
    Requa et al. v. Holmes.
    The decision in this case (16 N. Y., 193), reiterated: that, in a suit for partition in .equity, no step can be taken, after the death of one of the tenants-in-common, without a revivor: that a sale, after his death, and after the bill had been taken ■ confessed against him, without revivor, is void as against his heirs: that such heirs are not required to avoid the decree for sale by motion in the original suit, writ of error or appeal, but can impeach its validity in an action of ejectment for the land of their ancestor.
    It is no estoppel of the heirs, nor any ratification by them of the sale, that, upon the petition of the representative of their ancestor’s grantor, assuming to act also in their behalf, a portion of the proceeds, of sale were applied to the payment of a judgment against such grantor; nor that, upon the consent of one assuming to act as their solicitor, a portion was invested as a dower fund for the widow of the grantor; nor that, after the death of the widow, and pending their action to recover the premises, the heirs received their proportion of the fund so invested. This was no election to take the' money instead of the land.
    It is not material that the purchaser at the sale in partition made valuable improvements, with the knowledge of the plaintiffs, and without any objection by them.
    
      A deed, conveying to the surviving plaintiffs so much of the interest in the land of a co-plaintiff, who died pending the ejectment, as had descended to two persons not plaintiffs, is not void by reason of the possession at its date of the defendant.
    Appeal from the Supreme Court. The action was commenced at the January term of the court in 1844. The declaration was the ordinary one in ejectment, as the practice then existed; and the plea was not guilty. The cause was tried at the Westchester Circuit' in November, 1834, and the defendant had a verdict, which was afterwards affirmed at a general term, and judgment entered for the defendant. A writ of error was brought on this judgment to the Court of Appeals, ■ and in October, 1857, this court reversed the judgment and ordered a new trial. (16 N. Y., 193.) In August, 1859, by leave of the Supreme Court a supplemental and amended complaint was filed and an answer put in by the defendant, in which answer matters occurring during the pendency of the proceedings were set up as an additional defence.
    The supplemental and amended complaint set forth the proceedings in the action; and by way of supplement and amendment alleged that since the joining of issue, Clara Requa, one of the plaintiffs, had died intestate, and without issue, leaving the remaining plaintiffs, and Jacob Requa and Amy Wiltsee, her brothers and sisters, her only heirs-at-law, and the descent of her share of the premises to her said heirs; that since her death her brother, Jacob Requa, had conveyed the interest that descended to him from Clara, to Nathaniel Requa, one of the original plaintiffs; and that since her death her sister, Amy Wiltsee, had conveyed her interest, that descended to her from Clara, to Q-loade Requa, one of the original plaintiffs; that since the joining of issue James Requa, one of the original plaintiffs, had died intestate, leaving issue who are named, and who are now plaintiffs in this action, and the descent of his interest in the premises to said issue; that the action had, by an order made since the death of said Clara and James, and since said conveyances, been revived and continued in the name of the present plaintiffs; that the present plaintiffs are seised of and entitled in fee simple to the said lands and premises described in the said declaration and thereinbefore described; that the defendant had entered upon the said lands and premises and ejected the plaintiffs, and unjustly withheld the possession thereof: demands judgment for possession of the premises and for mesne profits.
    The answer to the supplemental complaint as amended, denied every allegation contained therein, and alleged that the lands in question were a part of the real estate of Isaac Requa deceased, and were in 1821, conveyed by a master in chancery to Steuben Swartwout, the grantor of the defendant, under and by virtue of a decree of the Court of Chancery made in a suit to partition said lands; that by proceedings in said suit the net proceeds in money of said lands were retained, invested or disposed of by the court; that pursuant to law said moneys came into the custody of the chamberlain of the city of Hew York; that on the application of the plaintiffs in this action an order was made by the Supreme Court in 1855, directing a distribution of said moneys to and among the plaintiffs in this action, and other persons entitled; that pursuant to said order, the plaintiffs or their ancestor received from said city Chamberlain seven-ninths of said money; that the plaintiffs were thereby estopped; that the plaintiffs were parties to the partition suit, and if any irregularity existed in that suit, it had been waived and cured by the receipt of said money. Affirmative relief was demanded that the plaintiffs might be enjoined from asserting any claim to or attempting to recover any part of said premises.
