De Riemer v. Cantillon

The Chancellor. The proof in this case is full and complete, that the deed from the sheriff to Parkinson did not convey all the land that was sold and bid off at the sheriff’s sale. Considering the situation and possession of the parcels of land not included in the sheriff’s deed, it is difficult to believe, that they would have been intentionally omitted in the sale. They are parcels of land appurtenant — 89 — to the seventy-two acres, and were purchased by the ancestor of the defendants, as proper and necessary for the enjoyment of the landing, and to give due value to the privileges attached to the farm. No reasonable man could ever have thought of separating the land fronting Hudson’s river from the water lot, because the latter would be useless without the former, and it is essential to the value of the former as a landing place. Nor would any reasonable man think of separating the mills on the creek from the small parcels of land on the north side of it, which are required for the construction, support, and use of dams on the creek, and are of little value for any other purpose. We accordingly find, that the defendants, prior to the sheriff’s sale, had enjoyed the water lot, and the small pieces of land north of Crom Elbow creek, as part and parcel of the farm, without any visible distinction or separation, by fence or otherwise. And when the sheriff advertised the farm for sale by execution, he stated, that he should sell the seventy-two acres, “ with the mills, landing, &tc. in possession of the defend-, ants.” The witnesses present at the sale concur in the fact, that not only the seventy-two acres, but the wharf, store, mills, and privileges belonging thereto, were put up by the sheriff, and actually struck off to Parkinson. The cause of the mistake in the deed is easily seen, from the fact, that the deed was drawn, as to description and boundaries, from the original deed to Richard De Cantillon, deceased, of the seventy-two acres, without having recourse to the subsequent conveyances of the water lot, and the parcels north of the creek. But all the parties understood, that all the rights and privileges, and land appurtenant to the seventy-two acres, had actually passed, and the defendants, at once,' surrendered up possession of the whole to Parkinson, the purchaser. No separation was thought of, at the time, by any of the parties in interest. It is clear, that P. intended to buy; and thought he had purchased the land now in dispute. He bought subject to — 90 — all existing incumbrances, which then amounted to 15,000 dollars, so that he gave near 16,000 dollars for the land, including another farm of 200 acres, which he bought at the same time. Admitting the other farm to be worth 8,000 dollars, which the defendants allege to have been the value at the time, and admitting the seventy-two acres, exclusive of the water lot, and the Bard lots, to have been worth 50 dollars an acre, (and all the witnesses agree that they were not worth more,) then P. gave upwards of 4,000 dollars more than the real worth of the land at the time, if he did not buy the land now in question. This fact is decisive proof of his intention. Besides, P. took possession of the whole, with the assent and approbation of the defendants, and he used and occupied it as owner, with the like knowledge and assent. This appears from his advertisement in the public prints, offering the landing for sale, containing seventy-two acres, with mills, a dock, store houses, &c. It appears, also, from the fact, that he repaired the wharf, and with the knowledge and assistance of one of the defendants. Neither P., nor the defendants, were aware of the mis- ■ take in the sheriff’s deed, until after the purchase by Be Riemer. It is in proof, that Be Riemer intended to buy the whole land, including what is now the subject of Controversy, that he previously examined the store and wharf, and mills, and declared that they were the principal inducement to his purchase, and constituted its chief value. One of the defendants accompanied him in his. examination, and he gave the consideration of 15,000 dollars. After he had taken his deed, which was copied, as to boundaries and description, from the sheriff’s deed, (for the same mistake in description was continued,) he took possession of the whole entire premises, as P. and as the defendants before him had possessed them, He leased the store and mill, and had the land surveyed, and one of the defendants attended the survey, and pointed out the slip of — 91 — land lying north of the creek, which had been leased of Samuel Bard, as the correct northern boundary. In short, it is evident from the testimony of the witnesses, and from the answer of the defendants, that the defendants, equally with the sheriff and P., in the first instance, and with P. and Be Riemer, afterwards, were under the mistaken impression and belief, that all the lands adjoining to the seventy-two acres, as part and parcel thereof, had been duly conveyed and possessed, according to the original sale by the sheriff; and the mistake in the deeds was not discovered by either of them, until after Be Riemer’s purchase in 1802. Can it be possible, that such an obvious and injurious mistake as this ought not to be corrected? The correction is required by the most obvious justice. The defendants, who acquiesced in the purchase as it was originally intended, and gave up possession