Pitcher v. Carter.

the store on the premises mortgaged. The master, under date of July 20, 1837, indorsed his approval on the mortgage.

After the execution of the mortgage, Seaman and Goold, who had previously negotiated terms with the builders, entered into a contract with Otis Pollard for the carpenter work and materials of the store, and with the complainant, Stacey Pitcher for the mason work and materials. They were to pay Pollard $6000 and Pitcher $6200, one third to each in cash, and the balance by assigning to each an interest in the mortgage, equal to the respective amounts. Seaman and Goold also paid $1000 for finishing off the lofts of the store into lodging apartments, to connect with the Pearl Street House; and somewhat less than that amount for fitting up the stores for use.

The stores were built and completed during the year 1837, and were occupied under the old leases, from thence to the expiration of the terms therein limited. It appeared that there was some difficulty in finding builders who would receive such a mortgage in payment, and estimates on the basis of a cash payment were made at a little lower price than those of Pitcher and Pollard.

Mr. Clason, with Pitcher and Pollard, and one other person, as his sureties, executed a bond to the three infants, in the penalty of $29,000, conditioned that he would faithfully pay over and account for the $14,500 raised by him on mortgage, pursuant to the order of May 23, 1846, and would expend the money in the erection of buildings on lot 84 Pearl-street, and would apply any overplus in discharge of the mortgage. This bond was dated July 1, 1837, and was approved July 19, 1837, by the same master who approved the mortgage.

On the 28th of May, 1838, Seaman and Goold executed an instrument to Pitcher, stating that $4,133 34, of the mortgage of $14,500, was loaned by him, and that they held it as security for that amount, for his benefit, and also stating that interest on that amount was paid to Pitcher, to May 1, 1838.

On the same day they executed a similar instrument to Pollard, declaring that he had advanced $4,000 of the mortgage, on which interest had been paid to May 1, 1838.

Pollard, on the 6th of June, 1838, assigned his interest in the

Pitcher v. Carter.

mortgage to William Scott. Seaman assigned his interest in the mortgage, to L. D. Coman, on the 24th of March, 1840; and the latter, on the 1st of April, 1840, assigned the same to N. G. Kortright, administrator of Robert Seaman. On the 13th of December, 1839, Goold assigned his interest in the mortgage to John Wilson, in trust for his creditors.

Mrs. Artois died before August, 1840, leaving the beforenamed children of Thomas Carter, her only heirs. Of those children, Wellington became of full age, in December, 1838-Thomas, in April, 1841, and Cornelia, in March, 1844.

On the 31st of August, 1840, Clason, the trustee, conveyed the premises in fee to the three children of Thomas Carter.

Cornelia married Jose C. C. Lomelino, in 1842, and Lomelino and wife soon after conveyed their interest in the premises to Wellington A. Carter, in trust, for the separate use of the wife and her children.

The mortgage to Roosevelt was not paid off under the order of May 23, 1836. The transactions relating to 52 Water-street, after that date, were not involved in this suit.

The bill was filed on the 2d of November, 1843, by Pitcher, Scott, Kortright and Wilson, against the three children of T. Carter, and Lomelino, and against J. Howland, setting forth the execution of the trust deed by Carter and wife-the order for the mortgage and its execution under the same, and the several transfers of the same, vesting it in the respective complainants. The bill claimed that there was due on the mortgage, $11,316 67, with interest from May 1st, 1842.

The two Carter's, and Lomelino and wife, put in an answer, alleging that the order of May 23, 1836, was void, because of misrepresentation; and the suppression and concealment of material facts, in obtaining it. That there was no loan, or advance made on the mortgage, or money raised upon it, but it was made on an agreement that it should be taken in payment for rebuilding the stores, and it was made for the benefit of Seaman and Goold, and was void as to the infants. That the Court had no authority to grant an order for mortgaging their estate, under the circumstances. And they alleged that the premises would be VOL. IV.

2

Pitcher v. Carter.

valueless, if the mortgage, held by the complainants were adjudged to be valid.

H. Nicoll and J. Anthon, for the complainants, made the following points:

I. The trusts created in the conveyance, made by Thomas Carter and wife, to John Sniffen, were valid, active trusts; and by such conveyance, the whole legal estate to the premises in question was vested in Sniffen, and in his successor, Augustus W. Clason, and such legal estate was in no respect changed by any provision of the revised statutes. (1 R. S. 722, 2d ed., 47, 48; Cushing v. Henry, 4 Paige, 352; Matter of De Kay, 4 Paige, 403.)

II. The mortgage in question having been made by order of this court, and having been executed by Clason; and the defendants, who were infants at the time, not being "seized" of the real estate in question, the validity of the mortgage is not to be determined with reference to the statute regulating the sale of infants estates. (2 R. S. 120, 2d ed.; 2 Hoff. Ch. Prac. 210.)

III. The Court of Chancery has the clear and well established jurisdiction, as the general guardian and protector of the rights of infants, to authorize such disposition of their equitable estate, as may be deemed most beneficial to them. (Cochran v. Van Surlay, 20 Wend. 375; Inwood v. Twyne, 1 Ambl. 416; Ex parte Phillips, 19 Vesey, 122, 123; 2 Story's Eq. 581, 585; Mills v. Dennis, 3 John. Ch. R. 368; Wood v. Wood, 5 Paige, 596, 600; M'Pherson on Infants, 255, et seq.)

