Johnson v. Quackenbush

The entry of the order to close the proofs iq this case, after the expiration of the sixty days to which the time to take proofs was extended by the order of the 5th of July, 1845, was regular; and was, I believe, in accordance with the general understanding and practice of the profession in such cases. It is true, the 15th rule of this court declares that where the service of a notice or paper is upon an agent, or through the post office, there must be double the time of service which would be requisite if the service was upon the solicitor in person. But the service of an order which merely enlarges the time to produce proofs in a cause, does not come within the provisions of this rule. Where the object of the service of a paper or notice is to restrict the rights of the adverse party, if he does not act upon it within the time required by the practice of the court after such service, the 15th rule gives him double the ordinary time, if the service is made upon his agent, or through the medium of the post office. For the legal presumption, in such a case, is, that the delay in obtaining actual notice of the ser vice of the paper or notice will render more time necessary to do the act required, than if such paper or notice had been served upon the sol icitor himself. But no such presumption can arise in a case where the notice or paper served enlarges, instead of restricts, the time within which the party, upon whom it is served, was previously bound to do the act required. Here, the original order to produce proofs required the defendants to produce the same within forty days after service of notice of the order. And as the service of the order restricted their right, which was before unlimited, and as that service was upon the agent, the defendants had double the time, or twice forty days, after the service of that order, to produce testimony; before an order could be entered to close the proofs. The right to enter an order to close the proofs being reciprocal, under the provisions of the 68th rule, neither party could enter the order, upon such a service, until after-the expiration of tire eighty days. (James v. Berry, 1 Paige’s Rep. 647.) The order of the 5th of July, however, did not require either party to produce witnesses within a specified time after service of that order. But it merely extended the time, which *296Was previously restricted to the 5th of July, sixty days from that time; and whether the order was served personally, or upon the agent of the complainant’s solicitors, the time of such extension was limited to the sixty days allowed by the order of the court. ■ For, the rights of the parties to enter an order to close the proofs being reciprocal, if the practice contended for by the complainants in this case is sanctioned by the court, a solicitor who obtains an order, from the court, extending the time to produce witnesses for a certain number of days, can always obtain double that time, when he resides in a different city or town from the adverse party, by merely serving his order through the medium of the post office.

The solicitors of the complainants have, in this case, however, undoubtedly mistaken 'the practice; and I should be disposed to open the order to close the proofs generally, if there was any" reason to believe it would be conducive to the ends of justice. The defendant Lawrence does not, in his answer, state that he' was aware of the existence of the mortgage of October, 1823, at the time of the assignment from Barbero. But hestates that,, previous to' such assignment, G. Quackenbush told him the-premises were free from incumbrances. His rights, however, do not depend upon that question, but upon the question whether Barbero was a bona fide mortgagee, without notice of the existence of a prior mortgage which was a valid and subsisting incumbrance upon the premises. For if that mortgage was not legally proved, or acknowledged,- so as to entitle it to be recorded, the bare fact of its being upon the record was not constructive notice to any one. And, if Barbero states truly, that John Quackenbush informed him that the mortgage had been paid, Lawrence, as the assignee of Barbero, is entitléd to protection, as a bona fide purchaser under him; even if Lawrence had learned, previous to the assignment, that the complainants claimed there was such a mortgage as they are now attempting to foreclose, and that it was still unpaid.

The documents which the complainants propose to offer in evidence, are not such papers as could be acknowledged, and read in evidence without proof of their execution, at the time *297they purport to have been acknowledged. And the names of the subscribing witnesses to the release of John Quackenbush, are not in the list of witnesses whom the complainants have a right to examine. Indeed, the instruments themselves, if fully proved, would be wholly immaterial. For if Alida Quackenbush survived her brother, so as to give her any interest whatever in his estate under his will, that interest must be considered, in equity, as converted into personalty at the death of the testator. (Hutchinson v. Mannington, 1 Ves. jun. 366.) And the proceeds would therefore belong to the husband of the legatee, upon her death, as a part of her personal estate; and not to her children as real estate. (Ashby v. Palmer, 1 Meriv. 296. Doughty v. Bull, 2 P. Wms. 230. Bartholomew v. Meredith, 1 Vern. 176. Maherly v. Strode, 3 Ves. jun. 460.) It may, however, be material in this case, to show that Alida Quackenbush survived her brother, and did not die in his lifetime, as supposed by one of the defendant’s witnesses. For if she died first, her children, and not her husband, would be entitled to a portion of her lapsed share of the estate of the testator; as property undisposed of by the will. And the share of Garrett Quackenbush in that property, which was received by his father from the executors, would be properly applicable to the payment of the mortgage held by the father. The complainant must therefore be permitted to examine any witnesses named in their original list, to prove the time of her death; unless the defendant’s counsel shall, within twenty days, stipulate to admit the fact, upon the hearing of this cause, that she died after the death of her brother, the testator. If that fact is not admitted, the order to close the proofs must be so far opened as to permit either party, within sixty days after the entering of the order upon this decision, to examine witnesses to that point only. But if it is admitted, then the order is not to be opened for any other purpose than to examine witnesses as to the general character of J. Barbero, as to truth and veracity. Upon that point there is a conflict of testimony on this motion, though the weight of evidence is clearly in favor of his veracity. On a question of so much importance in this cause, however, I cannot deny the *298complainants the right to impeach him, if he is, in fact, not to be credited. The order to close the proofs must, therefore, be so far opened as to permit either party, within sixty days after the entry of the order hereon, to examine witnesses as to that point; and then the proofs are to be considered as closed without the entry of any further order. The complainants, however, must, in any event, pay to the solicitors of the defendants Lawrence and Barbero, their costs of opposing this motion, to be taxed; and within twenty days after service of a copy of the taxed bill, and a demand of such costs.