Heirs of Dyer v. Heirs — 2 Johns. Ch. 152

Majority

p. 152

Heirs of Dyer against the Heirs, Executors and Trustees of Potter.

Headnote

On a bill by the heirs of D., against the heirs, &c. of P., for a specific performance of an agreement, it appearing that there was no improper behavior or unjustifiable defence, the defendants were not decreed to pay costs.

July 20th.

THE bill, in this case, was for a specific performance of a contract to convey land. Dyer had, in his lifetime, taken possession, made improvements, and paid the full consideration which he was to give for the land, according to the articles of agreement. The evidence of the payment consisted principally in the record of a judgment at law, in a suit brought by the executors of Potter against Dyer, in his lifetime, for the consideration, and in which suit, on a reference, it was shown that the consideration had been paid, and a considerable sum was reported due to Dyer, and judgment was entered accordingly.

[ * 153 ]

*Gold, for the plaintiffs.

J. C. Spencer, contra.

The proof of payment is sufficient, and a conveyance must be decreed to the heirs of Dyer. As to the question, whether the heirs and trustees of Potter shall pay costs, it appears that they were not privy to the suit and trial at law, and there was no such improper behavior or unjustifiable defence as to charge them with costs consistently with the course of the Court. (Shales v. Barrington, 1 P. Wms. 481. Webb v. Claverden, 2 Atk. 424. Berney v. Eyre, 3 Atk. 387.) Neither party, therefore, is to have costs as against the other.

p. 153

Practice

GENERAL RULE.

His Honor the chancellor this day made the following order:—■

Ordered, That whenever a defendant shall cause his appearance to be entered, but shall not cause his answer to be filed in due time, an application may thereupon be made to the chancellor (without previous notice) by petition, stating the circumstances, for an order, that the defendant answer the plaintiffs bill in such time, after service of a copy of the order for that purpose, as the chancellor shall direct, or, in default thereof, that the bill be taken pro confesso. And if the defendant shall not answer within the time limited by such order, a rule for taking the bill pro confesso may be entered, as of course, on filing an affidavit of the service of a copy of the said rule.