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CASES IN CHANCERY.

PITCHER and others v. CARTER and others.

Under a conveyance, prior to the revised statutes, in trust to pay the income to the grantors for life, and after their decease, to convey the premises to their heirs; the children of the grantors, while the latter survived, and after the statutes took effect, were held to have an equitable and not a legal interest.

The court of chancery could authorize a trustee to dispose of an infant's equitable estate, as the court deemed most beneficial for his interest.

A co-ordinate tribunal cannot review the decision of the court made upon an application for the disposal of an infant's equitable estate.

But where the order of the court in such a case is obtained by misrepresentation as to the situation of the property, and by concealment of facts very material to ‘he exercise of the judgment of the court; the order cannot be upheld in favor of parties participating in or chargeable with notice of such misrepresentation and concealment.

Two stores which were vested in a trustee, to pay the income to A. for life for her support and that of her family, and on her death to convey them to her infant heirs, were destroyed by fire. The stores and lots were then rented to responsible tenants, for six years ensuing, at $1500 a year each, who were bound to pay the taxes and assessments. The tenants, though clearly liable, insisted they were not bound to pay rent thereafter. A. and the trustee as such and acting for the infant children of A., petitioned the court of chancery, for authority to mortgage the lots, in order to rebuild. The petition set forth that the lots were entirely unproductive and would yield no revenue as they then were, and were liable and likely to be charged with taxes and assessments; whereas by rebuilding they could be rented for $4000 to $5000 per year. No mention was made of the outstanding leases in the petition, or to the master to whom it was referred. The court made an order authorizing A. and the trustee to mortgage the lots to raise money to rebuild; under which a mortgage for $14,500 was executed to the two tenants, who had notice of the misrepresentation and concealment of facts in the petition and proceeding before the master. Held, that the order of the court was obtained by a fraud against the infants and was void; and that the mortgage could not be enforced against them.

Held also, that the assignees of the mortgage received it subject to the infants equities, and could not recover upon it.

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Pitcher v. Carter.

An order of the court, authorizing a mortgage of infants lands, to raise money to be laid out in erecting buildings on the premises; does not authorize the trustee to contract for the erection of buildings to be paid for by a mortgage on the premises, executed to the contractor, having several years to run.

In a suit, simply to foreclose such a mortgage, the court, on declaring it invalid, cannot enforce the contractor's claim to be reimbursed for his services and materials.

Infants, upon whose lands an invalid mortgage, has been placed to erect buildings thereon, do not ratify the mortgage, by taking possession of the lands, on their attaining their full age.

May 4, 5, 6; Aug. 18, 1846.

THIS cause was heard on the pleadings and proofs. The bill was filed to foreclose a mortgage hereinafter described, on two stores, and the lot known as No. 84 Pearl street, in the city of New York. The heirs of T. Carter and wife, defended the suit. The material facts appearing on the pleadings and testimony, were as follows:-Thomas Carter and Cornelia his wife, the latter being seised in fee of the premises known as No. 84 Pearl street and No. 52 Water street, in the city of New York, together with lot 222 Cherry street, and a lot on Water street in its rear, on the 3rd day of November, 1829, conveyed the same in fee to John Sniffen, upon trust, that he should, whenever required, join them in mortgaging the premises for such sum as they might think proper; and upon the further trust, that he would, during their lives, receive the rents and profits, and after paying all expenses of repairs and rebuilding, if the case might require it, or otherwise improving the premises, and all other expenses of the trust, pay over to Thomas Carter during his life, the net proceeds quarter yearly, as the trustee might receive the same; to be applied by him for the support and maintenance of the family of Carter and wife so long as their joint lives should continue; and upon the death of either of them, to pay over in like manner, the net proceeds for the same purpose, to the survivor; and upon the decease of both, to convey the premises to the heirs of Carter and wife, to whom the same would, in due course of law, have descended.

On the same third of November, 1829, Sniffen, the trustee, joined Carter and wife, in executing a mortgage to James Roosevelt for $6500, on lot 84 Pearl street, on which there were two

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