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And that this plaintiff may have such other and further relief as to this court may seem meet, with costs.

BEACH & SMITH,

Attorneys for Plaintiff.

(No. 79.)

To compel heirs-at-law, and their grantees, with notice of

plaintiff's equity, to convey to plaintiff certain real estate, sold by the ancestor of heirs to plaintiff, and paid for and possession delivered to him. Praying also an account of rents and profits, and for damages done to real estate, since plaintiff was dispossessed by defendants.

SUPREME COURT-SARATOGA COUNTY.

Walter J. Bruce

agt. Eliza Clarke, Thomas L. Clarke, George B.

Clarke, Eliza Thayer, Henry H. Hathorne, and Seymour Ainsworth.

The plaintiff, complaining of the defendants, says, that he resides in the county of Oneida, and the defendants reside in the county of Saratoga, in the State of NewYork; that in the year 1832 one John Clarke, of Saratoga Springs, in the county last aforesaid, was the owner and possessor of a certain house and lot situated on Federalstreet, in the village of Saratoga Springs, and described [setting forth description]; that the said John Clarke so owned the said premises, subject to an annual ground rent of $15, payable on the first day of April in each and every year thereafter to one Joel Clement, his heirs or assigns; that on or about the year first aforesaid, the said John Clarke, for a valuable consideration, sold the said house and lot to the said plaintiff, and then and there delivered to the said plaintiff the possession thereof, and said plaintiff thereupon entered into the possession of the said premises, and by himself, his tenants and agents, remained in possession of the same down to the latter part of the month of April, or the month of May, 1853, and in each and every year duly paid the said ground rent, and at his own proper costs and charges has paid and discharged all such taxes, duties and assessments as were charged, assessed or imposed upon the said premises ; and did all other things required by the terms and conditions of the said lease to be done by the said John Clarke.

And the plaintiff says, that at the time of the sale and delivery of the said lot, the said plaintiff paid to the said Clarke a part of the sum agreed upon between them as the purchase money for the said premises, and at different times thereafter, and previous to the 12th day of April, 1845, he paid to the said John Clarke divers sums of money thereon; and on the day last mentioned he settled with the said John Clarke, and paid him in full the principal and interest then remaining due thereon ; that on the said 12th day of April, 1845, and on divers days previous thereto, and at the time of the sale and delivery of the said lot, the said John Clarke, in consideration of the premises, agreed, to and with the said plaintiff, to assign to him, the plaintiff, the lease by which he, the said Clarke, held the said lot; but the plaintiff says, that at the time of the said settlement, on the 12th day of April, 1845, such lease was lost or mislaid, and could not be found; and in consequence thereof, the said John Clarke did not then execute or deliver to the plaintiff, the said assignment thereof as he then and there agreed to do; nor did he ever during his life find the said lease, or execute or deliver to the plaintiff an assignment thereof.

The plaintiff further says, that the said John Clarke died at Saratoga Springs, aforesaid, on the 6th day of May, 1846, and left a widow, the abovenamed defendant, Eliza Clarke, and three children his only heirs-at-law, the abovenamed defendants, Thomas L. Clarke, George B. Clarke and Eliza Thayer, the last of whom was then unmarried, and known by the name of Eliza Clarke, but has since then intermarried with one Mr. Thayer, who is now deceased.

Thc plaintiff further says, that after the decease of the said John Clarke, but at what time, he, the plaintiff, has no knowledge or information sufficient to form a belief, the said Eliza Clarke and the said children and heirs-at-law of the said John Clarke, found or recovered the possession of the said lease, and in or about the month of May, 1853, for a valuable consideration, they, the said Eliza Clarke, Thomas L. Clarke, George B. Clarke and Eliza Thayer, by a certain indenture of deed, of bargain and sale (brought here into court), sold, assigned and conveyed unto the said defendants, Henry H. Hathorne and Seymour Ainsworth, and their heirs and assigns forever, all their right, title and interest, of, in and to the said indenture of lease, and all their right, title and interest in and to the said premises, and all rights, equities and privileges conferred by the said lease; and covenanted for themselves, their heirs and personal representatives, that the said John Clarke, in his lifetime, did not do, and that since his death they had not done, any act or thing whereby the title to said lease, and the said John Clarke's interest in the said premises, had been or might be in any way impeached, impaired or incumbered, and that they had good right, full power and lawful authority to convey the said lease, and the leasehold interest in said premises thereby granted, in manner aforesaid.

The plaintiff further says, that at or about the time last aforesaid, one Robert O. Walker, who was the tenant of the plaintiff, and occupied the said premises as such tenant, quit and surrendered up the same to the said Eliza Clarke, Thomas L. Clarke, George B. Clarke and Eliza Thayer, at their request and by their direction, and without the knowledge or consent of the plaintiff'; and the last named defendants thereupon delivered the said premises to the defendants, Hathorne and Ainsworth, who since then have had and still have the possession thereof, and have received the rents, issues and profits thereof, and refuse to deliver or surrender the same to the plaintiff.

And, further complaining, the plaintiff says, that the said defendants, Eliza Clarke, Thomas L. Clarke, George B. Clarke and Eliza Thayer, did each and every of the acts and things above alleged to have been done by them ; and the said defendants, Hathorne and Ainsworth, did each and every of the acts and things above alleged to have been done by them, all with full notice and knowledge of the facts hereinabove set forth.

And, further complaining, the plaintiff says, that the said defendants have torn down and carried away the house of the plaintiff standing upon the said lot, whereby the plaintiff has been greatly damaged.

Whereupon the plaintiff demands the judgment of this court, that the said defendants execute to him a good and sufficient conveyance of the said premises; and deliver

to him the possession thereof, and account to him for the rents, issues and profits thereof, since he was dispossessed of the same, as aforesaid ; and pay to him $1,000 damages for the injuries done to and the waste committed upon the said premises by the said defendants; and that the plaintiff may have such further or other relief in the

up

premises as the nature of the case requires, and as shall be agreeable to equity and good conscience.

JAMES B. McKEAN,

Plaintiff's Attorney.

(No. 80.)

By several legatees, in behalf of themselves and other legatees

and devisees, against the personal representative of the testator and the residuary legatees and devisees, for an account of the personal estate, and of the debts, legacies, Sc., and to have the real estate sold, and the proceeds, together with the personal estate, applied in payment of the debts and legacies.

SUPREME COURT-COUNTY OF ALBANY.

Isabella McKenzie, Roderick McKenzie and

Barbara his wife, Elizabeth Ferguson, widow of George Ferguson, deceased, and James Ferguson, Elizabeth Ferguson and George Ferguson, children of Jane Ferguson, deceased,

agt.
James L'Amoureux, administrator, with the

will annexed of Mary McKay, deceased,
Solon H. Lathrop and Elizabeth his wife,
Caroline Jane Stewart, and Hallowell
Matilda Stewart.

The plaintiffs in this action, as well on their own account as on the account of the other legatees and

1 The complaint is from the reported case of McKenzie and others v. L'Amoureux and others (11 Barb., 516). It was held, by the General Term of the third district, that such an action might be

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