§ 269. When remainderman may pay interest owed by life tenant. Whenever real property held by any person for life is incumbered by mortgage or other lien, the interest on which should be paid by the life tenant, and such life tenant neglects or refuses to pay such interest, the remainderman may pay such interest, and recover the amount thereof, together with interest thereon from the time of such payment, of the life tenant. Formerly section 233. Real Property Law of 1896, chapter XLVI, General Laws: § 233. When remainderman may pay interest owed by life tenant. Whenever real property held by any person for life is encumbered by mortgage or other lien, the interest on which should be paid by the life tenant, and such life tenant neglects or refuses to pay such interest, the remainderman may pay such interest, and recover the amount thereof, together with interest thereon from the time of such payment, of the life tenant.19 Section 233 was formerly sections 1, 2, Laws of 1894, chapter 315, “An act in relation to interest on mortgages and other liens upon real estate held by a life tenant. SECTION I. Whenever the real estate held by any person or persons for life shall be incumbered by mortgage or other lien, the interest on which should be paid by the life tenant, and such life tenant shall neglect or refuse to pay such interest, it shall be lawful for the remainderman to pay such interest, and to recover the amount so paid, together with interest thereon from the time of such payment, in an action against such life tenant whose duty it was to have paid such interest. § 2. This act shall take effect immediately." 20 Former Law. Before the statute of 1894, set out above, a life tenant was bound in equity to keep down the interest on charges out of the rents and profits. He was not bound to extinguish the principal of the charges.21 If he were forced to do so, he became a creditor of the estate for the amount so paid.22 He was not obliged to pay toward the interest anything beyond the amount of the rents, and if he did he became a creditor of the estate for the excess.23 Where the payment of interest is charged by a testator on the estate in remainder and not on the life tenant, the latter is 19 Repealed by Real Prop. Law of 1909, 460, art. 14, chap. 50, Consolidated Laws. See below, § 460. 20 Repealed, chap. 547, Laws of 1896. 214 Kent, Comm. 74; House v. House, 10 Paige, 158; Carter V. Youngs, 42 N. Y. Super Ct. 418; Wilson v. Quimby, 73 Hun, 524; 22 1 Story, Eq., §§ 486, 488; Mosely v. Marshall, 27 Barb. 42. 23 Doane v. Doane, 46 Vt. 485; Kensington v. Bonserie, 7 De G., M. & G. 134. In some cases exempted from paying interest on incumbrances.2 equity will apportion charges between the life tenant and the remaindermen,25 or charge it to the remainderman alone.26 Section 269. Section 269 is an enabling section, giving an action at law to the remainderman, instead of a suit in equity.27 Savings of Life Tenants. Savings of life tenants, out of income, belong to the life tenants absolutely.28 24 Mosely v. Marshall, 22 N. Y. 200. 25 Peck v. Sherwood, 56 N. Y. 615; Pom. Eq. Juris., § 1223; Story, Eq. Juris., § 487. 597; cf. Matter of Wagner, 132 App. Div. 306. 27 Sage v. City of Gloversville, 43 App. Div. 245. 28 Matter of Cutler, 23 Misc. Rep. 26 Matter of Coombs, 62 Misc. Rep. 508. $270. Powers of courts of equity not abridged. Nothing contained in this article abridges the powers of courts of equity to compel the specific performance of agreements in cases of part performance. Formerly section 234, Real Property Law of 1896, chapter XLVI, General Laws: § 234. Powers of courts of equity not abridged.— Nothing contained in this article abridges the powers of courts of equity to compel the specific performance of agreements in cases of part performance.28% Section 234 was formerly 2 Revised Statutes, 135, section 10: § 10. Nothing in this title contained, shall be construed to abridge the powers of courts of equity, to compel the specific performance of agreements, in cases of part performance of such agreements.29 Note on this Enactment. How far the jurisdiction of the chancellor was established by the Constitution of 1821 may have been regarded as an open question at the time of the enactment of the Revised Statutes. But had it been fixed, the Legislature could not. abridge it.30 The Legisla Legislature may not Abridge Constitutional Jurisdiction. ture cannot abridge the powers of a constitutional court.31 In Alexander v. Bennett, the Court of Appeals said on this point: "We are of opinion that, as the Constitution declares that the jurisdiction shall remain in the court, the court itself cannot relinquish that jurisdiction, and that any act authorizing it so to do violates the constitutional provision. If this provision were intended solely for the protection of the court or its judges they might waive it; but we do not think it was so intended. It was, in our judgment, like the whole judicial system of the State, intended for the benefit of the people, and to secure to litigants a forum in which they might have their controversies litigated. The jurisdiction which the Constitution preserves is inalienable and carries with it the corresponding duty on the part of those courts to exercise it, when called upon in proper form so to do." 28% Repealed by Real Prop. Law of 1909. Sec. 460, art. 14, chap 50, Consolidated Laws. See below, sec. 460. 29 Repealed, chap. 547, Laws of * 1896; McCartney v. Titsworth, 119 App. Div. 547. 30 Alexander v. Bennett, 60 N. Y. 204. 31 Id., supra. Jurisdiction in Equity Over Legal Titles. A court of equity has ordinarily no jurisdiction over devises, or other legal conveyances, unless there is a trust or some other distinct reason why the remedy at law is defective. The law regards legal titles as primarily matters in pais, or for trials by jury in courts of law.32 Object of this Section. This section declares the Legislature's intention not to abridge the jurisdiction of courts of equity to compel the specific performance of agreements in cases of part performance,33 even if such agreements are not in writing as required by the Statute of Frauds.34 32 Chipman v. Montgomery, 63 N. Y. 221, 231; Anderson v. Anderson, 112 id. 104; Voshall v. Clark, 123 App. Div. 136, 139; cf. Tonnele v. Wetmore, 195 N. Y. 430. 33 Canda v. Totten, 157 N. Y. 281, 287. 84 88 242, 259, Real Prop. Law; 58 Lamb v. Lamb, 18 App. Div. 250, 256; § 271. Construction of covenants in mortgages on leases of property and bonds. In mortgages on leases of real property and in bonds secured thereby, the following or similar covenants or agreements must be construed as follows: I. In default of payment, mortgagee to have power to sell. A covenant that the mortgagor "will pay the indebtedness, as provided in the mortgage, and if default be made in the payment of any part thereof, the mortgagee or obligee shall have power to sell the premises therein described, according to law," must be construed as meaning that the mortgagor or obligor shall well and truly pay unto the mortgagee or obligee the said sum of money mentioned in the condition of the said bond or obligation, and the interest thereon, according to the condition of the said bond or obligation. And if default shall be made in the payment of the said sum of money therein mentioned, or in the interest which shall accrue thereon, or of any part of either, that then and from thenceforth it shall be lawful for the said mortgagee or obligee, his legal representative or assigns, to sell, transfer and set over, all the rest, residue and remainder of the said term of years then yet to come, and all other, the right, title and interest of the said mortgagor or obligor of, in and to the same, at public auction, according to the act in such case made and provided. And as the attorney of the ents duly authorized, constituted and appointed, to make, seal, execute and deliver to the purchaser or purchasers thereof, a good and sufficient assignment, transfer or other conveyance in the law, for the said premises, with the appurtenances; and out of the money arising from such sale to retain the principal and interest which shall then be due on the said bond or obligation, together with the costs and charges of advertisement and sale of the said premises, rendering the overplus of the purchase-money (if any there shall be) unto the said mortgagor or obligor, his legal representatives or assigns; which sale, so to be made, shall forever be a perpetual bar, both in law and equity, against the |