Sands v. Hildreth — 12 Johns. 493

Majority

p. 493

Robert Sands, Appellant. against Patrick G. Hildreth, Respondent.

Headnote

No appeal lies from a decree pronounced by the court o£ chancery .onthe default of the defendant,in not appearing at the hearing, after the r.au^e had been regularly set down and regular notice for that purpose.

THIS was an appeal from the court of chancery. The respondent filed his bill in the court below, against the appellant, and Comfort Sands, and' Amie J. Barbarme, to set aside a conveyance by Comfort Sands, to the appellant, of a ropewalk and premises, in Brooklyn, purchased by the respondent at a sheriff’s sale, on an execution against Comfort Sands, on the ground of fraud. Barbarme was made defendant, as tenant for years, in possession of the premises. The bill was taken, pro confessa, against Comfort Sands, for want of answer; and as to Barbarme, the cause stood on the bill and answer. The first answer of Robert Sands was excepted to, as insufficient, and he put in a second answer, which also being excepted to, he put in a third answer, to which the respondent replied, and the cause being at issue, witnesses were examined on the part of the respondent; but no. witness was produced or examined., on the part of the appellant, in support of his title,

p. 494

The cause was regularly set ’down for a hearing at Augurf term, 1814, when the defendants all made default, .no person appearing in behalf of either of them. . Upon which the following decree was pronounced by the/cbancellor- •;

“ This cajüse. coming on to be heard bn the pleadings and proofs therein, o's against the defendant,'Robert 'S.andsi and .on the bill taken,pro confessa, against the defendant) Cóñifprt Sands, and Upon bill arid answer,.ns:between the.-c.oriiplainant and.the defendant, Amie' J. Bartbarine, and the matter,being opened by Mr. Riggs, on behalf of tlie, complainant, (no. person appearing on the part of the defendants,- or either,of therri,) "and- it satisfactorily. appearing to the court, th-at d.ue noticb'of.the hearing had been- given to the .solicitors ..of the defendants .respectively : whereupon, it , is ordered, adjudged,, and decreed1,. and bis honour1 the chancellor., by virtue .of the -ipower and authority of this court, doth- 'accordingly: order, adjudge;- -and decree,, that the'deed of conveyance, frpnf the' ■ defendant-,. Comfort Sands^to- the defendant, Robert Sdnd-s: in the pleadings -mentioned, and. therein; described, as. bearing date the 21st -day of February,in the year of our Lord one thousand eight hundred and.-seven, for certain.real estate and premises,. si-tuate .at ^rao/ch/n,_in,'^'wg’^coiuity, in-this state, having.'beért made to delaya-nd, .defraud the bona Jide creditors of the said Comfort Sands., -is void .as/against ■the . complainant. in- -this- cause,, and, the same is. accordingly set-aside, tis against the complainant, who became ,entitled to the .jireipisés-.it$..theisay$- Meed- described, .as a.puychásjer-ftigredf, ,under: the sale and conveyance, 'made to him by .the-, sheriff of King’s: county,, as in the pleadings .ipentippeaf)-fj?on), -.die-.ti|ne!-;,qi file sale and conveyance by the said sheriff,:{and is .now entitled •thereto,,, and to, the rents, thereof, from, the defendant,.-.Amie /» • Banbarfnej). bearing date the, I,@tb day of Marc¡i,.ia theyeaKO.n.e ..thousand eight hundred and -eleven, and mentioned in his answer Ih this.jG8u§e,.,-.and’ whiph...shallj-bereafter aperaei/and become .payable, under the said lease,, by the ..said -Aníie. J. B.drb'arine, who is to be considered-as a.,tenant, of the complainant,, Patrick tS; Hildrethi during the- residue, of the term for. years,, in- the - said lease contained, at the rent,.there-in[a,nd, ,thereby reserved; ..an.d-.tihe said A.mieArBarbarine :is -to atfo'rn .to '^¿...coippMfiSht, , and pay. h-im the said rent accordingly,, as. Well what, is iti, arrear, . a», .w-háit. shall ¡hereafter accrue upon the . sáid leasp ; but that the covenant-in the go-id leelse contained, on the part of the .defendant,