accordingly, and who suffered P. to occupy and improve, and Be Riemer to buy and occupy, under the belief that they were the lawful owners of the entire premises, ought, in justice and conscience, to be estopped from availing themselves of that mistake. The sale and purchase, as I have already observed, was of the entire possession of the defendants, and the mistake in the sheriff’s deed was in the description of the boundaries. The defendants were not, strictly, parties to that sale and conveyance, but they were the defendants in the execur tion under which the sale was made, and in possession of the land; they were present at the sale and delivery, and assisted in carrying the contract into effect according to its true intent and meaning; and if it be just, that the mistake in the deed be corrected, the defendants are particularly bound, in equity and good conscience, to abstain from availing themselves of that mistake, to the prejudice of the plaintiffs. They ought to release, and abandon their claim. More especially ought they to do this, in respect to the plaintiffs, — 92 — since they saw Peter De Riemer give the consideration of 15,000 dollars, for land not worth 4,000 dollars, if the water lot, and the strip of land north of the creek, be excluded, aD(l since they made no claim, at that lime, td that part of the premises, and even encouraged him in the purchase. Under all the circumstances, the prayer of the bill that the defendants be enjoined from the prosecution of their suits at law, and be decreed to release their claim at law to the plaintiffs, is most reasonable, and founded on clear and established principles of equity. But, the defendants allege, that the judgment in favour of Clapp Raymond, under which the sheriff sold to P., was entered up, in the Dutchess Court of Common Pleas, on a confession of judgment, taken out of Court, and which, by the statute, as it then stood, was declared to be void. This is the averment in the answer; but the defendants have not furnished any proof of the fact, and assuming it to be true, the question is, whether that objection can be raised here, and in this case ? It is to be inferred, from the answer, that the record of the judgment appears to be regular, and to have been rendered as of October term of the Dutchess Court of Common Pleas. Whether a rule for judgment was moved and entered in term time, is a matter of fact, and the answer denying the existence of any such rule, is not accompanied with proof. The judgment was confessed, and entered in October, 1807, and it does not appear to have been set aside as irregular, or reversed as erroneous» It remains in full force to this day, according to the record. It cannot now be set aside for irregularity, even in the Court of Common Pleas, and this Court has nothing to do with that question. (Shottenkirk v. Wheeler, 3 Johns. Ch. Rep. 275.) Though the statute, in force in 1809, declared, that judgments in the Courts of Common Pleas, entered by confession in vacation, should be void, it is not to be supposed, that the legislature intended, that acts done under such judgments were in no casé, and at no time, and under no — 93 — possible circumstances, to be regarded as valid. The rights claimed under such judgments are susceptible of confirmation by acquiescence, and time, and the waiver of the irregularity. In the present case, the judgment and the execution and sale under it, have been acquiesced in by the defendants, and recognized by them as valid, until they are barred from application to the Court of Common Pleas, to set aside the judgment as irregular, and until a bona fide purchaser for a valuable consideration, and without notice, has been led to purchase under a title derived from that judgment, and with the knowledge, approbation, and encouragement of the defendants, or some of them. This Court cannot, under such circumstances, question a judgment which stands regular and formal upon the records of the Court. It is bound to regard the rights acquired under it, as legally acquired; the invalidity of that judgment is a point falling within the cognizance of a Court of law, and not of this Court I shall, accordingly, decree, that the defendants be perpetually enjoined from further prosecuting the ejectment suits in the pleadings mentioned; and that, within forty days after due notice of this decree, they execute and deliver to the plaintiffs a release of all their right and title to the tracts of land in controversy 5 and that, if the parties cannot agree as to the form and execution of the release, the same be approved of by one of the masters of this Court, and be drawn and prepared at the expense of the defendants, and that neither party have costs of this suit as against the other. I have adopted this course as to costs, because the same course was adopted by Lord Hardwicke, in Stiles v. Cowper, 3 Atk. 692.) where the heir, as remainder-man had lain by, and suffered an assignee of a lease to rebuild, and had received the rent, and then brought an ejectment for defect of legal title in the assignee. The Lord Chancellor, by in-injunction, quieted the assignee in his possession, but de — 94 — dared that no costs were to be paid on either side. The same rule was followed in the similar case of Jackson v. Cator, (5 Vesey, 685.) where a landlord, by his conduct, amounting to acquiescence and consent, was restrained from exercising his legal right. Decree accordingly.