    The new trial ordered by this court took place before Mr. Justice Brows' (without a jury), in March, 1860. On this trial all the evidence given in the former trial was read; and new evidence of matters occurring in 1855 was given. The judge ordered judgment for the defendant, allowed an amendment to the answer after this hearing, ordered an injunction against the plaintiffs, and judgment for costs. The judgment was affirmed at the general term in February, 1861, and an appeal taken from this judgment by the plaintiff to this court; and at the September term in 1861, the judgment was reversed and another new trial ordered.
    The second new trial took place at the March circuit in 1862, before Mr. Justice Lott and a jury. On the trial the same evidence was given as on the first new trial before Judge Brown, the same being read from the case printed on the appeal to this court, by stipulation between the parties, and no new evidence was given, except on the question of mesne profits. On this trial, by direction of the court, a verdict was rendered in favor of the plaintiffs, upon which judgment was afterwards- entered, and which judgment was affirmed at a general term in September, 1862. From this last judgment the present appeal was taken.
    The action was tó recover seven parts of an undivided sixth part of about twenty-three acres of land in Greenburgh, Westchester county. These facts were disclosed: The premises, together with other lands, formerly belonged to one Isaac Bequa, who previously to 1826 died intestate, and without issue. He left surviving him two brothers, two sisters and the children of two deceased brothers; and also a widow. Samuel Bequa was one of these brothers, and was entitled to one-sixth part of the lands, as heir of his brother, Isaac Bequa, deceased. The plaintiffs were, or represented, seven of the nine children of Samuel Bequa, who died intestate on the 18th June, 1826, and claimed by descent seven-ninths of one-sixth part of the lands in suit. It was conceded that Samuel Bequa owned the undivided sixth part prior to April, 1826, when a partition suit in chancery to divide the premises was commenced. On the 18th April, 1826, Isaac Davids and Julia Ann, his wife (who was a niece of Isaac Bequa), filed a bill in chancery for a partition of all the lands of which Isaac Bequa died seised, and made parties defendants the other heirs-at-law, and among them Samuel Bequa, the father of the plaintiffs, and Harriet Bequa, the widow of Isaac. The lands to be partitioned were in six parcels. On the 29th May, 1826, the bill of complaint was taken as confessed against Samuel Bequa and the other defendants. On the 18th June, 1826, and before any other proceedings took place in the suit, Samuel Requa died at Green-burgh, intestate, leaving issue nine children, of whom the plaintiffs represent seven, and Jacob Requa and Amy (after-wards by marriage Wiltsee) were the others. Without any notice of the termination of Samual Requa’s interest, or any proceedings to bring in those to whom his title had' passed, the suit in partition was proceeded with as follows: On the 23d June, 1826, an order was entered referring it to a master to report if a partition could be made or a sale was necessary. On the same day the master reported that a sale was necessary; and on the day following the master’s report on the title was filed, stating the rights and interests of the parties, and not noticing the death of Samuel Requa. On the 24th June, 1826, a decree was made confirming the master’s report, reciting it as to the interests of the parties; adjudged them to be seised in common of the shares as reported, and ordered the lands to be sold. On the 16th August, 1826, the lands were all sold; four parcels, containing 127 acres (and including the premises in question) to Steuben Swartwout for $3,709.60, being at the rate of $29 per acre. On the 6th November, 1826, the master’s report of sale was filed, and an order made confirming it, and directing deeds to be executed to the respective purchasers on payment of their bids; thereupon on the 26th November, 1826, the master executed a deed to Steuben Swartwout for his purchase, which was acknowledged the next day and recorded on the 9th December,. 1826. In all these proceedings no notice had been taken of the title having passed to the plaintiffs, the heirs of Samuel Requa, nor had anything been done to bring them in as parties, or to affect their rights.
