Henderson v. Hamilton

Headnote

The defendant on the 3d of January, 1815, executed a bond for $8,500 in favour of the plaintiffs, to secure the payment of $4,404,52. The condition of the bond recited, that to pay and satisfy the last mentioned sum, one John C. Hamilton had by indenture granted unto the plaintiffs an undivided interest in certain lands (which had been conveyed by Timothy Pickering to John B. Church and others in trust,) which were unproductive and could not be divided for several years thereafter. The condition further stipulated, that the defendant should pay to the plaintiffs, year by year, the sum of $305,21, the lawful interest on said sum of $4,404,52, until the said estate should be divided and a clear and perfect title thereto, made to the plaintiffs.

In an action upon the bond to recover the amount of the annual payments, from tire year 1818, to 1828, the defendant contended, I., that the plaintiffs were bound to show diligence in procuring a partition of the lands conveyed. II. That they were barred by the statute of limitations, from recovering any thing in arrear beyond six years, or that there was a presumption of payment from lapse of time. Held, however, that the statute of limitations did not apply to this case; that there was no presumption of payment, and that the plaintifis were not bound to procure a partition of the estate. Held, also, that the annual payments were to be viewed in the light of interest on, the principal sum, and that the plaintiffs were not entitled to interest upon the annual payments.

This was an action of debt on a bond, for eight thousand five hundred dollars, executed by the defendant in favour of the plaintiffs, and bearing date on the third day of January, 1815. The condition of the bond was as follows:—

“ Whereas the above bounden obligor toas on the day of the date' “ hereof, indebted unto the above named obligees, in the sum of four “ thousand four hundred and four dollars and fifty-two cents, law- “ ful money, of the United States of America, to pay and satisfy “ which, John C. Hamilton of the city of New-York, attorney at “ law, hath, by indenture bearing even date, herewith grante d, bargained and sold, aliened, remised, released, conveyed and confirmed unto the above named obligees, an undivided interest, which he was entitled to, together with the other heirs and

66 widow of Alexander'Hamilton deceased, to certain lands and “ premises, which were conveyed by Timothy Pickering to Jo hn Church, Nicholas Fish, and Nathaniel Pendleton in trust, and upon “ certain conditions, as specified and contained in an Indenture, bear- “ ing date the seventh day of May, eighteen hundred and eight, as b y reference to the deed of the said John C. Hamilton, to the above “ named obligees, will more fully and at large appear. And “ whereas, the estate and property remains undivided, and is un~ “ productive, and cannot be divided for several years to come, during “ which period, and until the same shall be divided according to the “ trust created, it was further agreed, that the said Alexander “ Hamilton should pay the lawful interest on the said debt of four thousand four hundred and four dollars and fifty-two cents “ yearly, and every year, until the said estate is divided, and the “ share or portion of the said John C. Hamilton shall be conveyed by “ the trustees to the said David Henderson Junior, and William Cairns “ Junior, their heirs or assigns. Now the condition of the above “ obligation is such, that if the abave bounden obligor, his heirs, " executors, or administrators shall, and do well, and truly pay or “ cause to be paid unto the above named obligees, their heirs, ex- “ ecutors, administrators or assigns, yearly, and every year, on the “ third day of January, the sum of three hundred and eight dollars and “ thirty-one cents, the lawful interest on the said sum of four thousand “four hundred and four dollars and fifly-tvio cents, until the said “ estate is divided, and a clear and perfect title thereof, be made to the “ above named obligees, their heirs or assignees, then the above “ obligation to be null and void, or else to be and remain in full “ force and virtue.”

The declaration was in the common form, and the defendant, after craving oyer of the bond and condition pleaded, 1st, non est factum, 2d, solvit ad diem. The last plea, however, [was after-wards stricken out under a stipulation, that the defendant should have all the advantage of the statute of limitations, which could be gained by any special plea.

The plaintiffs then assigned breaches for non-payment, setting forth the conditions of the bond and averring, that the estate and property therein mentioned, remained undivided on the third day

of January, 1818, and that no title thereto had been made to the plaintiffs, or their assigns on that day, and that the sum of three hundred and eight dollars and thirty-one cents, became due and owing to them on that day accord'rig to the foim and effect of the said condition, which sum was still in arrear. There were similar breaches assigned as to each of the ten following years, up to, and including the year 1828.

The cause was tried before Mr. Justice Oakley. At the trial, the defendant admitted the execution of the bond, and that the breaches of the condition were truly assigned by the plaintiffs : (the admission to have no effect upon his defence however,) and it appeared that the sum of three hundred and eight dollars, and thirty-one cents, which became due on the third day of January, 1816, and the like sums, which became due on the same day in tile year 1817, had been paid by the defendant to the plaintiffs.

On this state of facts the counsel for the defendant moved for a non-suit, on the ground, that there was no evidence that any diligence had been used by the plaintiffs to effect a partition of the land, mentioned in the condition of the bond. This motion was overruled by the presiding Judge. The plaintiffs then claimed the yearly sum of three hundred and eight dollars and thirty-one cents, from the year 1818, to the year 1828, together with interest on each yearly sum, as the same accrued. The defendant insisted that the plaintiffs were only entitled to recover such sums, as had accrued on said bond for the last six years, claiming that all the residue was barred by the statute. He also contended that no interest was allowable on any of the annual sums. These points, however, were both ruled against the defendant, and the jury by the direction of the Judge gave a verdict for $4,815,69, in favour of the plaintiffs, subject to a case to be made, which either party had leave to turn into a bill of exceptions.