for assessments &c., or to provide for and support his children, were properly overruled by the court, with the exception of such particulars included in those offers as may be embraced in the points hereafter stated, upon which the judges are divided in opinion.

4. The acts of the Legislature of the State of New York, of April 1, 1814, March 24, 1815, and March 29, 1816, referred to in the case, are constitutional and valid.

But the judges are divided in opinion upon the following points presented by the case:

1. Whether the acts of the legislature, stated in the case, devested the estate of the trustees under the will of Mary Clarke, and vested the whole estate in fee in Thomas B. Clarke.

2. Whether the authority given by the said acts to the trustee to sell was a special power, to be strictly pursued, or whether he was vested with the absolute power of alienation, subject only to reexamination and account in equity.

3. Whether the orders set forth in the case, made by the chancellor, were authorized by and in conformity to the said acts of the legislature, and are to be regarded as the acts of the court of chancery empowered to proceed as such in that behalf, or the doings of an officer acting under a special authority.

4. Whether the chancellor had competent authority, under the acts, to order or allow such sale or conveyance of the estate

Page 49 U. S. 511

by the trustee, as is stated in the case, or any other consideration than for cash, paid on said conveyance.

5. Whether the deed executed by Thomas B. Clarke to George de Grasse, for the premises in question, being upon a consideration other than for cash paid on the purchase, is valid

6. Whether the said deed is valid, it having no certificate endorsed thereon that it was approved by a master in chancery.

7. Whether Thomas B. Clarke, having previously mortgaged the premises in fee to Henry Simmons, had competent authority to sell and convey the same to De Grasse.

8. Whether the subsequent conveyance of the premises as set forth in the case, made by George De Grasse, rendered the title of such grantee, or his assigns, valid against the plaintiffs.

It is thereupon, on motion of the plaintiffs, by their counsel, ordered that a certificate of division of opinion, upon the foregoing points, which are here stated during this same term, under the direction of the said Judges, be duly certified, under the seal of this Court, to the Supreme Court of the United States, to be finally decided.

Page 49 U. S. 531

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