    On the 15th August, 1826, one Minot Mitchell filed a bill in chancery against the heirs-at-law of Isaac Requa, deceased, claiming that the latter at his death was indebted to him in $200, and praying that the proceeds of the sale in partition might be applied to the satisfaction of his debt, and that the proceeds should be enjoined in the meantime. Mitchell made the heirs of Samuel Bequa parties to his suit. On the 16th August, 1827, a petition in that suit was made by Jacob Bequa. in the name of the heirs of Isaac and Samuel Bequa, and as administrator of Isaac Bequa, praying a reference as to the amount of Mitchell’s claim, and offering as administrator to pay it, and praying that the injunction should be dissolved. On this an order was made without opposition on the 8th September, 1827, for a deposit of' $500, out of the proceeds of the partition sales with the assistant register in chancery to answer the decree that Mitchell should obtain, and that the injunction in Mitchell’s suit should be thereupon dissolved.
    On the 1st October, 1827, (nearly a year after the deed to Swartwout had been made) the plaintiffs in the partition suit presented a petition to the Chancellor, stating the bill for partition, the decree for sale, and that Samuel Bequa, one of the defendants, “since the said proceedings or some of them” had died intestate, leaving heirs, &c. (naming the now plaintiffs among them) praying an order pursuant to the statute, that the suit stand revived against the heirs-at-law and widow of Samuel Bequa. On the same day an order was made ex parte that the suit do stand revived, &c., pursuant to the prayer of the petition.
    On the 16th July, 1829, (two years and eight months after the deed to Swartwout) a consent was given, reciting the sale in the partition suit, and that an injunction was laid on the proceeds by a suit in the name of William Van Wart to secure a claim against Isaac Bequa, and- that Harriet Bequa, widow of Isaac, was nevertheless entitled to dower in all his lands, and thereupon consenting that one-third of the amount of all the sales should be invested by the assistant register in chancery, and that he should pay the interest to her for life, and that the principal abide the further order of the court. This consent was signed by Yan Wart’s solicitor, and by William H. Dyckman, solicitor for Daniel Bequa (the brother of Isaac Bequa, deceased), “ and others of the defendants." On filing this consent an order was entered by the complainant’s solicitor in the partition suit' for such investment, amounting to $1,593.20. The consent and order were entitled in the suit' of Van Wart against the heirs of Isaac Requa, including the plaintiffs, and also in the original partition suit with the plaintiffs’ names introduced as defendants.
    On the 2d May, 1836, the defendant Holmes, acquired his title by a deed from Steuben Swartwout, who, in consideration of $7,000 (over $300 per acre) conveyed twenty-three acres of the one hundred and twenty-three acres purchased at the partition sale (for $29 per acre) with fall covenants and warranty.
    It subsequently appeared that, excepting the $500 deposited to answer Mitchell’s claim, and the $1,593.20 for Isaac Requa’s widow, the proceeds of the sale had never been brought into court; thereupon, on the 27th May, 1841 (four years after the deed to the defendant, and fourteen years and more after the deed to Swartwout), a petition was presented to have these proceeds brought into court. It was entitled in the partition suit, introducing the names of the original defendants and Samuel Requa’s children in his place. ' It was sworn to by Jacob Requa, and purported to be in behalf of all the said defendants, setting forth on information merely, and with much incorrectness as to dates, the bringing of the partition suit some time prior to August, 1826; that the lands were sold on the 21st August, 1826; the order of the master to execute the deeds; that the moneys were paid, not to the master, but the solicitor of the complainants; that he was using them without any separate deposit, except the two sums of $500 and $1,593.20; “ that after the decree for the sale Samuel Requa died, and that in October, 1827, the proceedings were revived against his heirs-at-law.” The prayer was that the solicitor should account for the money. Mr. Dyekman, the solicitor for the petition, testified that he was never employed by the heirs of Samuel Requa in the partition suit nor until the suit of Mitchell had been brought; that he did not know the date of Samuel Requa’s death, and took the information in the petition from a statement of the complainant’s solicitor in the partition suit. It did not appear that any order was made upon this petition, although the solicitor who had the money, resisted it.
