Livingston v. Freeland , 3 Barb. Ch. 510 ( 1848 )

The Chancellor.

The objection that the master has not stated in his report all the property upon which the part of the annuity in question in this case is chargeable, by the decree, is one in which the appellant has no interest, if the master is right in supposing that the lands and premises now belonging to her are primarily liable for the payment of that part of the annuity. As I understand the .case, Herman Livingston has satisfied one-third of this eighth of the annuity; and has obtained a release from Mrs. Freeland for all the lands belonging to him at the time of the decree of November, 1844, upon which that eighth of the annuity was charged by that decree; except certain lands which he had conveyed to others previous to such release, and lot No. 1 of his share. Talbot’s affidavit also shows that he has paid another third of that eighth of the annuity, and has conveyed all the lands in this state which were included in the deed of July, 1843. The contest between the parties, therefore, is as to which property shall be charged with the remaining third of that eighth of the annuity. And if the lands which originally belonged to Mrs. A. Bogardus, under the will of her father, did not now belong to the same person who owns the husband’s share of the property which was purchased from Henry Livingston the younger, or enough thereof to satisfy the whole of that portion of the annuity, there might be some difficulty in sustaining the master’s report.

The decree of the first of November, 1844, does not profess to designate the order in which the lands that, by such decree, were left subject to the lien of' the eighth part of the widow’s annuity thereon, as and for Henry’s share of such annuity, shall be charged. It is necessary, therefore, to inquire what were the equitable rights of the parties, at the time of the making of that decree. The share of Henry Livingston the younger originally was all primarily chargeable with this portion of the dower of his mother. But in the arrangement of July, 1843, he conveyed to Herman Livingston and to his two brothers-in-law, Bogardus and Talbot, all the lands specifically devised to him, except the homestead and Monell farms, and they gave back to him a mortgage for $7000 upon the Ancram iron works and 70 acres'of the Ancram farm around such' works. And it appears by the recitals in the decree, that the grantees in that conveyance covenanted to indemnify the grantor against the debts, and to perform all the obligations imposed upon him by reason of his being named as a devisee of a specific portion of his father’s estate. This of course included an obligation to discharge him, and the two' farms which were left to him, of the annuity which by a previous decree had, been charged upon him and his estate. It is true, the charge of the mother upon his two farms was not released by this arrangement; but that part of his share of the devised estate which was granted to "his brother and his two brothers-in-law became, in equity, primarily chargeable with the payment of his share of the annuity. And as between the Ancram iron works and the 70 acres of the Ancram-farm which they mortgaged to him at the time of his conveyance to them, and the residue of the lands granted to them, such residue was equitably chargeable with the whole óf his share of the annuity ; as the primary fund for the payment tLiereof.

