Obert v. Obert

On bill for partition, injunction granted, restraining tho party in possession from committing waste by cutting timber. Tf the title.of the complainant in a bill for partition is denied, the court may retain the bill to give him an opportunity to try his title at law. An equitable partition may be made so as to assign a portion of the land on which improvements have been made to him who mp.de them; and if he has cut off the timber-from a part of tlie land adjoining the part improved, the court may direct that the land from which the timber has been cut be valued as it was with the timber on it and included in tho assignment to him. In special cases, one tenant in common may, on Iho application of the other, be injoined from committing waste; but the jurisdiction is sparingly exercised. On bill for partition, by a tenant in common owning a twentieth pari, an injunction was granted against the tenant in common in possession, restraining him from cutting timber. His answer showed that he was owner of eight twentieths ; that he had made improvements to the amount of $2000; and that he only intended to cut the wood and timber from two acres near the barn, which he had commenced doing when the injunction was served ; and he denied all intention to commit waste. The injunction was dissolved-

The bill is for the partition of a farm of two hundred acres, of which, it claims, that George Obert, deceased, died seized, among the heirs at law of the said decedent; and for an injunction, restraining Peter Obert, who is in possession, from cutting wood and timber. The complainant, Throckmorton Obert, is one of five children of a son of the - decedent who died in the life time of the decedent; and the decedent left four children him surviving, viz. Peter Obert, Paul Obert, Nancy Obert and George Obert. The bill states, that the decedent died in March, 1820, and that the farm descended as follows : one fifth to each of the said children, and one fifth to the complainant and his brothers and sisters, as the heirs at law of the deceased son John Obert; that after the death of his grandfather, the complainant’s brother George died, whereby his interest was increased to one twentieth of the farm. That Peter Obert possessed himself of the whole, and claimed to hold it all adversely to the other heirs. That .the complainant brought ejectment for his share, and that one Mahlon Hammell, a tenant of Peter, was admitted a defendant in that suit; that tfae'said Hammell set up, in defence, a holding under Peter, and á deed from D. Smith and wife to Peter, dated June 5th, 1822, in consideration of $500; and a deed from Peter, as administrator of the said George Obert, deceased, to Smith, dated June 4th, 1822, for $500, purporting to have been made in pursuance of an order of the orphans’ court of Middlesex county, to sell lands for the payment of debts. That a verdict was rendered for the plaintiff in ■the ejectment, on which judgment was entered in February, 1843; and that, by writ of possession, the .complainant was put in legal possession of his twentieth part undivided. That, during the ejectment, his sister Jane.and her husband conveyed her twentieth to the complainant; and his aunt Nancy conveyed her fifth to him; and Paul Obert, as he is informed and believes, conveyed his -fifth, to -the defendant Pe.ter: so that the complainant now owns six twentieths, the defendant Peter eight twentieths, George Obert, somof the decedent, four twentieths, Nancy, sister.of the complainant, and her husband, Samuel Magie, one twentieth, and Susan, a sister of the complainant, and her “husband, Stephen Verity, one twentieth. That William Simpson claims, through the defendant Peter, some interest in.the farm. 'The bill .then charges, that the personal estate of the decedent was sufficient to pay his debts; that the deed from the defendant Peter,, as administrator, to Smith, and all the proceedings previous to the sale, were fraudulent and void; and that Smith was an irresponsible person, hired by Peter to bid off the property at the administrator’s sale and convey it to Peter. That Peter has refused to concur in making a partition, and was, at the filing of the bill, either by himself or in connexion with Simpson, felling and carting,off the wood and timber, and disposing of it to his own use; and was committing great waste and other irreparable injury and mischief to the premises. The bill prays an account of the wood cut, and a partition, and an injunction against cutting and carting off the wood and timber, and from committing any other waste; and that the title of the complainant, having been settled at law, may be confirmed and quieted ; and that proper conveyances may be made. And that, in case the court shall deem it necessary to stay the general partition until the titles may be settled as between said parties and claimants, then, that the sitare of the complainant, or at least his twentieth settled in said ejectment, may be now divided off, without waiting for the settlement of all or any of the questions that may arise between the other co-tenants. On a petition presented to the chancellor before the filing of the bill, saying that the complainant liad not time for the proper drafting of the bilí, and stating the genera! facts contained in the bill, and that neither Peter nor Simpson, as the petitioner was informed and believed, was able to respond in damages, both being insolvent and bankrupt, an injunction was granted, February 7th, 1844, injoining Peter and Simpson, their workmen, <fcc. from cutting down or destroying the timber or oilier trees growing on the promises, or any part thereof, and from taking any wood or timber lying thereon, or any part thereof, and from doing further waste. The separate answer of Peter Obort, filed July 11th, 1844, admits that he administered; states that the personalty was insufficient to pay the debts; and that the proceedings preparatory to a sale of the lands were all just and bona fide. States that on the 3d .Tune, 1822, he sold the farm to Smith, for $500, without any secret or other agreement that Smith should buy in the same for him. That at the sale the farm stood for a long time on the bid of James Dunham of $300. That -he took extraordinary pains to induce bidding; that he urged Smith, among others, to buy, telling him and thorn that the property was worth more: and that finally, when all other inducements seemed to fail, he told Smith he need not run any risk •, and that if he should buy the farm at less than $800, and should become tired of his bargain, he, the defendant, would take it off his hands; and that the farm, after all others had ceased to bid, was struck off to Smith for $500, no .one bidding more. That on the 4th June, 1822, he conveyed to Smith in fee, and not on any secret or other trust or confidence that Smith should hold for him, the defendant; that Smith bought bona fide, and with lawful and just right to retain it.