    In October, 1854, while this suit was pending in the Court of Appeals, Harriet Requa, the widow of Isaac died, and the $1,593.20 set apart for her dower interest became liberated. On the 11th May, 1855, Jacob Requa, in his own name alone, presented a petition entitled in the partition suit for the distribution of this dower fund, of which he claimed that he was entitled to one-eighth of one-sixth, and prayed an order of reference as to the persons entitled to it. An order was thereupon entered of course by his attorney, Irving Paris, referring it to a referee. On the 19th October, 1855, after advertising for parties in Hew York city newspapers, the referee reported that the plaintiffs were each entitled to Tf $ parts of the dower fund; and an order was made on the 24th October, 1855, for the payment of the dower fund accordingly. The plaintiffs gave to Jacob Requa a power of attorney to receive their shares of the fund so invested, and on the 21st December, 1855, Jacob Requa, as their attorney, received the amounts, being $31.02 each.
    On the 15th March, 1862, a notice in the name and on behalf of the plaintiffs was served on the defendant, notifying him that the money thus received was not received with any intent or purpose to ratify or adopt any sale of the lands in said partition suit, nor with any understanding of any such supposed effect, and offering to refund or replace the sums received with interest. The plaintiffs accordingly on the trial refunded the money with interest, and paid the same into court.
    The plaintiffs limited their claim for rent and occupation of the premises in dispute to six years prior to the trial, and withdrew all testimony relative to any anterior period, the defendant not objecting. Evidence was given by the defendants as to the value of the improvements put on the premises by the defendant, and those claiming under him. It was admitted that the mesne profits were absorbed by the improvements. The jury, by the direction of the court, found that the permanent improvements were of greater value than the rents and profits, and the plaintiffs were not, therefore, entitled to recover anything for mesne profits. To this direction there was no exception.
    When the plaintiffs rested the defendant moved for a non-suit which was denied, and.exceptions taken.
    At the close of the whole evidence the defendant’s counsel requested the court to submit the following questions of fact to the jury:
    1. Was there a ratification of the title under the master’s sale on the part of the plaintiffs ? .
    2. Did the plaintiffs elect to take the money instead of the land?
    3. Did the plaintiffs recover this money with a knowledge of all the proceedings, or with the means of knowledge ?
    The justice refused to submit any or either of these questions to the jury, and decided that there was no question of fact to be submitted to the jury, to which refusal and ruling the defendant excepted.
    The defendant’s counsel requested the judge to charge the jury that the plaintiffs were estopped from claiming title in this case. The judge refused, and an exception was taken.
    He further requested the judge to charge that the facts proved, established a ratification by the plaintiffs of the master’s sale. The judge refused so to charge.
    He further requested the judge to charge that the facts proved showed an election on the part of the plaintiffs, by taking the money, to ratify the title of the defendant under the partition sale. The judge refused so to charge.
    The judge then charged the jury that the evidence introduced by the defendant was insufficient to prevent the plaintiff’s recovery, to which the defendant excepted.
    The judge then directed the jury to find a verdict for the-plaintiffs for the premises in question according to their several interests; to which decision the defendant excepted.
    The- judge also charged and directed the jury that as the permanent improvements made upon the premises claimed, were proved and admitted to be in value greater than the rents and profits, the plaintiffs were not entitled to recover anything for the use and occupation, or- rents and profits of said premises. The jury thereupon rendered a verdict for the plaintiff in accordance with such direction of the judge.
    During the progress of the trial the defendant’s counsel excepted to several rulings of the judge.
    1st. To admitting in evidence the deeds from Jacob Requa to Nathaniel Requa, and from Amy Wiltsee to Grloade Requa; of the interest in the premises they acquired by descent from Clara Requa, who died pendente lite.
    
