1831. IN THE MAT TER OF JANE $6,000, must mean the whole title. HUNTER. This, however, is not so. The fair construction of the covenant that the lessee should be at liberty to purchase, by paying The case of Ketchum v. Evertson, 13 J. R. 358, is different. In that case the covenant was, to give a deed. So also in the case of The Corporation of Schenectady v. Van Eps, 12 J. R. 436. The matter now before the court is more like the case of Jones v. Gardner, 10 J. R. 267; where the covenant was, to give a sufficient deed to vest a title in the defendant. The court held the wife must join in the deed; and that a covenant to convey the title meant the legal estate in fee, free and clear of all valid claims, liens, and incumbrances. But a doubt, at first, arose in my mind:-Suppose the lessor was living, and a bill was filed against him for a deed, how could the court compel a conveyance, free from the dower of the wife, in case she refused to join her husband in the deed? In such a state of things, there would be a difficulty. According to some old cases, if the husband agreed to convey even his wife's estate, the court would compel him to perform in specie, because it was presumed he had his wife's consent. There are instances of the husband's being committed to prison until the wife should convey; but, on making it appear that he could not prevail on her to join in the deed, the court, from necessity, discharged him. Sugden on Vendors, 151. Lord Eldon, however, in Emory v. Ward, 8 Ves. 505, expressed a strong disinclination to follow that doctrine. He shows it would be "compelling the husband to compel his wife" to execute a deed or to levy a fine; which are voluntary acts. And the same doctrine has undergone a thorough examination by Sir Thomas Plumer, V. C., in the case of Howell v. George, 1 Madd. R. 1. In that case, a specific performance was reAnd see Martin v. Mitch-fused. The consequence of such a refusal is, however, to leave ell, 2 Jac. & the husband exposed to an action at law for damages, upon his W. 425-6. covenant. And so here, the lessee has a right of action against the infant heirs upon the covenant of their father. Is it, then, proper to expose them to this consequence? I think not; more especially as the difficulty can here be obviated. For the same, 1 J. C. widow has placed herself within the power of the court by her petition, and can now be compelled to join in the conveyance; Tabele v. R. 45. the 1831. IN THE MAT TER OF JANE Mr. H. M. Western, for Daniel Pearson. Such of the cases, which have been cited, as would seem, at first, to bear upon matter, are cases at law. Van Eps v. Mayor, &c. of Schenectady, relates to a corporation, and is therefore not in point. The Hunter. same may be said of Ketchum and Sweet v. Evertson, as it relates to a trustee. Ours is a case where a widow has an interest; and she voluntarily offers to join. And, even if she did not, this is a matter which should be litigated between her and the children. The intention was, that Pearson should be allowed a clear title, if he purchased; and, the intention must govern. He is entitled to a conveyance, clear of dower and other incumbrances. He ought not to bear the costs, for he has not caused them. THE VICE-CHANCELLOR. (After adverting to the circum- July 27. stances of the case.) The first objection taken in this case is, that the lessee has not performed the precedent conditions of the lease, by erecting fire proof buildings and paying the rent. I am of opinion, however, he has substantially done so. In the next place, it is said, the covenant to sell is not mutual: the lessee not being bound to purchase; and, that as this is a "one-sided" agreement, the court will not decree a specific performance. The cases of Parkhurst v. Van Cortlandt, 1 J. C. R. 282, and Benedict v. Lynch, ib. 370, have been referred to as establishing this point. Chancellor Kent there intimated that such was the rule; but, in a subsequent case in the court of errors, Clason v. Bailey, 14 Johns. R. 484, he had occasion to review that opinion, which he found to be erroneous, and admits that the point is too well settled the other way to be questioned. The court may, therefore, in a proper case, where there is a covenant on one side and no mutuality, decree a performance. Besides, in a case like the present, it may be peculiarly proper. The rent may have been fixed at $500, as an inducement to the power of purchasing the property. This is a fair inference. It is also contended, that if the lessee is entitled to become the purchaser, at the sum of $6,000, the sale must be subject to the dower right of the widow of the lessor. 