p. 495

Robert Sands, to pay for all. the tools and implements in the rope walk, on the said premises, as in the said lease contained, is not' obligatory upon the complainant as owner of the said premises by purchase. And it is further ordered,. adjudged, and decreed, that the complainant pay. to the defendant, Amie J. Barbarme, his costs, to be taxed. And it is further ordered, adjudged, and decreed, that the defendants, Robert Sands and Comfort Sands, shall pay to the complainant.jus costs of this suit, to be taxed, including the costs to be paid by the. complainant to Amie J. Barbarme, as before directed ; and that the complainant have execution thereof, according to; law, and the course of the court. " And it appearing to the court, by the answer of the said defendant, Amie J. Barbarme, that the rent of the Said premises, under the said lease, from the said' Robert Sands to him, and payable to- the complainant, as standing in the place of 'the said Robert Sands, the lessor, is 465 dollars 10 cents per annum, payable in quarterly payments, being 116 dollars 27 1-2 cents for each' quarter, and that the said rent, for two yeárs and six months, ending the 1st day of August, in the year one thousand eight hundred and fourteen, is in arrear and unpaid, amounting to .1,162 dollars and 75 cents. It is further ordered, that if the same is not paid within ten days, the complainant have execution for the same against the said Amie J. Barbarme,, according to law; and that the complainant have execution for the said quarterly payments of rent, subsequent to the said 1st day of Augitsi,- as the same shall become payable, unless the said Amie J .Barbarme shall attorn to the complainant, and become his tenant under the said lease.” -

Riggs, for the respondent,

now moved to have the appeal dismissed, on the ground that the defendants did never appear in the court below to defend the suit.- He contended,- that this court ought not to hear an appeal from the decree of the court of chancery, unless the defendant below had'made a defence, for two reasons : 1. Because this court would be obliged tn

p. 496

decide Without'having the reasons - of the chancellor.; 2.. That the. court below would be obliged to give an opinion on a mere eot parte-'hearing-of a cause. -

being called upon, according to the course •of this court, to give his reasons for the decree in the - court below, said, that as the appellants never appeared-at the hearing, to, make any defence, he had no reasons to assign, as his decree was given,, as matter of course, on. the default-of the defendants below. ';

To allow -the appeal, in this cáse, would be making this a court of original jurisdiction. The defendants, who have treated, .the court below with- disrespect, can lose nothing: by-the rejection of their appeal. The default was voluntary on their part* and it is their own fault that á decree "has been pronounced against -them. If they had any > real defence to make,, they should have appeared: at the.hearing. . , • ' ' «■

In Dean v. Abel,* when the' defendant made default at the' hearing, and a. decree was pronounced again-st: him, from which he appealed, the house of lord's, without'going into the merits* dismissed the appeal* for it was in the. nature of an original! hearing. '

No matter, not prayed for in a bill, or insisted on at the hearing, can be made the ground - of an appeal. - If is the estab* lished rule of the house of. lords,, and;,is' 'founded in the .very tiatur-e- o£ a court of appeals,..that no point not made in the court below can be made on the appeal.†

T. A. Emmet, and Woodworth, for the appellant,

.said,, it was unnecessary to' look for English -authorities, when our statute.. authorized the appellant to coiné to this .court; That statute: (sess. 24. ch. 10. s. 8. 1 N. R. L. 134.) declares, that “ allperson's'.aggrieved by ahy sen tence",, judgment, decree,: Or Order* of the. court of chancery* or court of prob.ates,-may appeal from {he same* or any part thereof,!’ ' to-this court. The appellant has a right to this appeal, both from the terms and the spirit of (lie statute. The terms of the act are plain and explicit; and the" spirit and intention of it are equally clear;- -The chancellor is bound to examine every case that comes before him, before he pronounces his’ -decree, The defendant: rhay repose "such "confidence in the learning and integrity of the chancellor, as to be-willing,-to trust, the -decision to Ms; conscience ;; -and he- .ought' not, in justice to the appellant, to put his conscience into- the hands of the- solicitor, for drawing up the decree.-. , - ■

It appears; from the decree, that the -cause was" considered by the chancellor. .- •.

ThbugM we'might*'..possibly, .obtain a rehearing* yet that: bannot affect pur right of appeal. . " -• -b.-'

p. 497

Riggs, in reply,

said, that there was nothing imperative in .the act relative to appeals ; and this court, in the construction of it, have -considered the circumstances of the easel The right of a suitor, in England, to appeal, is as.perfect as it is in this state. If the decree was not warranted by the record; the defendants below might bring a bill of review, ahd have a rehearing, - -

Emmet.

A bill of review is not the proper "remedy for the defendants below.*

unanimously, Ordered, that the- appeal be dismissed, with costs.