    2d. That evidence of the value of the use and occupation of premises was admissible.
    3d. To the refusal of the court to rule that the plaintiffs could not recover rent for improvements.
    4th. That an inquiry as to rental, upon a supposition of a perpetual lease, was proper.
    5th. To permitting the plaintiffs to limit their claim for mesne profits to six years prior to the trial, and to strike out the evidence relative to an anterior period.
    6th. To refusing to allow the defendant to prove that Swartwout and Holmes, after the respective deeds to them, improved the property with the knowledge of the plaintiffs, and- without objection from them.
    7th. To receiving in evidence the notice to the defendant that the plaintiffs, by taking the money, did not intend to ratify and adopt the partition sale, and their offer to refund the same.
    
      William C. Noyes, for the appellant.
    
      Daniel Lord, for the respondent.
   Wright, J.

This cause has been twice in this court, and if the legal principles controlling any case are ever to be deemed settled, they ought to be in the present one. ' The facts of the case were uncontradicted and without complication; and the principles of law applied to them neither intricate nor difficult to be understood.

It is conceded that Samuel Eequa, the immediate ancestor of the plaintiffs, was the owner of an undivided sixth part of the premises claimed, prior to April, 1826, by descent from his brother, Isaac Eequa. Samuel Eequa died intestate on the 18th June, 1826, leaving nine children, his heirs-at-law, of whom the plaintiffs are, or represent, seven. As such they claim by descent, seven-ninths of one-sixth part of the lands in suit, being about twenty-three acres, and are entitled to the same unless the defendant or his grantor, acquired their title under a decree in a partition suit in chancery, in which the heirs of Isaac Eequa were parties, commenced on the 18th April, 1826, to divide the lands that,had descended to the latter. The defendant is the grantee of the premises of Steuben Swartwout, who claimed title thereto under the partition proceeding, and a master’s deed; and the question between the parties is as to the effect of these proceedings, and this deed. [The learned judge here recapitulated the proceedings as before stated, and proceeded:]

On this precise state of facts, this court in 1857, when the cause was here for the first time, held that the proceedings in the partition suit, subsequent to the death of Samuel Eequa, were absolutely void as against his heirs, and that all the title the defendant obtained was that which the surviving parties to the partition suit had at the time of the decree for sale. (Requa v. Holmes, 16 N. Y., 193.) The question, therefore, as to the conclusiveness of the decree in this partition suit upon the rights of the plaintiffs, either by way of estopping them from claiming title as the heirs of Samuel Eequa, or otherwise, was settled, and we see no reason for reopening the argument.

