Resolved, That the chairman and secretary cause the proceedings of this meeting to be published, and that they also furnish to each of the judges of the supreme court, and to the chancellor, a copy of its proceedings.
Dear Sir: It affords us pleasure to be the medium of communicating to you the foregoing resolutions; and at the same time to beg that you will accept the assurance of our individual regard.
A. L. JORDAN.
H. R. SELDEN.
Saratoga Springs, June 19, 1848.
Permit me through you to tender to the gentlemen of the bar my most grateful acknowledgments for their kind and complimentary resolution, which you were instructed to communicate to me, and which I received a few days since.
The intimate and very pleasant relations which have existed between the members of the bar of this state and myself, since I took a seat upon ne bench, and the uniform support and kindness I have received from them during the judicial labors of more than a quarter of a century, will ever be remembered with feelings of the deepest gratitude. If in the discharge of my official duties as chancellor any judicial reputation has been acquired, I am mainly indebted for it to the great aid I have constantly received from the profound researches and the able discussions of a most enlightened and intelligent bar; a bar composed of gentlemen whose legal learning is at least equal to that of the bar of any other state or country, and who for love of truth and justice are not surpassed by the members of any other profession, or of any class of society.
The very flattering commendation of my judicial services, by this resolution of my professional brethren who have witnessed the manner in which those services have been performed, and who can best appreciate their value, is most gratifying to my feelings; as it is the strongest assurance I can receive that my honest endeavors to discharge the high trust, committed to me by my fellow citizens, in such a manner as to benefit those from whom I received it, have not wholly failed. VOL. III.
Have the goodness to communicate to the legal gentlemen whom you represent, my best wishes for their prosperity and happiness, individually as well as collectively. May they continue to maintain that love of truth and justice which is so essential to their usefulness in the profession; and may they all possess that high Christian morality and faith which is necessary to solace them in a dying hour. And accept for yourselves, gentlemen, the assurance of my sincere respect and esteem.
Messrs. A. L. JORDAN and H. R. SELDEN, Chairman and
Secretary of meeting of the members of the bar.
An agreement, by a creditor, to accept a
part of an admitted debt in satisfac-
tion of the whole, without any other
consideration, is not sufficient to dis-
charge the debtor from the payment
of the residue. But if the debtor, in
addition to the agreement to pay part
of the debt, gives to the creditor any
thing which in judgment of law can
be considered a benefit to him, and
the creditor accepts it as a satisfac-
tion of the whole liability of the debt-
or, it is a good accord and satisfaction
to release the debtor from further lia-
bility. Douglass v. White,
count to the next of kin, as an exec-
utor of his own wrong. Where per-
sons have received and disposed of the
property of a testator, without having
been duly appointed his executors, or
duly authorized to act as such, they
are liable to his personal representa-
tives, whenever such representatives
shall have been appointed; but not
to persons claiming to be next of kin
of the decedent merely.
ib
See HUSBAND AND WIFE, 10, 11.
TRUSTS AND TRUSTEES, 1, 2.
See HUSBAND AND WIFE, 1, 3.
LITERARY PROPERTY, 1.
1. A bill, by persons claiming to be next
of kin of a testator, against the exec-
utors, for an account, making persons
claiming an interest in the personal
estate, as next of kin, parties defen-
dants, but alleging that the latter
have no right, title, or interest in the
estate, either as next of kin or oth-
erwise, is demurrable, as to them.
Muir v. Trustees of the Leake and
Watts Orphan House,
477
2. Under the provisions of the revised
statutes no one can be liable to ac-
1. The principle upon which courts of
equity hold that a part performance
of a parol agreement respecting land
is sufficient to take a case out of the
statute of frauds, is that a party who
has permitted another to perform acts
on the faith of such an agreement,
shall not be allowed to insist that the
agreement was invalid because it was
not in writing, and that he is entitled
to treat those acts as if the agreement
in compliance with which they were
performed had not been made. Low-
ry v. Tew,
2. Taking possession of land under a
parol agreement, and in compliance
with the provisions of such agree-
ment, accompanied by other acts
which cannot be recalled so as to
place the party taking possession in
the same situation that he was in be-
fore, has always been held to take
such agreement out of the operation
of the statute of frauds.
ib
3. Although a party who has gone into
possession of premises under an agree-
ment to purchase the same is, at law,
a tenant at will to the holder of the
legal title, yet if he is in under a writ-
ten agreement, made by the owner, to
sell and convey the premises to him,
or under a parol agreement which has
been so far consummated as to enti-
tle him to a specific performance, he
is in equity considered the owner of
that title for which he contracted,
and which the vendor is able to give
him. And if that title is an equity
of redemption, he has the same claim
to redeem, except as against bona
fide purchasers without notice of his
equitable rights, as if the equity of
redemption had been conveyed to him
at the time when his equitable rights
accrued under the contract.
ib
4. In May, 1825, L. and wife leased to
H. a piece of land, in the city of
New-York, for the term of 21 years.