Again; the same grantees and their wives, a few months afterwards, made an absolute conveyance, to Henry Livingston the younger, of the Ancram iron works and the 70 acres adjoining the same; with full covenants of warranty and of seisin, and against all incumbrances thereon. That conveyance, therefore, independent of the equity acquired under the $7000 mortgage, gave to the grantee therein, and his assigns, an unquestionable equity to have the eighth of the annuity originally chargeable on the whole of the lands devised to him, charged primarily upon the other lands conveyed to Bogardus, Talbot, and Herman Livingston, in July, 1843. But as Talbot and Bogardus had conveyed two-thirds of the 95. acres of the Ancram farm to Herman Livingston, with warranty, their two-thirds of the coal lands and of the testator’s original interest in the Salisbury ore beds became primarily chargeable with the whole of their two-thirds of that eighth of the annuity. And as Herman Livingston had conveyed his interest in the Salisbury ore beds to Chittenden, his third of the coal lands and his interest in the 95 acres of the Ancram farm, were primarily liable for the payment of his one-third of this eighth of the annuity. The mortgage from Bogardus and wife to Gunn was prior in date to the deed from Herman Livingston and his two brothers-in-law to his brother Henry. But inasmuch as it embraced other lands besides the interest which Bogardus acquired, under the deed of July, 1843, in the coal lands, and in the Ancram iron works and the Ancram farm, such other lands were primarily liable in equity for the payment of that mortgage; before resort could be had to the Ancram iron works and the 70 acres around the same, or the 95 acres of the Ancram farm, which the mortgagors had subsequently conveyed, with warranty. Such were the equities of the several parties, interested in the lands upon which Henry Livingston’s eighth of the annuity was chargeable, at the time the final decree in the partition suit was made, in November, 1844. That decree, however, not only changed the title to the coal lands previously owned by Herman Livingston and his two brothers-in-law, as tenants in common, by assigning portions thereof to other members of the family of Henry Livingston deceased, and giving the wives of Bogardus and Talbot interests in such lands, but it also charged this eighth of {he annuity upon other lands set off to Herman Livingston in bis own right, and to Bogardus and Talbot in right of their respective . wives. In- doing this, however, no injustice was clone" to the wives of- Bogardus and Talbot, or to the mortgagees to whom Bogardus.arid wife:had mortgaged seven-eighths of their interest in!subdivision No., 1-in"great lot No. 3,.in November, 1838. ■ For the lands set off to Mrs. Bogardus, and to Mrs. Talbot, respectively, in severalty, including -a share of the .4312 acres of tile coal lands,.were much more valuable than their shares of the lairds as originally devised to them by the will of theii father. These coal lands, as proved by the testimony of Augustus Tremain before the master,"weré worth, o a an average, from eighteen to twenty dollars an acre. ■ This, at the lowest estimate of the witness, would increase the value of each share about $>11,000. For. by the will of the testator the excess in the value of the lands devised to Henry was not to be made up to the other devisees in land; but was to be paid to the executors in money, for the use. of such devisees. It was therefore personal estate, which belonged to the husbands of Mrs. Bogardus and Mrs. Talbot, by virtue of their marital rights, and was hot'subject to the lien of the mortgage to Meseck and Best. The increased value of the lands which were assigned to the shares of Mrs. Bogardus and Mrs. Talbot, in the partition, was therefore much more than an equivalent to them, and to. Meseck and Best the mortgagees, for the two-•thirds of Henry Livingston’s eighth of the annuity; which by the decree were charged upon the whole shares of the estate assigned to Mrs. Bogardus and Mrs. Talbot in severalty, as well as upon the lands and property embraced in the deed, to their husbands and their brother Herman, of July, 1843. It is therefore perfectly equitable and just that the lands thus assigned to these two ladies, in the partition suit, should bear the charge of this part of the annuity, instead of the Ancram iron works and the 70 acres of land connected therewith; which had been previously conveyed to Henry Livingston with full covenants of warranty and seisin and against all incumbrances thereon.

Had it not been for this increase in the value of the real estate assigned to Mrs. Bogardus and Mrs. Talbot, the one-third of the coal lands and one-third of the testator’s share of the Salisbury ore beds, which Bogardus acquired under the deed of July, 1843, would, in equity, have" been first chargeable with his third of this eighth of the annuity, and the one-third of the same property which Talbot acquired, by that deed, would have been primarily chargeable with.his. third of this eighth of the annuity. And these would have constituted an ample fund to satisfy these portions of the annuity, in addition to Stephen Gunn’s mortgage; which was taken pendente lite, and subject to the third of Henry Livingston’s eighth of the annuity which Avas chargeable upon the part of the mortgaged premises Avhich \vas embraced by his deed of July, 1843.

The subsequent foreclosure of the two mortgages, in a suit to which neither Mrs. Freeland nor the- owners of other lands upon which this part of the annuity Avas charged, by the decree in partition, Avere parties, could not divest the equitable lien of Mrs. Freeland upon the premises sold under the decree of foreclosure, nor alter the equitable lights of any of such owners, in reference to the charge of this portion of the annuity. Indeed the decree of foreclosure is entirely erroneous upon its face, so far as respects these equitable rights. For the mortgage to Meseck and Best did not embrace any portion of the coal lands, and only seven-eighths of the original interest of Mrs. Bogardus in the real estate of her deceased father. And yet the decree of foreclosure directs the whole share No. 5 assigned to Mrs. Bogardus in the partition suit, including her share of the coal lands and the Avhole of her original one-seventh of her father’s real estate, Avhich she took under the will, to be sold to satisfy the aggregate amount due upon both mortgages, and the costs and expenses of the foreclosure.