IV. The provision of the revised statutes, (1 R. S. 724, 2d ed.,) declaring the acts of a trustee, when done in contravention of the trust, to be void; are inapplicable to the case under consideration:

Because, 1st. That provision, by its terms, plainly relates only to such trusts as were to be created after the 1st January, 1830. (See Reviser's notes, 3 R. S. 586, 2d. ed.; and 5 Paige, 596, above cited.)

2d. Statutes are not to be construed so as to act upon existing rights and liabilities, unless the intention so to act, is expressly declared. (Sayre v. Wisner, 8 Wend., 661; Butler v.

Pitcher v. Carter.

Palmer, 1 Hill, 324; Johnson v. Burrell, 2 Hill, 239; 1 R. S. 741, 2d ed., 11.)

3d. The provision is not to be construed as a limitation upon the acknowledged power of this court to deal with an infant's equitable estate.

V. By the terms of the trusts, the trustee is required to rebuild the premises out of the rents and profits, and to pay over the net proceeds for the support and maintenance of the family of Carter. The mortgage in question was, therefore, not in contravention of the trust:

Because, 1st. The premises having been destroyed by fire were rendered unproductive and useless, unless the same could be rebuilt; the whole object of the settler would have failed, and his general intent, the providing a support for his family, have been defeated.

2d. The general intent, is always to be regarded and observed, even at the expense of defeating a particular intent. (Doe v. Applin, 4 T. R. 82; Jackson v. Veeder, 11 John. 170; Schermerhorn v. Schermerhorn, 6 John. Ch. R. 70; Wilson v. Troup, 7 ibid, 25; S. C. 2 Cow. 195, and cases cited; Wilson v. Halliday, 1 Russ. and Myl. 590; Kingsland v. Betts, 1 Edw. 596; Long v. Long, 5 Vesey, 445; Kenworthy v. Bate, 6 ibid. 793; 1 Sugden on Powers, 547.)

. 3d. The general intent of the testator, requiring a rebuilding of the premises to make them productive, and such rebuilding being directed to be made out of the rents and profits, and it being impossible that the same should be done out of their annual perception; this court had jurisdiction to raise the necessary sum by a mortgage upon the premises. (Allan v. Backhouse, 2 Ves. & Beames, 66, and cases cited; Baines v. Dixon, 1 Ves. Sen. 42; 1 R. & M. 590; 6 John. Ch. R. 70; 1 Edw. 596.)

VI. The mortgage in question, having been executed in conformity with, and by virtue of an order of this court, the defendants cannot in this suit, impeach the order as being fraudulently and improvidently obtained. (Bennett v. Hamill, 2 Sch. & Lef. 566, 577; Grignon's Lessees v. Astor, 2 Howard U. S. 319; Cochran v. Van Surlay, 15 Wend., 447; Story's Eq. Pl. 340; Elliott v. Pell, 1 Paige, 263.)

Pitcher v. Carter.

VII. No facts having been misrepresented in the petition for leave to mortgage, or in the report of the master made thereupon, and it appearing that it would be for the benefit of the infants that the mortgage should be made; the order authorizing such mortgage, cannot be impeached on the ground either of fraud or improvidence.

1st. The leases of the premises, made after the execution of the trust deed, and not by the trustee, but by two of the cestui que trust, gave no title whatever to the lessees, and were ineffec. tual and void. (Blake v. Foster, 8 T. R. 487; Webb v. Russel, 3 T. R. 392; Platt on Cov. 462; Russell v. Cook, 3 Hill, 504.)

2d. Even if the leases were valid in their inception, it is evident from their contents, that they carried no interest in the land, but simply an interest in the building; and the building having been totally destroyed by fire, the leases by such fire were wholly put an end to. (Kerr v. Merchant's Exchange Co. 3 Edw. 315, and cases cited; Winton v. Cornish, 5 Ohio R. 303.) VIII. The mode in which the mortgage moneys were advanced, to wit, by rebuilding the stores upon the mortgaged premises, and paying therefor by interests in the mortgage itself; was not a substantial, or other violation of the order of this court, directing the execution of the mortgage; because it sufficiently appears in proof, that the builders, in taking such interests as their pay, demanded and received no more than they would have done, had the payments been made in cash.

IX. The complainants are entitled to a decree of foreclosure and sale of the mortgaged premises; or if the mortgage be not valid, to a lien for the money, labor and materials expended for the defendant's benefit. (2 Eq. Cas. Abr. 488; Hillyer v. Bennett, 3 Edw. Ch. R. 222.)

E. Sandford and C. O'Conor, for the defendants, argued the following points:

I. The Court of Chancery had no jurisdiction, independently of the statute, to order a sale of, or to sell the real estate of infants, on the ground that such sale would be beneficial to their interests. (Calvert v. Godfrey, 6 Beavan, 97; Peto v. Gardner,