Radcliff v. Rowley

The Vice-Chancellor :

The two principal grounds taken by the demurrer are, 1. That there is no equity in the bill; and, 2. That whatever be the equity stated, the relief is barred by the statute of limitations, as more than six years have elapsed since there has been a knowledge of the facts.

The bill tells the story of a series of frauds practiced by Mr. Rowley on his client and principal Van Benthuysen and on William Radcliff, the ancestor of the complainants. But it claims relief only in respect to that portion of the lands which were sold under the executions on the Banyan judgments in the month of April one thousand eight hundred and twenty-one.

The other portion, sold under the mortgage in the month of January one thousand eight hundred and twenty-one, is not attempted to be reclaimed; and if it were, the statute of limitations would be a bar. So, with respect to the two hundred and sixty acres sold under the executions : for if, by that proceeding, the complainants or their ancestor had been dispossessed of the land and the object of this bill were to set aside the sale and have a restoration of the possession and ownership, there would seem to be either no *652necessity for coming into this court or at this late day the claim to such relief would be barred by the statute.

The bill, however, shows that, notwithstanding the sheriffs sale and the failure to redeem in the year one thousand eight hundred and twenty-two, the ancestor, Radcliff, remained in the undisturbed possession down to the time of his death in the month of July one thousand eight hundred and forty-two. In the meantime, a litigation took place between Rowley and Van Benthuysen; and, as between them, the latter was adjudged to be the owner, subject to the lien or charge of the former for the balance of his account—and subject to that charge Rowley conveyed to Van Benthuysen on the seventeenth day of January one thousand eight hundred and thirty-nine. Thus, Van Benthuysen became vested with the legal title and, as between him and Radcliff, an equity arose that the latter should be protected against that legal title, by reason of Van Benthuysen’s covenants and warranty in his original deed to Radcliff.

It, then, appears that since the death of Radcliff, his heirs, the complainants, have remained in the undisturbed possession of the land; and that Rowley has obtained a decree for the balance due to him from Van Benthuysen. This decree was made on the twenty-fourth day of November one thousand eight hundred and forty; and was enrolled on the fourteenth day of September one thousand eight hundred and forty-two. Van Benthuysen died on the fourteenth day of March on& thousand eight hundred and forty-one and Rowley is proceeding to a sale of the land under' that decree—which was advertised for the seventeenth of September one thousand eight hundred and forty-four. It is alleged that this proceeding of Rowley’s and the sale he has advertised operate to the prejudice of the title of the complainants and to their possession and use and enjoyment of the property and they, therefore, claim to be protected in that possession and enjoyment as against Rowley and, also, as against his mortgagees, the Messrs. Crafts.

The bill appears to me to show a strong case for that purpose as against these parties. A case, too, of which chancery has jurisdiction on the ground of removing clouds *653from the title of the complainants and obstacles in the way of their full enjoyment of the property, which is an acknowledged head of equity: see The Mayor, &c. of Brooklyn v. Meserole, 26 Wend. R. 137.

I am of opinion, also, that this cause of equitable relief may well be considered as having arisen when Rowley undertook or threatened to enforce the decree for his balance against the land in question or that an equity arose to Rad-cliff to have the land exonerated from all claim of VanBenthuysen and of Rowley as his creditor the moment Rowley conveyed it to Van Benthuysen by his deed of the seventeenth day of Jannary one thousand eight hundred and thirty-nine. This was within six years of the time of filing the bill.

The demurrer must be overruled, with costs.