- That Smith did repent,. and apprehended trouble from the second wife, the widow of the decedent, and proposed to him, Peter, to convey to him, for the same sum ; but he denies that Smith was under any obligation, moral, legal, secret or otherwise, to convey to him; and that on June 5th Smith conveyed to him; and he submits that in this there is nothing repugnant to law or equity. He states the principal vouchers showing the debts of the decedent, and that he is unable to produce the other, vouchers; that all the vouchers were delivered to the surrogate to enable him to state the administration account, and that very few, if any of them, other than those he has set out, were ever returned to him; and that he knows not what has become of them. That the lands of which the decedent died seized were in detached pieces, and but a small portion of them was enclosed by fence of any sort. That some of them were scarcely worth enclosing, the wood having been cut off and wasted ; and the land, in general, not being arable. That after he bought from Smith, he borrowed money from Ann Tan Beuren, and gave his bond for it, and a mortgage on the premises ; describing them as in the administrator’s deed to Smith, and in the deed from Smith to him. That, almost immediately thereafter, several persons (naming them) claimed different portions of the land included in the mortgage as theirs, and as not belonging to the estate of the decedent. The claimants and portions so claimed are as follows: Heirs of Robinson Thomas, 14' acres. David Freeman, J. S. Yanarsdalen, Henry Obert, 8,40 acres. 7,o acres. 35,00 acres. That on a careful survey and examination, it was found that these several portions belonged to the claimants, respectively, and were no part of the estate of the decedent. That on the 10th May, 1835, he bought the portion owned by Freeman, for $45; and it was conveyed to him by Freeman and wife, by deed of that date; that on the 15th December, 1829, he bought the portion owned by Yanarsdalen, for $50, and it was conveyed to him by Yanarsdalen, by deed of that date; that on the 20th April, 1830, he bought the portion owned by Henry Obert, and it was conveyed to him by Obert’s attorney, thereunto lawfully authorized, by deed of that date, for $116 ; and that he made a verbal contract with the heir» of Robinson Thomas for their portion, but has not yet been able to obtain a deed therefor. That, after deducting these portions, the farm contains but about 120 acres, being all the lands of which the decedent died seized, except certain lots (describing them) not brought in question by the bill- That on the 15th February, 1834, he, by deed, for a valuable consideration, conveyed to Lewis Slover about 70 acres of the premises in the bill mentioned, and that Slover took possession, and built a dwelling house and made divers improvements thereon, and resided there; and that the same has been since, by several mesne conveyances, conveyed to William Simpson j and that Simpson is now the owner of it, and has owned it since February, 1839. He says that in March, 1837, he demised to one George Hammell a part of the premises mentioned in the bill, (describing it,) containing about 60 acres, and that said Hammell was never in possession of any other of the real estate of the decedent, George Obert, since the death of said Obert. He admits that in December, 1842, the complainant obtained a verdict in ejectment for a twentieth part of the lands of which Hammell was in possession under the demise aforesaid, and that judgment was entered on the verdict; but he insists that the verdict was unjust, and founded, in a great measure, on false and garbled testimony, and a suppression of the truth: and that the verdict and judgment cannot be conclusive on him in equity; that the complainant has thought fit to give to a court of equity, by his bill, cognizance of the whole matter, and that he cannot recover in this court contrary to equity. That Ann Yan Beuren died in September, 1839; and that her administrator foreclosed the mortgage given by him, Peter, to her; and that on the 19th October, 1842, a final decree for sale was made; and that the sheriff, by virtue of a fi. fa. issued under that decree, sold the premises to the said William Simpson, and conveyed the same to him, by deed dated May 19th, 1843, for 0495; being the whole of the premises mentioned in the complainant’s bill. That Simpson resides in New-York, and is universally believed to be a man of large estate, real and personal; and that at no time lias he been suspected or believed to be a bankrupt or insolvent. That he, the defendant Peter, is in possession of the premises, by the permission of Simpson and- at his will; that Simpson is his son-in-law, and that he has charge- of the premises for Simpson. That when he bought the premises-from Smith and took possession, the buildings were in a ruinous condition, the house ready to fall down, being propped up by poles and stakes, the fences destroyed, and every thing gone to ' wreck. That the defendant Peter built a new house, barn and out houses, erected fences, and bought lime for the land; and that his