1831. BAGGOT V. HENRY, are founded upon mere verbal criticism, slight defect, or omission in matter not material to the cause, and where it is evident the defendant can have no design or intention to suppress the truth or evade a full and fair enquiry. And whenever exceptions of the latter character are brought before me, I shall not hesitate to overrule them; and impose the payment of all such costs as a litigious and vexatious proceeding deserves. I do not make these remarks with reference to the present matter, in particular; but there are several cases before me, partaking more or less, of the character above described: and I have thought it my duty at once to lay down a rule by which I mean to be governed, in regard to all exceptions for insufficiency which may hereafter be brought under my notice. In the matter of the petition of JAMES HOPSON. A party who has obtained his majority, cannot, by petition, call upon the person who had acted as guardian to account. It must be done by a bill. May. 13. 1831. Practice. Guardian ship. In this case, the petitioner had attained the age of twenty-one years; and he prayed his guardian might account, without shewing that any thing was due or in the hands of the person who had acted as guardian. Mr. S. B. H. Judah, for the petitioner. Mr. H. W. Warner, for the guardian, objected: 1st. Because the guardianship was at an end; and therefore, the proceeding was wrong in point of form. 2d. The party who had acted as guardian could only be called upon through a bill of complaint. And, 3d, there was no allegation of any thing being due. Mr. Warner read an affidavit, showing that accounts had been rendered. THE VICE-CHANCELLOR. The petition does not set forth a single circumstance of misconduct on the part of the late guardian. But even if it did, I find no case where a person can be called upon to account through a petition, after the period of his guardianship has ceased. If the petitioner were under age, then, under the rules and practice of the court, a bill would be unne cessary. In this case, the relation of guardian and ward has ceased; and the former is no longer an officer of the court. If the petitioner has any claim, he must file a bill. Motion denied, with costs. 1831. CAROW v. MOWATT. May 14. See In the CAROW, Executor, &c. of MowATT, deceased, vs. MoWATT, A new defendant cannot be added to a suit upon a petition: it must be by a supplemental bill. An administratrix, who has been superseded, will not be allowed to withdraw from a suit in which she is a defendant. 1831. ministrator. THIS was an application, by a petition, on the part of the May 16. public administrator, Silvanus Miller. The petition shewed, that the defendant, Martha Mowatt, had been superseded by Practice. the Surrogate of the city and county of New York, as adminis- Public Adtsatrix of John E. Mowatt, and that Mr. Miller had been appointed, by the same Surrogate, in her place. It specified an amount of funds which were in the hands of the said Martha Mowatt, as administratrix; suggested that the same should be paid to Silvanus Miller; and prayed, that he might be substituted in her place as a defendant in the above suit. Mr. Silvanus Miller, appeared in support of his petition. Mr. Charles G. Troup, for the defendant, Martha Mowatt, 1831. CAROW V. MOWATT. See Carlisle suggested the willingness of his client to part with the funds in her hands, provided she could do it with safety; and her desire to be dismissed from her situation as a defendant. Mr. John Anthon, for the complainant, opposed the prayer of the petition: because Martha Mowatt was now liable for her acts as an administratrix; and, one party could not be thus substituted for another-the first being made a party by the complainant and no relief being prayed for against the proposed new party. THE VICE-CHANCELLOR :-I think this motion has been v. Hardres, rightly opposed by the complainant. Martha Mowatt ought Finch, 233. not to be released from any liability she may have incurred as and Davis v. the administratrix of her late husband; and the complainant is Dee, ib. 243. entitled to call her to an account. I have looked into some authorities to see how far the court can substitute one defendant for another in the summary way required by this petition. The case of Foster v. Deacon, 6 Madd. C. R. 58,* is an authority directly in point. The petitioner in that case was the assignee, for a valuable consideration, of the unascertained interest of the defendant, Deacon, and of his wife; and he prayed to be admitted to take part in the suit as a party defendant. The court permitted the pettiioner to make himself a party by a supplemental bill. In the case before the court, it appears, that the letters of administration which were granted to Martha Mowatt, have been revoked; and that Mr. Miller, the petitioner, has now the right in himself. His course, therefore, is by a supplemental bill; but I think that the complainant should have the preference of filing such a bill. I shall, therefore, order, that the complainant have leave to do so, and thereby make Mr. Miller a party defendant; but if the complainant shall not file such bill within twenty days, then the petitioner may file it, praying to be admitted a party defendant to the suit. After this is done, some order can be made as to the assets in Martha Mowatt's hands: for the purpose of having them brought into court or transferred to the public administrator. But I shall make no order in this respect, until the supplemental bill is filed. |