220

CONVERSION AND RECONVERSION

8

II. Reconversion "

PRENTICE v. JANSSEN.

(Court of Appeals of New York, 1879. 79 N. Y. 478.)

MILLER, J. The complaint in this action demands an equitable partition or sale of several pieces of land therein described, upon a portion of which was erected a hotel, called the Pavilion Hotel, together with the personal property, consisting of furniture in said hotel, and that an account be taken of the disbursements and ex-. penditures made by the plaintiff, Augustus Prentice, for the benefit of and as additions to said property, and that the share of the defendant, Mary Ann Janssen, be charged upon the same and deducted from her portion of the proceeds of the sale of the property. The land belonged to Francis Blancard at the time of his decease in 1868, and the title is derived under the provisions of his last will and testament. The plaintiff, Augustus Prentice, holds three-fourths, by conveyances from the residuary legatees or their representatives, and the defendant, Mary Ann Janssen, the remaining one-fourth. The defendant last named has joined with the plaintiff in making leases of the property since 1873; large sums have been expended in making improvements by the owners, and the rents have been received and applied in part, if not entirely, for that purpose.

The residuary clause in the will of Francis Blancard devised and bequeathed his property to five of his children, among whom were Francis H. Blancard and the defendant, Mary Ann Janssen. It also authorized Francis H. Blancard to carry on the hotel business in the Pavilion Hotel, for the term of five years, if he so desired, and the executors were empowered and directed, after the testator's death, to sell and convert into money all the real and personal property of which he should be seised or possessed, including the hotel property, after the right of occupancy of his son had ceased, as they should deem advisable, and divide the proceeds equally among the residuary legatees. The son, Francis H., died before the testator, and no action was ever taken by the executors to sell the property, and it remained undisposed of, and was used and regarded by the owners as real estate to which they had title. Only one of the executors, the defendant, Gerhard Janssen, was living at the time of the commencement of this action, and he is made a party, as the husband of the defendant, Mary Ann Janssen, and does not by his answer claim any

3 For discussion of principles, see Eaton on Equity (2d Ed.) §§ 107, 108.

4 A portion of the opinion is omitted.

(

rights as executor or that he is a proper party as such. The answers admitted that plaintiff and the defendant, Mrs. Janssen, owned the property as tenants in common. We think that under the provisions cited from the testator's will, the executors who were donecs of a power took no estate in the lands as trustees, but merely a power in trust to be executed for the purposes of distribution, according to the will, which was liable to be defeated by a reconversion of the property, which was made personal by the will, into real estate.

The testator by the authority and direction to his executors to sell the real estate, constructively converted the same into personal estate, and being thus converted, the residuary legatees were entitled to take the same as such and had a right at their election to reconvert into real estate. No distinct and positive act is required for such a purpose, and the rule applicable to such a case is that "in the reconversion of real estate a slight expression of intention will likewise be considered sufficient to demonstrate an election on the part of those absolutely entitled." Leigh & D. Conv. (5 Law Library), m. p. 168; Mutlow v. Bigg, L. R., 1 Ch. Div. 385; 1 Jarm. Wills, 523 et seq. The real estate was not disposed of by the executors under the provisions contained in the will, and as there was no lawful purpose for which a sale was absolutely required there was no obstacle to prevent a reconversion of the same by the parties in interest from personal into real estate. This they elected to do by positive and unequivocal acts. Three of the four residuary interests were conveyed to the plaintiff, Augustus Prentice, and the defendant, Mary Ann Janssen, retained the other one-fourth. The whole has since been enjoyed, possessed and treated the same as real estate. This was done by the acquiescence of the executors and all the parties in interest, not only by possession, but by acts showing their intention beyond any question.

In Story, Eq. Jur. § 793, it is said that if land is directed to be converted into money merely, the party entitled to the beneficial interest may if he elects so to do, prevent any conversion of the property and hold it as it is. This has been done by the residuary legatees here; and as the lands were not sold and disposed of by the executors, and no diversion made, the rule applies that the person entitled to the money, being of lawful age, can elect to take the land, if the rights of others will not be affected by such election. Hetzel v. Barber, 69 N. Y. 1, 11. No rights of other parties were injured by the election to reconvert; and as three-fourths of the residuary interests had been sold and conveyed to the plaintiff by those who were entitled to the proceeds of a sale, if one had been made under the power, and the owner of the remaining one-fourth had assented to the reconversion, by exercising acts of ownership, and the purpose of the power had become unattainable, the power to sell became extinguished, and the plaintiff and defendant already named became owners as ten

ants in common. Hetzel v. Barber, supra; Garvey v. McDevitt, 72 N. Y. 563. Neither the will itself nor the surrounding circumstances evince in any way that the testator intended not only to confer a power of sale, but that the exercise of such power would become absolutely necessary to enable the executors to make the distribution required to the residuary legatees, within the principle laid down in Crittenden v. Fairchild, 41 N. Y. 289, 292, which is relied upon by the defendant's counsel.

