Bowen v. Durant — 6 N.Y. St. Rep. 535

Majority

p. 535

Estelle D. Bowen, Resp’t, v. Howard M. Durant, App’lt.

(Supreme Court, General Term, First Department,

Filed January 22, 1887.)

Headnote

Partition—Agreement to consent to the jurisdiction op the courts OP THIS STATE, THOUGH PART OP THE LAND BE SITUATED IN OTHER STATES.

By an agreement not to question the jurisdiction of the courts of this state in a partition suit, some of the land being situated in other states, and not to institute similar suits in those states, on the performance of all the conditions of the agreement by one of the parties, the other will be estopped from denying the jurisdiction of the courts of this state and be precluded from bringing similar actions in the other states. He will not be heard to say that because certain other parties are not parties to this agreement, that the provisions therein cannot be carried into effect.

In April, 1885, Charles W. Durant, residing in the city of New York, died, seized of certain lands described in the

p. 536

complaint hereafter mentioned, situated in New York, Nebraska and Iowa. Mr. Durant left a last will and testament, and a codicil thereto, which was duly admitted to probate by the surrogate of the city of New York on the 18th of July, 1885. The plaintiff began a contest over her father’s will, and this resulted in an agreement between the plaintiff herein and her brothers Frederick C. Durant, Charles W. Durant and Howard M. Durant, bearing date the 16th of June', 1885, which agreement resulted in the withdrawal of opposition to the probate of said will and the codicils thereto, upon the terms and conditions therein provided. Amongst other things, it was provided by said agreement, that if an actual partition should not be made of the real estate of the testator by agreement on or before the 1st day of January, 1886, the plaintiff herein should at once file a complaint and lis pendens for a partition thereof, and should prosecute such suit to judgment with all reasonable speed, and the other parties to the agreement stipulate not to commence such a partition suit unless the plaintiff neglected to do so for one month after January 1, 1886.

It was further provided by the said agreement that said partition suit should be brought for the purpose of partitioning aE the real estate of the testator, whether the same was situated in the state of New York or elsewhere, and that all necessary consents should be executed by the parties to the agreement, in order to give the court jurisdiction therein, and that the agreement might be pleaded as conferring such jurisdiction, and the parties thereto agreed to execute deeds in accordance with any judgment that might be rendered. No amicable division of the real estate having been arrived at between the plaintiff and her brothers prior to the 1st of January, 1886, the plaintiff on the 4th of January, 1886, instituted the present action, setting forth the aforesaid agreement, describing at length the real estate of which the testator died seized, situated in the states of Nebraska and Iowa, and setting forth the rights, titles and interests of all the parties therein, and praying judgment that the agreement might be carried out and all the aforesaid lands and premises partitioned among the parties entitled thereto according to their respective rights and interests.

On the 30th of January, Howard M. Durant answered said complaint.

On the 2d of April, or in April, 1886, the plaintiff herein was notified that the. defendant Howard M. Durant, had instituted a suit in Iowa whereby he sought partition of the identical lands and premises described in the complaint in this action located in the state of Iowa. The object of this suit was to obtain a partition of the lands and premises

p. 537

described in the plaintiff’s complaint, situated in the state of Iowa. The plaintiff was also "served with a notice that the defendant Howard M. Durant had brought a suit in the courts of Nebraska to obtain a partition of the lands and premises described in her complaint as situated in the state of Nebraska.

53T

An application upon this state of facts was made to the court in this action for an injunction restraining the defendant Howard M. Durant from continuing those actions, upon the ground that it was a violation of the agreement of the 16th of June, 1885, and that by a continuance of such , actions the plaintiff’s rights under the agreement were imperiled.

The defendant claims the right to institute the suits in Iowa and Nebraska, upon the ground that no partition of those lands can be had in the courts of this state.

Upon the hearing of the motion the injunction was granted by order, and from this order this appeal is taken.

Carlisle Norwood, Jr., for app’lt; John M. Bowers, for resp’t.

The whole argument of the appellant is based upon the claim that no partition of the Iowa or Nebraska lands can be had in the courts of this state, that the courts of this state cannot affect such lands, either by an actual partition or otherwise, that there are infants whose rights must be protected, who are not parties to the agreement of the 16th of June, 1885, and are therefore not bound by the same.

It seems to be a sufficient answer to these objections to observe that the defendant, Howard M. Durant, the party against whom this injunction runs was a party to that agreement, and, as such party, he consented that a partition suit might be brought in the courts of this state for the purpose of partitioning all the real estate of his father, whether the same was situated in the state of New York or elsewhere, that the agreement might be pleaded as conferring jurisdiction, and that he would execute deeds in accordance with any judgment that might be rendered in such action. This he agreed to do for the purpose of obtaining a withdrawal of the plaintiff’s contest to the admission to probate of their father’s will and codicil. _ It is true that the agreement contained other provisions which it is not necessary to observe in discussing this question. He having secured, by means of this agreement, his ends in procuring the probate of his father’s will cannot now be heard to say that because certain other parties are not

p. 538

parties to this agreement that the provisions therein cannot be carried into effect.

■ As far as he is concerned, by that agreement, he is estopped from denying the jurisdiction of the courts of this state, and the suit contemplated by that agreement, having been brought within the time limited, he is precluded by the terms of the agreement from attempting to violate it by bringing actions in other states.

It is entirely immaterial for the disposition of this appeal for us to determine at the present time as to what relief the plaintiff may obtain in this action; it is enough to say that the plaintiff had complied with the conditions to be performed upon her part, contained in the agreement, and upon such compliance the defendant has agreed not to commence suit in other states for the partition of any of these lands, and he, having received his part of the consideration for the agreement, must be held to perform the covenants entered into upon his part. The objection that the agreement expressly reserved the right to this defendant to resist such actual partition upon the ground that the same cannot be justly, legally or equitably made, alters in no respect the position of the plaintiff herein, as it is evident that all that was contemplated by that provision of the agreement was, that any of the parties had the right to insist upon a sale if actual partition could not be made. The defense is to consist of resistance to actual partition, and nothing more.

We are of the opinion, therefore, that the defendant having made his agreement, should be held to its terms.

Order affirmed, with ten dollars costs and disbursements.

Brady and Daniels, JJ., concur.