The lease contained a covenant that
at the end of the term the premises,
and the improvements thereon, should
be separately valued and appraised,
by sworn appraisers; and that in
case the lessors should not, within
ten days after the appraisement, elect
to take the improvements at their ap-
praised value, then the lessors would
sell and convey the premises to the
lessee, or his assigns, at the price the
same should be appraised or valued
at. H. assigned this lease to H. and
M.; who afterwards assigned the
same to The Sterling Co. In Janu-
ary, 1827, an agreement was made
between the lessors and The Sterling
Co., by which the former covenanted
with the latter that in case The Ster-
ling Co. should underlet or assign
any lot or lots upon which no build-
ing had already been erected, such
lots respectively to be 25 feet in front
and 100 feet in depth, and if the un-
der lessee or assignee of such lots re-
spectively should actually build, or
cause to be built, on each of the lots
so assigned, a two story dwelling
house or tenement, with a brick front,
then and in such case each and every
lot so underlet or assigned, and which
should have such dwelling house or
tenement erected thereon, should be
chargeable with the annual rent of
$60 only, as its proportion of the rent
reserved in the original lease; and
that such under lessee or assignee, at
the termination of the original lease,
should, in respect to the improve-
ments on such lot, be entitled to the
like appraisement and provisions as
were in that behalf specified in the
original lease. The Sterling Co. sub-
sequently divided the land into lots
of 25 feet in front and rear, and 100
feet in depth, and leased two of those
lots to B. for the residue of the term,
by separate leases; B. covenanting
with The Sterling Co. to pay the rent,
and the taxes and assessments, and
to build upon each of the lots a house
of at least two stories in height, with
a brick front. And The Sterling Co.
covenanted with B. that, at the end
of the term, he should, in respect to
the improvements on those lots, be
entitled to the like privileges, &c. as
were specified in the original lease.
The Sterling Co. subsequently re-as-
signed the original lease to H. & M.;
and by divers mesne assignments the
same came to, and was vested in, V.
at the expiration of the term. B., the
lessee of the two lots, instead of build-
ing a two story house with a brick
front on each lot, divided the two lots
into five; each lot or subdivision be-
ing 20 feet in front by 50 feet deep,
and fronting on another street. Upon
the corner lot there was erected by B.
or his assigns, a two story house with
a brick front. Frame buildings were
erected upon three of the other lots,
and a feed-store of brick upon the
fourth lot. These leases to B. after-
wards came by assignment to O. the
complainant. Shortly before the ter-
mination of the original lease, L. and
wife agreed with V., the then owner
thereof, to pay him for the buildings
upon the demised premises, and pro-
cured from him an assignment of all
his interest in the lease and leasehold
premises to their son M. L. Upon
the expiration of the lease L. and
wife claimed that the complainant
was not entitled to pay for the build-
ings so erected on the five subdivis-
ions of the two lots leased by The
Sterling Co. to B., because they were
not made in pursuance of the agree-
ment with The Sterling Co.; and re-
fused to join in the appointment of
appraisers of those two lots and the
buildings thereon. On a bill filed by
the assignee of B. against L. and wife,
to restrain the prosecution of suits at
law brought against him and his ten-
ants, to recover the possession of the
two lots leased to B., and for a spe-
cific performance; Held that the
buildings erected upon the lots leased
to B. were not such as were contem-
plated in the agreement between L.
and wife and The Sterling Co., or as
B. covenanted to build. That although
it was not required that the building
should cover the whole front of the
lot, 25 feet in width, yet that the erec-
tion of such a house as was described
in the agreement, if built partly on
one lot and partly on another, was not
a compliance with the terms of that
agreement, or with the covenant in
the leases to B., as to either lot. And
that the complainant, as the assignee
of B., was not entitled to any benefit
under the agreement of January, 1827;
the covenant in that agreement, giv-
ing to the sub-lessees, or assignees of
particular lots the right to an inde-
pendent appraisal of their improve-
ments, being limited to such lots as
should have been improved in the
manner therein contemplated.
trander v. Livingston,
5. Held also, that the rights of the com-
plainant, in reference to improve-
ments, were no greater than they
would have been had the agreement
of January, 1827, not been made.
And that under the covenant in the
original lease, the value of the whole
leasehold premises, and the value of
the whole improvements, were to be
separately estimated; that the cove-
nant giving the lessors the privilege
of taking all the buildings or improve-
ments at such valuation, or of con-
veying the whole of the premises de-
mised, upon being paid the price at
which the whole premises, exclusive
of the improvements, were valued, at
their election, was in its nature indi-
visible. And that if the entire interest
of the lessee in distinct parcels of the
demised premises had been assigned
to different individuals, all who were
interested in the performance of the
covenants, or in the different parcels
of the demised premises, must unite
in the appraisal; and in the purchase
of the whole premises, if the lessors
elected to convey the same at the ap-
praisal.
ib
Held further, that the effect of the
agreement of January, 1827, was the
same as if the particular lots which
were leased or assigned, and built
upon in conformity to the terms of that
agreement, had formed no part of the
premises originally demised to H. ib
And the bill showing that several
other lots of 25 feet by 100 feet, into
which the demised premises were sub-
divided, were sublet to different per-
sons, but not stating who such per-
sons were, or whether any buildings
were erected on their respective lots,
and if so, whether they were erected
in conformity to the provisions of the
agreement of 1827, also Held that no
relief could be granted upon the bill
of the complainant, as framed, even
if he had made out a case entitling
him to equitable relief in other re-
spects. And that M. L., the assignee
of the lease and of a part of the prem-
ises originally demised, so far as re-
lated to that covenant, was a necessary
party to any bill for a specific perform-
ance thereof by the lessors; even
though the consideration of the as-
signment of the lease to him was in
fact paid by L. and wife, the original
lessors.
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