It is not necessary, hoAvever, now to inquire Avhat would have been the equities as between Gunn, the holder of the two mortgages, and the respondents in this case, in reference to the lien of Alonzo Bogardus’ third of this eighth of the annuity if Gunn had not transferred all his interest in share No. 5 tc Maria S. Bogardus, the appellant. For the appellant having become the purchaser of all the interests of A. Bogardus and of his wife, not only in share No. 5, but also in the Salisbury ore bed, which at the time of the conveyance to her was primarily liable for the payment of his third of Henry Livingston’s one-eightli of the annuity, she was in equity bound to pay off and discharge that third of this eighth of the annuity, or to appropriate her interest acquired under the deeds of A. Bogardus and wife for that purpose. And no one can doubt" that the interest thus acquired by her, under the two deeds of A. Bogardus and wife, of the 1st of September, 1845, was more than sufficient to satisfy his share of this eighth of the annuity, in addition to all prior liens thereon.

It is true the Salisbury ore beds are not within the limits of this state, and therefore could not be sold by a master, under the decree in this cause, so as to transfer the legal title of the appellant to a purchaser. And as Maria S. Bogardus is not one of the parties to this suit, but is merely a purchaser pendente lite, a decree cannot be made upon the petition in this case, under which the reference to the master was ordered, directing her to join with the master in a deed so as to transfer her title to the ore beds to a purchaser under the decree. But her.interest in the ore beds being primarily liable in equity for the payment of this third of Henry Livingston’s one eighth of the annuity, that interest may be reached, and applied to the satisfaction of this equitable lien thereon, either by an original, bill in the state of Connecticut, or by a supplemental bill filed against her here. There is also a lien, however, upon the interest which she acquired under the deed of September 1st, 1845, in share No. 5 of the lands in this state which was assigned to Bogardus and wife under the decree in partition; and that share may be sold under an order to be made upon this petition of Mrs. Freeland which was presented under the provisions of the original decree. f;

Such being the rights and equities of the parties, it only remains to be seen whether any of the exceptions of the appellant were well taken. As the lands of the appellant were primarily chargeable with all the arrears of this third of the eighth of the annuity in question, and also with the future payments, she could not object that the master had not reported what lands of other persons were secondarily liable for the payment thereof. The first and second exceptions were therefore properly overruled. And it also would have been erroneous for the master to have reported that any portion of the eighth of the dower annuity charged by the decree as and for Henry Livingston’s share, whether due or thereafter to become due, was then chargeable upon the lots mentioned in the third and fourth exceptions, other than lot No. 1. For the others of those lots had either been released by Mrs. Freeland, or had been previously conveyed by Herman Livingston ; and were therefore discharged by the release to him of the lots which were first chargeable as between him and his grantees. For this reason, as well as for the reasons given for the disallowance of the previous exceptions, the third and fourth exceptions were not well taken.

The lot No. 1, which was assigned to Herman Livingston by the decree, is undoubtedly chargeable with his third of the eighth of the annuity which constituted the share originally chargeable upon Henry Livingston. And as Mrs. Freeland had released to Herman Livingston a portion of the lots which were primarily chargeable with that third, the lands of the appellant are equitably discharged from the payment of any part of the third which he ought to have paid, even if lot No. 1 should hereafter prove to be insufficient for that purpose. The same may be said in reference to the lands assigned to Talbot and wife in the partition, and which we.re primarily chargeable with Talbot’s third of that eighth of the annuity, if Mrs. Free-land has released any of those lands. But as Talbot, as well as Herman Livingston, had paid up the arrears of their two thirds of this eighth of the annuity, and as the report only professes to state upon what lands the arrears and the future instalments of the other third is chargeable, it is of no consequence to the appellant that the master has not stated that lot No. 1 assigned to Herman Livingston and the several lots assigned to Talbot and wife are secondarily liable for the third which is primarily chargeable on the appellant’s property. The vice chancellor was therefore right-in overruling the fifth and sixth exceptions.