expenses, exclusive of his labor, exceeded $2000. He denies any waste of the premises, or of the wood or timber growing thereon, or any threat to commit waste. He says that to pay a tax of eight dollars, buy manure for the land, and for fencing stuff, he concluded to clear a small piece of about two acres; and that,' accordingly, in the early part of the winter before, he engaged three men - to cut wood on the said two acre strip near the barn. That wood,- not exceeding eight or ten cords, was cut and carried away, and that about three quarters- of a cord of the cut wood now remains on the ground; that he-intended to clear the whole of said two acres, when the injunction was served on him;, and that-good husbandry and convenience required said strip to be cut off. He says that the whole real estate was insufficient to pay the debts, and that there still remains due to him $1131 95, with interest from July, 1825, from the estate of the decedent; and he annexes to his answer a copy of his final account, allowed by the orphans’ court, showing that the said sum is still due him. He denies that Smith was in any shape an agent for him in the purchase, or that Smith bought under any device, arrangement or understanding with him; and denies that the supreme court ever adjudged the deed from him, as administrator, to Smith, to be void;. and denies that he was ever made a defendant in any action of ejectment brought by the complainant for the recovery of the premises, or any part thereof. The answer of William Simpson states,, among other things not material to our present purpose, that in February, 1839, he bought a tract of 70 acres (describing it) from Peter Obert, who was in possession thereof as owner in fee, he having bought it from Lewis Slover; and that, f]gr a valuable consideration paid by him to said Obert, Obert- conveyed to him the said 70 acres. That said tract is a part of the land mentioned in the complainant’s bill. Thai, when he so bought, lie had no knowledge, belief or suspicion of the complainant’s claim thereto, or to any part thereof ; but, perceiving and understanding that the premises had been sold under au order of the orphans’ court, he believed that all the interest of George Obert, deceased, passed to the purchaser, and was, by mesne conveyances, transmitted to and vested in Peter Obert, son of George Obert, deceased, and lie relied on the public and judicial acts of the orphans’ court.. He denies all knowledge of any fraud in the accounts of the administrator or in the order for sale. States his purchase at the sheriff’s sale on the foreclosure of the Van Beuren mortgage, and that the said mortgage and decree included the lands lie had bought of Peter Obert: and that, to protect himself, he bought them at the sheriff’s sale, for $495, and paid the money to the sheriff; that the sheriff by deed of May 19th, 1843, conveyed the said premises to him in fee; that the lands so conveyed to him by the sheriff include all the lands mentioned in tiie bill. That lie does not know whether Magio and wife, or Nancy Obert, made the conveyances to the complainant of their shares, as stated in the bill: but insists that if they did, the conveyances are void as against him. Says that neither Nancy nor Mngie and wife have been, either actually or constructively, in possession, since June., 1822: and that the premises have been held since that time by divers persons adversely to them. That the defendant Peter Obert is now in possession by his permission and at his will. lie asserts the right to cut, but denies that any waste has been committed ; says he put the premises in the possession and care of the defendant Peter Obert, and instructed him to use the same as good husbandry requires; and that he is of opinion that the strip of woodland near the barn, of about two acres, on which alone some wood has been cut, ought to be cleared. He says that it appears from the bill itself, that the complainant has not exhibited his claim to the lands within twenty years next after his title or cause of action, if he had any, accrued : and that, being an innocent purchaser for a valuable consideration, and without notice of such dormant or concealed claim, he pleads the statute of limitations in bar. He denies his bankruptcy or insolvency, and says he has a clear income of more than sufficient to support his family, from unincumbered real estate. On . the 24th December, 1845, a petition on the part erf the defendants was presented to the court, stating the1 filing of the bill of the complainant,, and the petition for an injunction, and ■the answers of the defendants ; and that, in the term of October, 1844, the defendants, by their counsel, moved before the late chancellor that the injunction be dissolved, for reasons stated in the petition; and that the argument of the motion was had in that.term ; and that the chancellor left Trenton without announcing any decision from the bench. That neither the defendants nor their counsel received information of any decision of the chancellor till about three months.thereafter, when .their counsel discovered in the chancery.clerk’s office a writing, .signed by the .chancellor, as follows-: “Let the injunction be .modified, so as to limit it to timber not necessary for the ordinary uses of the farmdated October 28th, 1844. The petition further states, that no more formal order was -prepared for the signature of the late chancellor. That if the .said writing is.to be considered as an order of the court, the petitioners consider it erroneous. That the injunction has .not been modified, but remains in its. original shape. It .prays a rehearing, or else that the court will entertain,' ab origine, the motion to dissolve the injunction. A. certificate is annexed to the petition, signed by two counsel, saying that they are of opinion-that a rehearing ought to be granted as prayed in the petition. An order was thereupon made, that a motion to dissolve the .injunction be brought ..to argument on ten days’ notice. The motion was argued at the March term, 18.46,