2. With the view of mating the deed to Swartwout, the defendant’s grantor under these partition proceedings, effectual to bar the rights of the plaintiffs as children of Samuel Eequa, it was attempted to be shown that they had adopted, ratified and affirmed the partition sale, and all that the Court of Chancery did in the premises. It was proved that on the 16th August, 1827, Jacob Requa (who was the brother and administrator of Isaac Requa), made a petition in the name of the heirs of Isaac and Samuel Requa, and as such administrator, in a suit that had been brought by one Mitchell against the heirs of Isaac Requa to recover a claim of $200 against the estate of the latter, and in which the proceeds of the partition sale had been enjoined, praying a reference as to the amount of Mitchell’s claim, and that the injunction should be dissolved, and offering, as administrator, to pay the claim; and subsequently an order was made without opposition, for a deposit of $500 out of the proceeds of the partition sales, with the register in chancery to answer the decree which Mitchell should obtain. In October, 1827, at the instance of the complainants in the partition suit, an order was made ex parte that such suit stand revived against the heirs-at-law and widow of Samuel Requa. In July, 1829, an order was entered by the complainant’s solicitor in the partition suit for the investment by the assistant register in chancery of the sum of $1,598.29 (being one-third of the amount of the partition sales) as a dower fund for the widow of Isaac Requa. This order was entered on filing a consent signed by the solicitor of one Van Wart, who had commenced a suit against the estate of Isaac Requa and one Dyclcman, styling himself solicitor for Daniel Requa (a brother of Isaac) “ and others of the defendants,” and the consent and order were entitled in the suit of Yan Wart, and also in the original partition suit, with the plaintiffs’ names introduced as defendants. In May, 1841, at the instance of Jacob Requa, a petition was filed to have the proceeds of the partition sale brought into court. It was entitled in the partition suit, introducing' the names of the original defendants and Samuel Requa’s children in his place. Hone of the papers used on their application were signed by the plaintiffs, nor did they in any manner personally appear therein. In 1854, while the present action was pending in this court, the widow of Isaac Requa died; and on the 11th May, 1855, Jacob Requa, in his own name alone, presented a petition to the Supreme Court, entitled in the partition suit, for the distribution of the dower fund, and praying an order of reference as to the persons entitled to it. An order for the reference was entered by his attorney, and the referee reported that the plaintiffs were each entitled to T§? parts of the fund. On the 24th October, 1855, an order was made by the Supreme Court for the payment of the fund accordingly. The plaintiffs gave to Jacob Eequa a power of attorney to receiye their shares, and on the 21st December, 1855, he, as their attorney, received the amount, being $31.02 each.

This was all the evidence tending to show an adoption or ratification of the partition proceedings and sale by the plaintiffs ; and it has been decided by this court, as matter of law, on precisely the same evidence, that the facts adduced therefrom neither amounted to an estoppel of the plaintiffs, nor a ratification of the sale by them. On the first appeal to this court, all the evidence, except the receipt by the plaintiffs in 1855, of the shares of the dower fund of the widow of Isaac Eequa, was contained in the bill of exceptions, and was held insufficient to estop the plaintiffs from claiming title, or to establish a ratification by them of the master’s sale; and in 1861, when the case was again here, with the additional proof of the receipt of these shares of the dower fund, the same -conclusion was reached. Assuming that the plaintiffs were bound by the appearance of the attorney on the applications in- relation to the proceeds of the partition sale subsequent to the delivery of the master’s deed to the defendant’s grantor, it is difficult to perceive how the plaintiffs could be estopped from denying that their title passed by the sale. The sale was anterior to these applications; and whatever title Swartwout, the defendant’s grantor, acquired, was then perfect. If the grantor of the defendant acquired title to the undivided interest of the plaintiffs in the premises, it passed on the delivery of the master’s deed to him. Up to this time there had been no acts or declarations of the plaintiffs designed to influence the conduct of the defendant’s grantor, or which did so influence it, and there never were. Any subsequent applications of the plaintiffs, in respect to the proceeds of the partition sales, could not have had the effect to pass their title, or create an estoppel in pais. Nor did the receipt by the plaintiffs, under the circumstances, of their shares of the widow’s fund in the partition suit, amount to an adoption and ratification by them of the partition proceedings and sale, nor an election on their part to accept the sum of $31.02 each, as and for their interest in the premises sold. If, with a full understanding of their rights, they deliberately intended to receive this part of the proceeds of the sale in full of their claim and interest in the premises, they ought, unquestionably, to be held to their election ; for it would be inequitable for them to receive the proceeds of the sale, and still insist that the sale did not pass their title. But that was not this case. The money was received while the suit was pending in this court to enforce their claim to the lands, and they continued to prosecute it afterwards, and successfully, upon the facts then before the court. It is apparent that the plaintiff did not intend to adopt and ratify the partition sale, and take and receive their proceeds in lieu or substitution of their interest in, or claim to the premises, in respect to which this litigation was then pending. And this is the view that was taken of the question by this court when the case was here for the second time, in 1861. This case, as now presented, with the exception of that part which relates to the question of mesne profits, is, in every particular, the same as it was when before this court in 1861, on the second appeal; and all the questions now presented were then raised. The decision of the court was, that the plaintiffs were not ■ estopped by the decree of sale in the partition suit, nor by subsequent acts of theirs in relation to the proceeds of such sale, from asserting their title to the premises; that the proceedings in partition were not sufficient in law to transfer their title; that they did not amount to a ratification of the master’s sale by the plaintiffs; and that there was no case of an election, as the partition proceedings were not comprehensive enough to pass the plaintiffs’ title. As no new facts were presented to vary .this decision, the judge, at the circuit, was right in charging that the evidence introduced by the defendant was insufficient to prevent the plaintiffs from recovering, and in directing the jury to find a verdict in their favor.