The facts here are far different from the case cited. The distribution was actually made and the purpose of the will fully accomplished by the reconversion of the personal estate into real estate by the parties in interest, as is quite obvious, and each of the legatees had received their full share as directed; thus rendering the exercise of the power of no avail. It follows that the executors having only a power to sell for the purpose of distribution-which power never was exercised, and which became of no use by reason of the reconversion of the land into realty-Gerhard Janssen, the surviving executor, had no right, title, interest, or lien upon the property, which rendered him a necessary party to the action as such executor. The provision of 1 Rev. St. p. 735, § 107, which makes a power of sale a lien or charge upon the land, has no application when it had ceased to operate, and was of no practical use. As by the reconversion no interest remained in the executors, there could be no lien or charge upon the land. Equity would not interfere to compel the execution of the power under 1 Rev. St. p. 734, § 96, because the purpose had been accomplished without its exercise.

* * *

There was no error, and the judgment should be affirmed. All concur. Judgment affirmed.

223

GALBRAITH v. BARNARD.

(Supreme Court of Oregon, 1891. 21 Or. 67, 26 Pac. 1110.)
LORD, J. This is a suit in equity to enjoin the enforcement of a
judgment rendered in a justice's court in favor of the defendant and
against the plaintiff. The facts are these: The plaintiff commenced
an action in the court aforesaid to recover from the defendant the
value of a heifer, alleged to have been converted by him, upon which
issue was joined, and the cause tried before a jury, which resulted in a
verdict and judgment for the defendant for his costs and disburse-

ments..

The judgment was entered on the 12th day of November, 1888, and it is alleged that on the 30th day of November, 1888, the justice before whom the cause was tried, resigned, and, the said office remaining vacant for some time, he was prevented thereby from perfecting his appeal. It also appears that, within the time allowed by law, the plaintiff prepared and served his notice of appeal, and presented the same, together with a duly-executed and proper undertaking to stay proceedings therein; but the justice having at the time stated resigned his office, and the office being vacant, and no one to act in the premises, he lost his right of appeal, without any fault on his part.

Under the Code, an appeal may be taken to the circuit court from a judgment given in a justice's court within 30 days from the date thereof. Deady's Code, p. 471, § 68. According to the facts, from the date of the rendition of the judgment and its entry until the resignation of the justice, of the 30 days within which an appeal may be taken, 18 of such days were permitted to elapse before any effort was made to perfect the appeal. Upon this state of facts the plaintiff contends that, having lost his right of appeal from the judgment rendered in the justice's court, without any fault on his part, but by unavoidable accident, he is entitled to the aid of the injunction to prevent the enforcement of such judgment, and to a new trial of the

cause.

It is to be noted that a complaint for a new trial is watched by eq-ha?

uity with extreme jealousy. There must always exist some good and
substantial reasons to authorize or justify a court of equity in taking
cognizance of a cause which has already been determined at law.
"Whenever a party," says Mr. Freeman, “asks a court to grant him
a new trial, he must show some reason for not getting it at law."

1 For discussion of principles, see Eaton on Equity (2d Ed.) §§ 109-111.

Freem. Judgm. § 506. Some ground for equitable relief must be shown, for a court of equity possesses no supervisory powers, and cannot assume to act as an appellate court to correct judgments at law, although manifestly erroneous. If the judgment rendered is not inequitable as between the parties, no matter how irregular the proceedings may be, a court of equity will not interfere. 10 Amer. & Eng. Enc. Law, p. 898.

The principle is fundamental that, when a party has had full opportunity to be heard and make any defense he may have before verdict and judgment is rendered against him, equity will not aid him, and grant relief, after such verdict and judgment, unless obtained by fraud, accident, or mistake, unmixed with any fault on his part. A judgment at law ought to be conclusive on the matter in dispute, both as settling the rights of the parties and to put an end to litigation, unless it affirmatively appears that such judgment is wrong, and that it would be against equity and good conscience to have it enforced. It is not enough that the judgment may be wrong, but some equitable consideration also must be shown to exist to warrant the interference of equity. The facts alleged show that the justice's court had jurisdiction; that both parties appeared before it and joined issue; that a trial was had by a jury; and that the verdict and judgment was regularly found and entered.

All this tends to show that the judgment was right, and the rights of the parties legally determined. There is no suggestion that the trial was unfair, or that the court erred in the admission or rejection of evidence, or in any of its rulings, or that the verdict or judgment was obtained by fraud, or by any act of the prevailing party, or that the plaintiff was prevented from making any defense to the action, or in any way whatever prevented from fully and fairly presenting his cause to the jury and the court.

So far there is nothing to warrant even the inference that there was any failure of justice, or that any injustice had been done by the verdict and judgment. The plaintiff puts himself upon the bare proposition that, having lost the benefit of his appeal by accident, he may properly seek relief in equity, without regard to whether or not the trial already had was fair, or the judgment rendered therein was against equity and good conscience. But accident alone is not sufficient. There must be some failure of justice from the accident-some circumstances of hardship or fraud, as the case may be to warrant the interference of equity.

In Johnson v. Branch, 48 Ark. 536, 3 S. W. 819, it was shown there was no opportunity afforded the party against whom the judgment was rendered to move for a new trial, because the court adjourned and the term lapsed before the motion could be made and disposed of; and the court say: "This was such an accident as would give jurisdiction to a court of equity to grant relief, provided the party complaining was otherwise entitled to it. The accident alone does