The An cram iron works and the 70 acres at and about the same, having been conveyed by Herman Livingston and by Bogardus and wife, and by Talbot , and wife, with full covenants of warranty, long previous to the decree.in partition, although as between the owners thereof and Mrs. Freeland, they were still liable to her as a part of the security for Henry Livingston’s eighth of the annuity, the grantors in that .conveyance were bound to indemnify such owners against this charge upon the lands conveyed. And upon the principle of charging lands, which are subject to an incumbrance thereon, in the inverse order of their alienation, the whole of this eighth of the annuity became primarily chargeable upon the lands embraced in the deed of July, 1843, which remained in the hands of Herman Livingston and Bogardus and Talbot subsequent to their deed of the 18th of November in the same year, to Henry Livingston. And Mrs. Freeland having released a portion of the lands thus primarily liable, with full knowledge of the.rights-which Henry Livingston and his grantees had acquired under this deed of November, 1843, a court of equity would not now charge any part of the annuity upon the Ancram iron works and the 70 acres adjoining the same; even if thé shares of Bogardus and Talbot in the Salisbury ore bed, and the other lands set off to Herman Livingston and Bogardus and wife and Talbot and wife in the partition, which were primarily liable and which have not been released, should prove to be insufficient for the purpose of satisfying the charge. .The, seventh and eighth exceptions were, therefore: rightfully disallowed, .by the vice chancellor.

As the petitioner sought a sale of the lands and premises upon which the arrears of. the annuity were properly chargeable, it became necessary, to ascertain the value of the future instalments of the same share of the annuity; so that if a sale took place the proper directions might be given to .retain the present value of the future instalments, out of the proceeds of the sale. And it was for the interest of the appellant to have the amount ascertained; so that if Mrs. Freeland consented to accept it in lieu of this portion of her annuity, the property of the appellant which is primarily liable for this part of the annuity might be discharged, without the expense of a further reference to ascertain the amount. The master also obeyed the order of reference in malting that part of his report. The ninth exception was of course not well taken.

From what has been before said, it is evident the master was right in reporting that the interest which the appellant acquired of Bogardus and wife, in the Salisbury ore beds, ought to be sold to pay the amount reported due, if the same could be properly sold under the decree here ; but as that could not be done, that the share No. 5, in Ancram, set off to Bogardus and his wife in the partition, should be sold for that purpose. The tenth and eleventh exceptions were therefore properly overruled.

As the whole of the arrears of the annuity are primarily chargeable upon the lands, and the interest in the ore beds, conveyed to the appellant, by A. Bogardus and wife, on the first of of September, 1845, it was not very material to her what part of her property upon which these arrears were chargeable, was sold first. But I think the master decided right that lot No. 90, of share No. 5, which had not been affected by the sale under the decree of foreclosure, should be first sold ; and then the residue of that share. The report does not mean that all the residue should be put up together and sold in one parcel; but that, as it Was all conveyed at one time and to the same person, there is no reason why one separate lot or parcel embraced in that share should be sold in preference to another. In case a sale is directed, the decretal order will of course direct it to he sold in parcels; so that no more' shall be sold than will be sufficient to pay the charges thereon for which the whole is primarily liable. The twelfth and thirteenth exceptions were therefore not well taken. - And for the reasons before given in reference to the seventh and eighth exceptions, the fourteenth was properly overruled. Nor could the 95 acres of "the Anvram farm which had been released by Mrs. Freeland be sold inidu'r the decree ; and the fifteenth exception of course was not well taken.

There was nothing in the order of reference requiring the master to report what lands had been released by Mrs. Free-land to Herman Livingston. That was a mere matter of evidence before the master, to enable him to decide properly as to the matters referred to him. Nor did that release have the effect to discharge the property of the appellant from its primary liability for the payment of the one-third of the eighth of the annuity which was in controversy before the master, upon the reference. The sixteenth and seventeenth exceptions were therefore properly disallowed by the vice chancellor.

The order appealed from was not erroneous in any respect; and it must be affirmed with costs. The appellant must also pay to Anne Eliza Freeland, one of the respondents, interest on the arrears of the annuity reported due, from the date of the appeal to the 30th of June, 1848; as her damages for the delay and vexation caused by this appeal.