There were several exceptions taken in the progress of the trial to the admission and exclusion of evidence that require to be briefly noticed:

1. After proving the death of Clara Eequa, an original plaintiff in the suit, without issue, which occurred in December, 1852, and leaving her surviving eight brothers and sisters, six of whom were original plaintiffs, and Jacob Eequa and Amy Wiltsie, who were not plaintiffs, the counsel for the plaintiffs offered in evidence two deeds, dated 28th June, 1859, one from Jacob Eequa to ¡Nathaniel Eequa (original plaintiff), and another from Amy Wiltsie to Grloade Eequa (also another original plaintiff), conveying the interest in the premises of Jacob and Amy, which they were seised of or entitled to as heirs-at-law of Clara Eequa. The defendants objected to the deeds being received in evidence, on the ground that they were void, the premises being held adversely at their date. The objection was not a valid one. There was no adverse possession so as to avoid the deeds under the champerty act.

2. "Various objections were taken to the admission or rejection of evidence applicable to the question of mesne profits; but these became immaterial, as the judge charged and directed the jury that the plaintiffs were not entitled to recover any thing for mesne profits, and on that question the judgment was in favor of the defendant.

3. One of the grounds urged for a nonsuit was, that the plaintiffs had not proved any ouster of themselves as tenants in common. This was sufficiently proved lay the production of the conveyance from Swartwout to the defendant, containing a covenant of seisin, and with warranty of title of the whole lands, and by proof of the entry and conduct of Swartwout’s grantees direct and subsequent.

4. The defendant offered to prove that Swartwout, and the successive purchasers under him, including the defendant, made improvements, enhancing the actual value of the premises, with the knowledge of the plaintiffs, and without any objection by them; but the judge refused to admit the evidence. It is not perceived how it was material. Their purchasers all took title in law to certain shares of the land, but not of the shares claimed by the plaintiffs. They improved at their- peril, as they had taken their title. As tenants in common with the plaintiffs, they had a right to improve the property as they thought fit; and, having entered in exclusion of the plaintiffs’ claims, they cannot set up that entry, and their acts under it, to defeat the plaintiffs’ title. The fact that the plaintiffs did not forbid them, established no estoppel of the former claiming title to the lands, and no equitable defence to the action.

5: A notice in the name and on behalf of the plaintiffs, was served on the defendant before the trial, notifying him that the money received as their shares of the dower fund of the widow of Isaac Eequa, was not received with any intent or purpose to ratify or adopt any sale of the lands in the partition suit, nor with any understanding of any such -supposed effect, and offering to refund and replace the sums received with interest. On the trial, the plaintiffs’ counsel read this notice in evidence, and offered to pay the money into court to abide its order. The defendant’s counsel objected to the admission of the notice, as well as to the money being received, on the ground that it was too late to make a proposition like that on the trial; but the court overruled the objection and directed that the money be deposited with the clerk of the court to the credit of the action, and that it be invested in the Hew York Life Insurance and Trust Company, to abide the further order of the court; to which decision and directin'!! the defendant excepted. The plaintiffs then deposited with the clerk of the court the sum of $350. I see no valid objection to this proceeding to be urged by the defendant. The defendant, claiming an equitable defence, by reason of a receipt on behalf of the plaintiffs, of money proceeding from the defendant’s predecessor in title, to which the plaintiffs were not entitled, the payment back of the money into court, was not improper. ■ The permitting of it by the court could not prejudice the defendant, if he had no connection with it; and if he had, it was proper to be done.

