Brainard v. Hastings

By the Cowrt

— Atwater, J.

It is urged by the counsel for the Plaintiff in Error, that this Court should review the finding of the Beferee, before whom the cause was heard, on questions of fact found by him. We might perhaps have that power on appeal, but this case comes before us on'a Writ of Error, and we find no authority which goes to the extent of granting or conceding such power in reviewing cases on Writ of Error. We are cited to 7 Wend. 178 and 25 do. 143, but those cases do not hold such a doctrine. The case of Burhcums vs. Van Zandt, 7 Bar. 91, was brought before the General Term of the Supreme Court, on exceptions to the report of a Referee, and. it is there rather intimated than decided, that upon “exceptions” or “appeal,” all questions decided, of fact as well as law, were the subject of review. The question was first raised the present term before this Court, whether a Writ of Error would lie in an equitable action, and we held that it would. In civil actions, we presume it would not be claimed, that anything save errors of law could be reviewed on Writ of Error. But the change made in equitable proceedings by the act of 185B, (Stat. Mwm.p. 480, seo. 1,) places all actions upon the same footing, so far as the machinery or forms by which they are conducted, are concerned, and the office of a Writ of Error is the same, whatever be the nature of the action. The object of the Legislature in abolishing the Court of Chancery and the forms which had obtained in equitable actions, was to simplify the practice and proceedings in such actions, and this end will best be attained, by confining the purposes of a Writ of Error in all cases within the well defined limits prescribed for it.

In this view of che case therefore, we cannot examine whether the Court below erred in affirming the finding of the Referee, “ that the debts or notes still unpaid upon the purchase money of said real estate, were considered in said terms of dissolution, assumed by Brainard, and that Hastings is not liable to said Brainard for contribution upon any sums of money alleged by said Brainard to have been paid by him since the dissolution of the partnership,” those being questions of fact, depending entirely on the proofs, of the effect and conclusiveness of which the Referee was sole judge. But even were we at liberty to enter into an examination of the evidence on these points, we are far from being satisfied that the finding of the Referee upon the facts was not correct. The testimony in regard to the dissolution of the partnership, and the property received, and debts assumed by each party thereupon, is somewhat conflicting, and is not placed in clear light by the proof. But the difficulty seems not to be, (as suggested by the counsel for the Plaintiff in Error,) that the facts are intricate and ob-scare, but from the very loose manner in which the parties made their contract. "Where so large and varied an amount of property as was held by the Plaintiff and Defendant in common, is disposed of by a merely verbal and informal agreement, it is easy to conceive how misunderstandings might arise, without imputing fraud or bad faith to either party. And if injury is suffered in consequence of such misunderstanding, the sufferer has but little claim to the interposition of the Court for redress.

It is urged by the counsel for Plaintiff in Error, that “ lands purchased with partnership money, are partnership property, —assets—and that under the agreement as the Beferee finds the facts, all the land which is the subject of this action, passed to Brainard, and Hastings has no interest whatever, (in these lands,) and that the Court below erred in decreeing a partition, giving to Hastings the one half of the lands.” But the answer admits the ownership of the plaintiff below to an undivided one-half of the lands in dispute, and also avers that he “ has always been ready and willing, and still is ready and willing that the same should be divided, or sold, as prayed for in the complaint.” He claims, however, that the proceeds should be applied towards satisfying the mortgage executed by the parties to Oliver Ames, and repaying the Defendant the one-half the amount, which he alleges he had paid individually on the joint obligation of the parties, previous to the commencement of the suit. But the Beferee has found as a question of fact, that on the dissolution of the partnership between the parties, the Defendant Brainard assumed all the joint obligations of Hastings and Brainard, comprising those set up in the answer, and that the Plaintiff was not liable to the Defendant for contribution on any joint obligations paid by the latter individually. Under the admissions and statements in the pleadings,, this was the only material issue in the case, and was found by the Beferee against the Defendant, which finding we cannot review (as above stated,) on "Writ of Error. The decree must therefore be held correct, in ordering the Defendant to pay the balance remaining unpaid on the mortgage given to secure the purchase money for the land, and that the said mortgage should be a specific lien upon, and be first satisfied out of that part of the real estate mortgaged, which was owned by the Defendant. The finding of the Beferee, shows that Brainard has received a verbal consideration from Hastings, for his agreement to assume and pay the debts of the firm, and places Hastings in equity, in the position of a purchaser from Brainard, of his (Brainard’s,) interest in the land in dispute ; and by the rule established in equitable actions of this kind, the real estate of the Defendant which was mortgaged for the purchase money, should first be applied towards the satisfaction of the mortgage. Clowes vs. Dickenson, et. als., 5 John. Ch. R. 235; Gill vs. Lyon, 1 John. Ch. 447; James vs. Hubbard, 1 Paige, 228; 8 Paige, 277.

It is further claimed on the part of the Plaintiff in Error, that the report of the Beferee does not find all the facts upon the issues in the cause, or rather that some of the issues are left undetermined. The objection is well taken, if it shall be found in fact, that there are material issues in the cause, upon which the Beferee has not passed, as either party has a right to the judgment of the Court, upon all such issues. It is alleged in the complaint, that one Byers has an estate or interest in the lands which is the subject of the action, which was obtained from, or acquired through the Defendant Brainard.

This is denied in the answer, and there seems to have been some evidence upon the point before the Beferee, although he has not passed upon it. But the answer having admitted that the Plaintiff is entitled to an undivided half in the premises, it is immaterial (as between the parties,) whether the Defendant has disposed of any part of the land in question, or not. Byers does not claim against the Plaintiff. The right of the Plaintiff standing admitted, it is unnecessary to ]Dass upon that question, and it does not seem to be properly in the case, and ' the issue being immaterial, the report should not be set aside, nor referred back on that ground. That only material issues need be considered by the Referee, see Van Steenburgh vs. Hoffmann, 6 How. Pr. P. 492; Lakin vs. N. Y. & E. RR. Co., 11 do, 412; Renovil vs. Harris, 2 Sand. 641.

It is also claimed by the counsel for the Plaintiff in Error, that the- pleadings admit, and the evidence shows that Brain.arel bad paid considerable sums of money individually upon tbe lands in question, and that tbe report is silent upon tbis point. Tbe very statement however, that tbe pleadings admit tbe fact, shows that no issue was made upon it, and consequently there was nothing for tbe Beferee to find thereon.

Tbe only issue relating to that point was, as to whether tbe Plaintiff was liable to tbe Defendant, for contribution, on sums paid by tbe latter individually for tbe land in question. Tbis issue was found against tbe Defendant and disposes of tbe objection, for that finding applied to all payments that bad been or which were to be made by tbe Defendant on account of tbe lands purchased by tbe parties of Ames.

Tbe judgment of tbe Court below is affirmed.