The judgment of the Supreme Court should be affirmed.

Balcom, J.

The defendant claimed title to the land in dispute under a sale that was made pursuant to a decree of the Court of Chancery, in a partition suit, in the year 1826. The plaintiffs claimed title to the land, as heirs-at-law of Samuel Bequa, deceased, who was a defendant in the partition suit, but died after the bill in that suit was taken as confessed, and before the decree was made for the sale of the land.

The defendant’s counsel has made the following points, among others, namely: 1. That the decree of the Court of Chancery, being made by a court of general jurisdiction, was conclusive against all who were parties or privies, and was not impeachable by any proof that the parties to the suit, or any of them, were not properly before the court; that the plaintiffs, being privies in blood and estate of Samuel Bequa, could not attack the decree collaterally in this action by proof that said Samuel died before it was made; that the only way they could avoid it was by a motion to set it aside, or by appeal or writ of error: 2. That the plaintiffs ratified the sale by.proceedings in court for the disposition of the proceeds of the sale of the land, and by receiving portions thereof, and were estopped, by such acts and by seeing the purchaser, or occupants who claimed title to land under him, making valuable improvements thereon without informing them that they claimed any interest in the land, from questioning the regularity or validity of the decree or sale under it.

Among the many cases cited by the defendant’s counsel in support of Ms first point are the following: Randall and Wife (2 Mod., 308); Plommer v. Webb (2 Ld. Raym., 1415); Reynolds, Varney and others v. Digman (Dyer, 89 b); and Griswold v. Stewart (4 Cow., 457). He also cited numerous authorities in support of his second point; but, in the view I feel constrained to take of the case, it would be useless to mention any of them.

The action is an ancient one. It was commenced in the year 1844. The defendants succeeded twice at the circuit and twice at the general term of the Supreme Court. But the two judgments in his favor were reversed by this court, and new trials were ordered. The plaintiffs succeeded on the third trial at the circuit, and the judgment then rendered in their favor is the one now under review. The opinion of this court in the case, the first time it was here, is reported in 16 Hew York, page 193; and that delivered the second time it was here has not been reported, but it is printed and annexed to the case.

This court decided, when the case was here the first time, that the plaintiffs could attack the decree of the Court of Chancery collaterally, by proof that Samuel Requa died before the same was made; and, when it was here the second time, that the plaintiffs were not estopped by what they had done from questioning the regularity or validity of the decree. Those decisions were concurred in by all the judges who were members of this court at the times they were pronounced.

The second time the case was in this court, it was substantially the same as it now is, so far, at least, as it affects the two points to which I have referred.

It would hardly be respectful, besides being presumptuous, in me, at the first term of my sitting in this court, to question the correctness of either of its decisions in this case, however strong my conviction might be that either was erroneous; and the pecuniary interests of the parties, as well as the general good, require that this court should exhibit stability in the case, rather than overrule either of the decisions it has pronounced in it. For, should we now overrule either of those decisions, counsel for the plaintiffs could not be blamed for bringing the case back here after another trial, and asking this court, when other judges shall be sitting in it, to go back and decide the case as it was determined the first and second times it was here.

The plaintiffs did not recover any damages for the withholding of possession of the land from them by the defendant. Hence, the points taken by the defendant at the trial, affecting the question of damages, may be regarded as out of the case.

There is no other question in the case that need be noticed. The judgment of the Supreme Court in the action must be affirmed, with costs.

All the judges concurring,

Judgment affirmed.  